[Congressional Record Volume 140, Number 45 (Thursday, April 21, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: April 21, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
BANKRUPTCY AMENDMENTS ACT OF 1993
The Senate continued with the consideration of the bill.
Amendment No. 1641 to Amendment No. 1640
Mr. SPECTER. Madam President, I have sought recognition to support
the pending amendment which calls for the United States to unilaterally
remove the arms embargo preventing the sale of weapons to the
Government of Bosnia and Herzegovina, because I think that this
amendment, this resolution, is reasonably calculated to help the
situation in Bosnia and Herzegovina.
There is no doubt about the atrocities of Serbian aggression against
those countries, about their inability to defend themselves, and about
the failure of Serbia and the Serbs to honor the wishes and sanctions
of the United Nations and declared world public opinion against the
atrocities which are being conducted there.
This resolution is different in two respects from a resolution which
was considered by the Senate on January 27, 1994.
First, that resolution was only a sense-of-the-Senate resolution.
This provision calls for forcible legislative enactment which will have
the force and effect of law, contrasted with the sense of the Senate,
which was the matter pending on January 27, 1994.
Second, the pending amendment omits one key provision from the sense-
of-the-Senate resolution of January 27, 1994 to this effect: The
earlier provision from January 27, 1994, said,
``The President should provide appropriate military
assistance to the Government of Bosnia and Herzegovina upon
receipt from that Government of a request for assistance in
exercising its right of self-defense under article 1 of the
United Nations Charter.''
Because of that provision, I voted against the sense-of-the-Senate
resolution on January 27, because I was unwilling to endorse a
proposition authorizing the President to provide appropriate military
assistance to the Government of Bosnia and Herzegovina, because I think
that that was, in effect, a blank check, or certainly could have been
interpreted to be a blank check.
When the reports came forward about the vote on the January 27
resolution, I received many objections to opposing the lifting of the
arms embargo and explained to those who inquired that I was not opposed
to lifting the arms embargo, but that I was opposed to the supplemental
provision which would authorize the President, really with a blank
check, to provide whatever military assistance he might deem
appropriate. That is the language which was covered.
One of the things which is frequently misunderstood is, when there
are news reports about the votes, they do not reflect many paragraphs
or many complications or many subtitles that may be comprehended. If
the thrust of the amendment is to lift the arms embargo and that is all
that is reported by the news media, the public does not understand that
there are other provisions which are potentially very troublesome.
So I take some time now to specify why I was against the January 27
resolution but feel that today's resolution is appropriate. I believe
that the atrocities which are being committed today in Bosnia and
Herzegovina are extraordinary in the annals of warfare, even
considering the atrocities with which we are familiar from World War II
and from other wars. It is a matter of great anguish that the civilized
world stands by and observes these atrocities in progress. It is a
matter that cannot be dealt with in any definitive way without ground
forces.
I believe that the U.S. policy is correct in not committing American
fighting personnel on the ground, which would be debilitating and a
quagmire and something which is just not what U.S. policy ought to be.
Deciding we are not going to be engaged in a ground war over there--and
that is the view of NATO as well and the United Nations as well--there
is no way, really, to take sufficient definitive steps in a forceful
way to stop the fighting there. We are then left with the option of the
air strikes, which I do support, realizing that the air strikes in and
of themselves are not going to be sufficient. The example of the war
against Iraq certainly demonstrates the fact that no matter how
forceful or how pounding and repetitive the airstrikes, the air strikes
in and of themselves are not going to be sufficient. The air strikes
also pose the problem of endangering the United Nations peacekeeping
forces which are on the ground there.
It is anomalous that we have peacekeeping forces there when there is
really no peace to keep. Questions have been directed to me: Would I
favor having U.S. personnel on the ground as part of the peacekeeping
force? I say categorically, no, I would not do that. I would not want
to jeopardize U.S. personnel as part of peacekeeping forces because
there is no peace to keep. Yet, if there are air strikes or there is
other action, even the elimination of the embargo, the U.N.
peacekeeping forces may be hostage there. So their safety and security
has to be taken into account.
It is a very complex matter. Some have suggested with some
forcefulness--and I am not sure but that it may be most appropriate--to
withdraw the peacekeeping forces so they are not at risk and to
intensify the air strikes as part of an action to remove the arms
embargo. This resolution does not go that far. We do not have to make a
decision on that at this time.
I am aware of the problem of the United States moving unilaterally. I
am aware of the administration's concern in not wanting to act
unilaterally when the sanctions were imposed through the United Nations
and that the United States relies upon joint international action in
maintaining other sanctions such as sanctions against Iraq, sanctions
which may not be working very well. So we are concerned about taking
unilateral action, the administration is, which may weaken our request
to other nations where we ask them to support international sanctions.
Notwithstanding that consideration, it is my view that the United
States ought to act unilaterally as the proposal is pending today, even
though it is contrary to a very important general principle of
supporting joint action with the United Nations. In supporting this
amendment, which has the force of law, it is then still subject to a
veto by the President and the necessity for a veto override. Judging
from the fact that the last resolution was agreed to by a vote of 87 to
9, there would be sufficient votes to override a veto. I would be
joining, so there would be no more than eight, and I am joining because
this amendment does not contain the blank check for the President to
use whatever force he may deem appropriate.
Madam President, it is my thought that when the international
community, including the Serbs, see this amendment having the force of
law and it moves forward in the legislative process and may come to the
President's desk for signature and may be signed and may be subject to
being enacted into law on an override, they will see that the United
States means business. At least the Senate means business. The House
will have an opportunity to pass upon all this.
Even though it is unilateral, perhaps it will have the effect of
expediting the United Nations or NATO to move with the United States in
eliminating the arms embargo. Certainly what is going on at the present
time is totally intolerable. This at least offers some hope to improve
that desperate situation.
For these reasons, I will be voting in support of this amendment.
I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Is the Senator from Massachusetts seeking recognition,
also?
Mr. KERRY. Madam President, I had just wanted to ask a question of
the Senator from Pennsylvania. I will be happy to wait.
Mr. GREGG. I yield to the Senator from Massachusetts. I noticed he
was here earlier.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KERRY. Madam President, I listened to the Senator from
Pennsylvania. I am very sympathetic to much of what he said. I do not
think any of us here are arguing about the level of atrocity or what
the civilized world ought to do. But the Senator has raised the issue
of unilateralness and sort of pushed it aside. He said: Notwithstanding
the unilateral issue, I think we ought to vote this way.
I wonder if the Senator really feels that is good policy on its face.
Or, perhaps, if there were an alternative way to approach this so, if
the resolution embraced an exhortation to the President to first move
multilaterally with some room for the President to be able to try to do
that immediately and then, in the event of the failure of the President
doing that, the embargo would be lifted notwithstanding a Russian veto
or any other excuses why it failed--but first to give the opportunity
to keep faith with the multilateral effort--does the Senator from
Pennsylvania not think that perhaps might be a way of accommodating a
lot of concerns of Senators and at the same time keeping faith with our
international responsibilities?
Mr. SPECTER. If I may respond, I think the Senator from Massachusetts
raises a very valid point. If we can achieve the elimination of the
arms embargo in a multilateral way, that would be preferable, instead
of the United States going its own way unilaterally. That matter is not
now before the Senate. I think the practical effect of this amendment
will be what the Senator from Massachusetts seeks to accomplish.
Right now, as I understand it, the administration is trying to
persuade our NATO allies and others in the United Nations that there
ought to be a multilateral elimination of the arms embargo. I think if
there is a strong vote out of the Senate, that will arm President
Clinton and the administration in their negotiating efforts.
One might ask why that was not accomplished with the 87-to-9 vote
before. I do not know the answer to that. Maybe they said it is only a
sense-of-the-Senate resolution, those are passed all the time and they
do not mean anything. I do not know that was the result. I have seen
some reactions to a sense-of-the-Senate resolution taken very
seriously. But whatever happened in the past we do not know. Now it
will have the force of law and it will move forward as part of this
bill as an attachment to the bankruptcy bill. It may be passed by the
House.
Then, if the President is unsuccessful in getting other nations to
join in a multilateral way, he may be forced to veto the bill. But we
are ratcheting it up. We are raising the stakes and, I think,
strengthening the President's hand in a very real sense, saying to our
allies: Go along because I am facing a legislative body which can make
law over my veto if you do not.
Mr. KERRY. I thank the Senator. I take it then if we were able to
come together, the Senator obviously would support it. I appreciate
that and appreciate his sensitivity to try to make that happen. I thank
the Senator from New Hampshire.
Mr. SPECTER. Madam President, if I might be recognized for another
second or two, and I do not want to impede on the Senator from New
Hampshire. There have been negotiations to try to modify the language
of this amendment. If it cannot be modified to take the multilateral
step initially--I think that will be a step in the right direction--but
absent that, I am prepared to vote in favor of this amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Madam President, I rise to address this amendment. I
believe it is reflective of some very significant problems which we
have in our foreign policy issues as a government, as a country. We
appear to be stumbling in our approach to foreign policy, something
like a bear coming out of hibernation, hitting this tree and that tree
and not having a distinct direction on the issue of how we handle
ourselves in the post-cold war period.
Unfortunately, this amendment which has been brought forth is just an
expression of that stumbling activity. It is more appropriate that we
should have a very specific framework that we should be acting on
rather than taking this piecemeal drip-drip-drip approach to foreign
policy. It is equally appropriate that the leadership for a coherent
and pervasive policy should be coming not from the Senate but from the
administration.
The fact that this type of amendment is being brought forward by this
body and that this body feels the compulsion to address this issue in
this way, I think, reflects the very serious problem which this
administration is having in the area of foreign policy in general,
Bosnia specifically, but more important, in defining for the American
people what the role of our country is in the post-cold war era.
This amendment represents a road to intervention, and I do not think
we should see it as anything other than that. It represents a step--and
a fairly significant one--down the path that will lead to or could lead
to involvement of American military personnel in Bosnia and in the
former Yugoslavia.
Before we step onto that path, we should know why we are on that
path, and we have not heard an explanation of that from this
administration. I think it is absolutely essential that we get such an
explanation before we pass this type of a resolution.
I would like to suggest that there are three basic standards that we
should be looking at in the post-cold war period as to when we use
American force and when we will put at risk American prestige in issues
that involve conflict.
Those three tests should involve: First, a question of defining the
conflict and whether it is a resolvable conflict; second, defining our
national interest; and third, defining a strategy for not only entering
the conflict but for getting out of the conflict. That should be done
in each instance where this administration or this body decides to go
forward and put at risk American lives.
In defining the conflict, we must first establish what is the nature
of the conflict. Is it an ethnic conflict? Is it a religious conflict?
Is it a conflict that has strong historical roots, or is it a conflict
that involves individuals desiring aggrandizement, either through
expansion of political base or expansion of land or expansion of
control over other individuals?
We have examples in very recent history of these different types of
conflicts. We have the situation that occurred in Iraq where you had an
individual who was attempting to expand his own personal role in the
world by using military force. A dictatorial action, a totalitarian
state taking action that was of a military nature, and we addressed
that.
We also have examples--and I think Bosnia is one of them--of
conflicts which go much deeper which are ethnic and religious and which
do not have a clear, defined good guy or bad guy, do not have a clearly
defined winner-loser scenario, that involve generations of hatred and
intense feelings within a community.
In the issue of Bosnia, it transcends towns and streets. It goes
throughout the former nation of Yugoslavia.
Another instance of that type of conflict is what happened in Lebanon
only a few years ago, where you had the various ethnic and religious
factions fighting each other in a conflict that was not easily
resolvable.
The second test is the issue of national interest. What is the
national interest? Is there a national interest? On that test, we, once
again, could look at the Iraqi situation where there was clearly a
national interest: Oil supply for the world was threatened. Or we can
look at North Korea where there is a national interest, because we are
talking about a renegade nation that contains or possesses, or soon
will possess, it appears, a capacity to deliver nuclear weapons, with
the vehicles to deliver those weapons and which will threaten,
therefore, a broad spectrum of the world.
The use of nuclear weapons is something we should be concerned about
and have a national interest in and contain it. But in Bosnia, we do
not have a national interest. In Bosnia, we have a conflict which is
regional in a part of the world where the United States has no
immediate national interest. If we are going to go into Bosnia, does
that mean we are also going to go into Rwanda? Are we going to go into
Azerbaijan? Are we going to go into the Kashmir? Are we going to go
into any number of hot spots around the world where there is conflict
going on and where the horror of that conflict equals or exceeds, as in
the case of Rwanda, what is happening in Bosnia?
So on the first two tests: Is the conflict resolvable? No, it
probably is not. This is an ethnic and religious conflict in which
today's events are a page in a long history, and it is just going to
continue. So that test is not met.
The second test is: Is there a national interest for the United
States if we get involved? No, I do not believe you can insert a clear
national interest for our Nation. If the national interest is defined
as stopping a horrific event--which this clearly is--then we cannot
limit ourselves to Bosnia.
Clearly, we must be in Rwanda, also. I do not think America wishes to
assert its strength across the globe in that manner. Rather, we must
pick those areas where we do have a national interest and where the
conflict is resolvable.
The third test is: If you get into the conflict, how do you get out?
Do we have an exit strategy? This proposal which is on the table today,
this amendment, is the first entry step into the conflict. Is there a
discussion of how we get out? What happens next? There has been a great
deal of that on this floor. But is there a clear definition of it
coming from the administration? No, there is not. Without that
definition, we make a very serious error to step into this arena.
So why are we at this point? Well, we are at this point because we
have not heard from the administration a clear defining of the national
role in conflicts like Bosnia, and because the administration and our
people and the Western World generally are being inexorably pulled into
the Bosnian morass by the fact that it is on television as a nightly
occurrence.
I would suspect that if we were getting the same type of video we are
getting from Bosnia, from Rwanda, or from Azerbaijan, we would be
equally outraged as a people and equally concerned. But we are not. Why
are we not? I think we have to be honest about it. We are not getting
it because Rwanda and Azerbaijan are not Western countries, they are
not part of the European Continent and, therefore, they are not readily
accessible to the international media, and also, they do not have a
certain similarity to the Western media that is demanded in order to
have the coverage.
But were the coverage there, it would be equal to or worse in showing
and displaying human suffering.
So we find ourselves being drawn by television into a conflict on
which there has been no clear, defined national policy set out for why
we should be in there other than the fact that it does appear on
television every night and that people are concerned about it.
That is not a legitimate reason to go into Bosnia. It is not a
legitimate reason to go into any part of the world where conflict is
going on and put at risk American lives. The last count I had, there
are today 42 conflicts going on in 39 different countries around this
world, and we cannot police them all. We should not choose the ones we
decide to police by the pressure which comes to us from the electronic
media. We should choose the ones that we decide to police by the tests
that I have laid out. First, is the conflict resolvable? Second, is
there a national interest? And third, is there a strategy for not only
entering the conflict but also exiting the conflict?
There is also a whole subset of issues which are raised by the Bosnia
situation which I think need to be fully aired before we go down this
road any further, and a major element in that subset, independent of
the question of having a national policy as to why we are choosing this
arena, a major element of that has to be the question of our
relationship to the United Nations and the U.N. command and control
over American troops.
It is a serious error for us to put American lives at risk because of
a decision made by a political leader serving at the behest not of the
President but of the United Nations. When American lives are put at
risk, it should be because an American commander has received a
directive from an American President or an authoritarian figure below
the Presidency in the American chain of command. We should never
abrogate that authority to another institution, another political
institution, as has already occurred in the Bosnian situation. We have
already heard reports of American military action being initiated as a
result of directives coming from political figures who are outside the
American chain of command and who are responsible to the United
Nations. And that is wrong.
Why is it wrong? People will say, well, the United Nations is a world
body, it is a police organization, and there are a lot of different
military forces attached to it from different countries. That is true.
But the United States is unique as a military force in the world today.
We are not like many of our allies or many of the other nations in this
world that maintain military force. We are the only superpower. We are
the only nation that has the capacity to project power around the globe
with devastating authority.
When American troops are put at risk, it draws that power into any
action that occurs. And to use that power arbitrarily or without a
thoughtful national policy, as was the first point I was making, or to
put that power at the disposal of a nonelected American official is a
serious error of public policy, because it draws much more weight to it
and much higher ramifications to it than when an agency of the United
Nations directs into action another nation's military forces.
And, also, as we learned regrettably, in Somalia Americans become
targets, not because they are with the United Nations but because they
are Americans. When you put American forces into a conflict situation
and you put them under the command of the United Nations, they become
the targets of activists in the nation where they are, regrettably,
because they are Americans.
So when you are putting them at that risk, you must be very careful
that they are under American command because the bottom line is you
have to explain this. You have to explain it to the mothers and the
fathers and the wives and the husbands and the children of the people
who lose their lives because they put themselves in harm's way as
American soldiers. That is a very difficult explanation to give unless
you, first, have a national policy, and, second, make it absolutely
clear that what they risk their lives for and, in some instances,
regrettably, gave their lives for, is American policy under American
command.
Right now we have neither in this instance. I have heard innumerable
talks on this floor from a variety of different, very eloquent
speakers, but one consistent theme appears to be for those who support
the resolution and those who oppose it, for those who support this
administration and those who feel the administration may vary on this
issue, that we as a nation have no national policy yet on how to handle
the situation. And until that national policy is elicited and defined
by this Presidency, it will not have such a policy because it is the
focus of the President from which that comes, not from the focus--as
important as we are in the process--of the Senate.
That brings up a broader issue, which is the whole question of how
this administration has approached the post-cold-war period, and I
think it has been obviously an administration finding its way. That has
been fairly clear to anyone who has watched and counseled or attempted
to view these activities.
But in the post-cold-war period we need more than that. We need a
very defined purpose of what America's role is in the world. That
defined purpose, in my opinion, must acknowledge that the new threat to
the world comes from renegade nations which have nuclear arms and may
use those arms. And when you want to rate what American national
interest is relative to other nations, you must put at the top of the
list to assure that renegade nations do not get nuclear arms and, if
they do get nuclear arms, they are put in a position where they will
not use them.
That, of course, moves to the top of the list the North Korean issue,
on which, again, we seem to have no policy as a country. But, clearly,
if we are to function in this post-cold-war period, we are not going to
be confronting ideological components. We may confront people who view
us in religious terms as opponents, but we are not going to be
confronting the Soviet concept of communism versus capitalism and a
world struggle over that issue.
What we are most likely going to confront is the renegade leader of a
nation who has had the capacity to develop a nuclear weapon and is
threatening to use that weapon or who is in the process of developing a
nuclear weapon. We must--unfortunately, the time has come--in North
Korea, make a very clear and definitive policy as to how we are going
to handle that situation the first instance it occurs. And the first
instance it is occurring is in North Korea.
So as we look at this proposal, I think we need to watch the whole
ball game. We need to look at the entire forest and not just look at
this tree, which it is. We cannot allow ourselves to sort of dribble
into this issue. We need, first, to have a clear definition of what the
American role is in Bosnia, what our national interest is, how we see
the conflict being resolved, and how American troops--if they are going
to be put in--get out. We need to understand that we cannot be drawn
into every conflict which becomes a national or international media
occurrence or dominant event.
We need to choose very intelligently and thoughtfully when and where
we are going to put American lives at risk. We need to understand that
putting American soldiers under the command of political figures within
the United Nations is something that should never occur. We need to
have an intelligent and thoughtful approach to what is the real threat
in the post-cold-war period, which is those nations which are obtaining
nuclear weapons or may be obtaining nuclear weapons and do not have
responsible leadership for the management of those weapons.
Those are the concerns that should be addressed, and that is the
priority that we should put in moving forward on the Bosnia issue.
For that reason, I do not support this resolution. I recognize I am
in a minority probably on that. But I see it as a step to the road to
American intervention, which has not been thought out; and as part of a
process in which we, if we proceed on, will end up losing American
lives without any way of explaining to American parents, wives,
husbands, and children the reason for the loss of that life.
I yield the remainder of my time.
Mr. ROTH addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. ROTH. Madam President, I support and cosponsor this amendment to
terminate the United States' arms embargo of the Government of Bosnia.
I believe this measure is necessary to provide much needed assistance
to the men, women and children of that nation--people who are fighting
for their property, their lives and future.
I believe this amendment follows the successful Reagan doctrine--that
the United States can, under proper circumstances, help people help
themselves. We all saw how well this doctrine worked in Afghanistan
where, with the assistance of United States arms, the Afghan people
turned back the world's single largest military, that of the former
Soviet Union. In that conflict, because of America's willingness to
help the freedom fighters, we did not--over the course of the
conflict--have to commit U.S. forces.
Rather, then, as now, our purpose was to help a valiant people defend
themselves. With the right policies, we were able to do just that.
Madam President, I do not believe there are any among us, who would
say that the people of Bosnia do not have the right to protect their
lives, their families and their property. Even today we hear the heart-
wrenching report of the Serb attack on the hospital in Gorazde. How
long do we suffer these atrocities to continue before we give the
people of Bosnia the wherewithal to defend themselves. Frankly, it
makes no sense for U.S. airmen to risk their lives to defend people who
we simultaneously deny the ability to defend themselves.
None of us wants to see this war escalated. Frankly, I hope that by
lifting this embargo we send a clear message that America wants to see
a speedy and equitable negotiated settlement. But I am afraid that
unless this embargo is lifted what we will see, instead, is continued
wholesale slaughter--as President Clinton said yesterday, the slaughter
of innocents.
Let me be clear, madam President, this measure in no way authorizes
or indicates a commitment of American men and women into this conflict.
I believe our troops must stay out of Bosnia. But it does allow our
Nation to assist men, women and children who are suffering needlessly
and with little opportunity for recourse.
Mr. MOYNIHAN. Mr. President, I have chosen to cosponsor the amendment
of the distinguished minority leader concerning lifting the arms
embargo on Bosnia because I have become convinced that the embargo
violates article 51 of the U.N. Charter. Like the U.S. Constitution,
the Charter is not a suicide pact. The inviolability of article 51 is
fundamental to the bargain entered into by nations when they ratify the
Charter. They agree to be bound by the decisions of the Security
Council, but on the basis that ``Nothing in the present charter shall
impair the inherent right of individual and collective self-defense * *
*.'' Such is the importance of the principle that the phrase is
redundant in its protections: ``Nothing'' in the charter shall impair
the right and the right is ``inherent''.
Hence I have cosponsored this amendment mandating that the United
States cease its support for the embargo.
That is not to say that I do not have concerns about whether this is
precisely the right approach or whether the wording of the amendment
could not be further refined in conference. If this were an easy issue
the blood would not now be flowing in the streets of Gorazde. The
President has just announced a new initiative; negotiations are about
to begin. I hope--and believe--that the Senate's vote on this
resolution will strengthen his hand, not weaken it. He has said that he
supports lifting the embargo. This amendment will demonstrate that the
Senate strongly supports this view.
There is another important issue--a constitutional issue--about which
I have some concerns regarding the precise language of the amendment.
Namely, I think that it might be desirable to clarify the meaning of
subsection (a) which states that the President shall not interfere with
the transfer of arms to the Government of Bosnia. I interpret this
prohibition narrowly to reach those areas in which the Congress has the
constitutional power to restrict the President. I do not believe, for
instance, the amendment should be read to imply that the President
could not say that he opposes lifting the embargo or even argue that
other states should continue to enforce the embargo. The constitutional
power of the President to articulate his own views or to communicate
with other nations cannot be controlled by Congress. I know that this
is not the intention of the minority leader and the amendment should
not be read to attempt to control the President's speech.
Nor does the amendment affirmatively mandate that the United States
provide arms to Bosnia. It prohibits interference with Bosnia receiving
arms. There is a difference.
Mr. President, there is a long history of congressional involvement
on questions of arms embargoes and neutrality acts. It is appropriate--
indeed, essential--that the Senate speak on this issue and I commend
the minority leader and also the distinguished Senator from Connecticut
on their leadership on this issue.
Mr. KEMPTHORNE. Mr. President, like every American, I am appalled and
shocked by the killings, rape, ethnic cleansing, and other atrocities
currently taking place in Bosnia.
Last year, in response to these outrages, I cosponsored a resolution,
Senate Resolution 79, offered by Senator Feingold to lift the arms
embargo on Bosnia. Today, I will join the distinguished Republican
Leader, Senator Dole, and Senator Lieberman, in cosponsoring the
amendment currently before the Senate. I will cosponsor this amendment
to once again signal my support for lifting the U.N. arms embargo on
Bosnia.
Americans and people everywhere understand the right of self-defense.
After the breakup of the former nation of Yugoslavia, the Serbs took
possession of the bulk of weapons from the Yugoslavian military. As the
three-way civil war erupted, the United Nations enacted an arms embargo
on Bosnia, Serbia, and Croatia. In effect, however, this arms embargo
denied the Bosnian Moslems the right to acquire arms to defend
themselves against Serbian aggression. As a result of the arms embargo,
Serbia and Bosnian Serbs had a monopoly on the heavy weapons they
needed to conquer and carve up Bosnia. The ebb and flow of violence and
atrocities we have seen are the tragic result of this policy.
For some time, the U.S. Senate has called on the President to lift
the arms embargo on Bosnia so that the Bosnian Moslems can defend
themselves. Unfortunately, because of opposition from our allies with
troops on the ground, the President failed to convince our NATO
partners to lift the arms embargo. Given the current siege of Gorazde
and my opposition to increased United States military involvement in
Bosnia, I believe it is time for American to show its leadership and
lift the arms embargo against Bosnia.
While I want to allow the Bosnian Moslem to acquire the weapons they
need to defend themselves, I strongly oppose any effort to increase the
U.S. military involvement in this quagmire. Likewise, I continue to
strongly oppose the Clinton administration policy of giving the U.N.
commanders on the ground the authority to call for NATO and U.S.
airstrikes. I fear we are seeing mission creep like we saw in Somalia,
where U.S. military involvement escalates in support of United Nations'
policies.
I strongly oppose any increased United States military involvement in
Bosnia because, to begin with, the President has not given the American
people a clearly defined objective for our military involvement. As far
as I can tell, no one in this Government can tell us how our air
attacks are supposed to bring about peace in Bosnia. Indeed, as
recently as 2 weeks ago, the Chairman of the Joint Chiefs of Staff,
General Shalikashvili, warned that air attacks won't stop the Serbian
attacks on Gorazde because, unlike Sarajevo, where the Serbes used
tanks and heavy artillery, the Serbs are now using small arms to take
Gorazde.
I oppose increased United States military involvement in Bosnia
because its a bad idea that will not end the suffering--but may prolong
it. I oppose United States military involvement in Bosnia because it
will not lead to negotiations between the parties--but may even delay
them. I oppose military involvement because it leads us to the slippery
slope of intervention--and none of us can see an end to it.
Mr. President, I rise in strong support of the Dole-Lieberman
amendment to lift the arms embargo against Bosnia. I do so with the
hope and belief that by giving the Bosnia Moslems the ability to defend
themselves, this terrible ethnic civil war can be brought to an end. I
support this amendment with the recognition that my support for this
action in no way authorizes or encourages a greater United States
military involvement in Bosnia. I support this amendment to forestall
the looming danger of allowing the United Nations to drag the Armed
Forces of the United States and NATO more deeply into this centuries
old conflict.
Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HEFLIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Harkin). Without objection, it is so
ordered.
Mr. HEFLIN. Mr. President, we have been working all day long to reach
accommodating language for various Senators that have had differences
on amendments that were before us. We have reached accommodation on a
number of amendments, and so we will go forward at this time.
Amendment No. 1642
(Purpose: To amend section 522 of title 11, United States Code, with
respect to avoiding certain liens that impair exempt property)
Mr. HEFLIN. On behalf of Senator Johnston and Senator Breaux, I send
an amendment to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. Without objection, the other amendments will
be set aside and the clerk will report this amendment.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Johnston,
for himself and Mr. Breaux, proposes an amendment numbered
1642.
Mr. HEFLIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 235, between lines 13 and 14, insert the following:
SEC. 311. NONAVOIDABILITY OF FIXING OF LIEN ON TOOLS AND
IMPLEMENTS OF TRADE, ANIMALS, AND CROPS.
(a) Admendment.--Section 522(f) of title 11, United States
Code, as amended by section 303(c), is amended--
(1) by striking ``Notwithstanding any waiver of
exemptions,'' and inserting ``(1) Notwithstanding any waiver
of exemptions but subject to paragraph (2)'';
(2) by striking ``(1) a judicial'' and inserting ``(A) a
judicial'';
(3) by striking ``(A) is not assigned'' and inserting ``(i)
is not assigned'';
(4) by striking ``(B) includes a liability'' and inserting
``(ii) includes a liability'';
(5) by striking ``(2) a nonpossessory'' and inserting ``(B)
a nonpossessory'';
(6) by striking ``(A) household'' and inserting ``(i)
household'';
(7) by striking ``(B) implements, professional books, or
tools,'' and inserting ``(ii) implements, professional books,
or tools''
(8) by striking ``(C) professionally'' and inserting
``(iii) professionally''; and
(9) by adding at the end the following new paragraph:
``(2) In a case in which State law that is applicable to
the debtor--
``(A) permits a person to voluntarily waive a right to
claim exemptions under subsection (d) or prohibits a debtor
from claiming exemptions under subsection (d); and
``(B) permits the debtor to claim exemptions under State
law without limitation in amount, except to the extent that
the debtor has permitted the fixing of a consensual lien on
any property,
the debtor may not avoid the fixing of a lien on an interest
of the debtor or a dependent of the debtor in property if the
lien is a nonpossessory, nonpurchase-money security interest
in implements, professional books, or tools of the trade of
the debtor or a dependent of the debtor or farm animals or
crops of the debtor or a dependent of the debtor.''.
(b) Application of Amendment.--The amendments made by
subsection (a) shall not apply with respect to a case
commenced under title 11, United States Code, before the date
of enactment of this Act.
Mr. JOHNSTON. Mr. President, today we are considering legislation
which streamlines one of the most litigated sections of the United
States Code. The amendment that I am offering will expand this
legislation to clarify a section of the Bankruptcy Code which has had a
chilling effect on the extension of credit to agriculture producers and
caused great concern among agriculture lenders who have been impacted
by section 522(d) of title 11 of the United States Code.
As a result of various exemptions set forth in the Federal Bankruptcy
Code, some States, including Louisiana, have chosen to opt out of the
Federal exemption format under section 522(d) and create their own list
of exemptions from seizure in bankruptcy cases. Thus, when a debtor
files for bankruptcy he or she can avoid certain liens if they affect
property that is exempt under State statutes. The purpose of these
exemptions is to protect the debtor and his family from being reduced
by financial misfortune to absolute want and becoming a public charge.
The exemptions provided by States like Louisiana have not been a
problem until recent rulings on a new line of bankruptcy cases which
have allowed debtors in bankruptcy to avoid liens and security interest
affecting property which is exempt from seizure, generally including
collateral consisting of the tools of the trade by which the debtor
earns his or her living. For example, in Owen v. Owen, 111 S.Ct. 1833
(1991), the court held that since Federal law determines the
availability of lien avoidance, the State may not ``opt out'' of the
lien avoidance provision of section 522(f) regardless of a State
exemption, giving the debtor the opportunity to avoid the security
interest irrespective of a possible waiver within the security document
itself of the exemption. More recently, a Texas bankruptcy court held
that a farmer's statutorily exempt tools of the trade included two John
Deere tractors valued at over $47,350 and that the farmer could
therefore avoid security interests in them.
Because of this situation, many bankers in rural areas and especially
agricultural lenders are restricting credit to farmers who voluntarily
want to secure such a loan with farm equipment or other assets
construed as tools of the trade. Consequently, this has impacted the
availability of needed credit to farmers and raised concerns from the
agricultural community in affected States about the overriding weight
of possible protection provided under the tools of the trade statutes
in the event of a chapter 7 or 12 bankruptcy proceeding.
My amendment would make it clear that in States similar to Louisiana
that have opted out of the Federal exemption format under section
522(d) debtors could not avoid the fixing of a lien if the lien is a
nonpossessory, non-purchase-money security interest in tools of the
trade and the State law prohibits the debtor from avoiding the fixing
of the lien.
Mr. President, the Owen decision, in particular, is having a serious
impact on the extension of credit to agricultural producers,
particularly in those cases where tractors, combines, and other big
ticket items form a substantial, if not a majority, portion of a
farmer's assets available for collateral purposes. On the other hand,
banks are being denied a good loan opportunity based on the financial
risks associated with current interpretation of the Federal exemption
format under section 522(d). I hope my colleagues will join me in
support of this amendment. I ask unanimous consent that the texts of
letters from the Louisiana Farm Bureau and Louisiana Bankers
Association be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Louisiana Farm Bureau
Federation, Inc.,
Baton Rouge, LA, March 28, 1994.
Hon. J. Bennett Johnston,
U.S. Senate,
Washington, DC.
Dear Senator Johnston: I am writing on behalf of the Board
of Directors of Louisiana Farm Bureau Federation to advise
you that we considered some proposed amendments to the
Bankruptcy Code concerning the ``tools of the trade''
exemption during our meeting here last week. I have copies of
correspondence sent to you earlier by various banking
interests in the state, and it appears from that
correspondence that a full explanation of the problem would
be cumulative. We believe that the availability of credit to
persons actually engaged in farming overrides any
consideration of the possible protection of ``tools-of-the-
trade'' assets in the event of a Chapter 7 or 12 bankruptcy
proceeding. Since the Supreme Court decision in Owen v. Owen
has led some bankruptcy courts to set aside security
interests in ``tools of the trade'' that heretofore could
accompany assets otherwise exempt from seizure under state
law, we believe the best solution is an amendment to the code
that allows state law to follow and encumber otherwise exempt
assets for those states that have opted out of the federal
list of exemptions in Section 522(d) of Title 11. The Owen
decision is having a chilling effect on the extension of
credit to agricultural producers, particularly in those cases
where tractors, combines and other big ticket items form a
substantial, if not a major, portion of a farmer's assets
available for collateral purposes.
At the time of our board meeting, we did not have a copy of
Congressman Sarpalius' bill and have not yet had the
opportunity to read it. If the bill is confected the way we
understand it to be however, we are urging that the
provisions of H.R. 339 be incorporated in S. 540 by Senator
Heflin, or at the very least, that you lend your support to
the House bill as it makes it way through Congress. While
some argument can be made on the opposite side of this
question, we believe that the best interests of farmers are
served by the ability to collateralize assets used in the
actual farming operation where that is necessary. I will be
pleased to discuss this matter with you should the need
become apparent at a later date.
With best wishes, I am
Sincerely yours,
Ronald Anderson,
President.
____
Louisiana Bankers Association,
Baton Rouge, LA, April 19, 1994.
Hon. J. Bennett Johnston,
U.S. Senate, Washington, DC.
Dear Senator Johnston: On behalf of Louisiana's banking
community, I request your help in correcting a tremendous
problem that has arisen in the application of the ``tools of
the trade'' in personal bankruptcy. If left unresolved it
will have an increasingly negative impact as lenders will be
unable to lend to otherwise credit-worthy borrowers. Already
bankers have had to decline loans because of this problem.
Below is a brief background on the problem.
A new line of cases allows debtors in bankruptcy to avoid
liens and security interest affecting property which is
exempt from seizure generally, including collateral
consisting of the ``tools of the trade'' by which the debtor
earns his living. First, in Owen v. Owen, the U.S. Supreme
Court overturned established 5th Circuit precedent (In re
McManus, 681 F.2d 353 (5th Circuit 1982), and held that a
debtor could avoid a lien on property which would, but for
the lien, be exempt from seizure under state law (or, if the
state did not provide a list of exemptions, those given in
the Bankruptcy Code). More recently, a Texas Bankruptcy court
held a farmers statutorily exempt ``tools of the trade''
included two John Deere tractors and that the farmer could
therefore avoid security interests in them, In re Nash 142
B.R. 148 (Bkrtcy., N.D. Tex. 1992).
The Bankruptcy Code itself provides that certain listed
types of property are exempt from seizure to satisfy the
debtors' creditors; it was also possible for the states,
after enactment of the Bankruptcy Code, to ``opt out'' of the
federal exemption list and create their own list of
exemptions from seizure. Many states, including Louisiana,
have done so. Thus when a debtor files for bankruptcy he can
avoid certain liens if they affect property that is exempt.
This has not been a problem in Louisiana until Owen case was
decided, since Louisiana had defined exempt property to
exclude items which the debtor had voluntarily encumbered, In
re McManus. However, in Owen v. Owen the U.S. Supreme Court
said that the test for determining whether a debtor can avoid
a security interest in exempt property--whether exempt on the
federal or state list--is to ``ask not whether the lien
impairs an exemption to which the debtor is in fact entitled,
but whether it impairs an exemption to which he would have
been entitled but for the lien itself.'' Owen v. Owen by
Justice Scalia.
In the agricultural context exemplified by In re Nash this
principle can permit a debtor to avoid a nonpurchase-money
security interest in expansive farm equipment if it is
characterized by a court as the debtor's tools of the trade.
Do not be misled because purchase money security interests
are not jeopardized by this avoidance power. While a debtor
may not use the Bankruptcy Code to avoid a purchase money
security interest in farm equipment, if he refinances that
purchase money debt it loses the purchase money status and he
can then avoid the security interest. A recent Louisiana
bankruptcy court decision permitted exactly that result with
respect to office equipment: refinancing of a purchase money
loan caused the collateral to lose its purchase money
security interest status and the debtor avoided the security
interest under the Bankruptcy Code, In re Nader, No. 92 BK-
112880507, Jan. 26, 1992, Shreveport Div., W.D. La.
Clearly the borrower would now be unable to use his assets
as collateral. Borrowers are denied credit otherwise
available and bankers denied a good loan opportunity.
I greatly appreciate the efforts of Mike Gougisha and Jeff
Martin of your office in assisting us in resolving this
problem. They are to be commended for their genuine concern
and persistence.
Thanks for your attention to this matter.
Sincerely,
Robert T. Taylor,
Director of Government Relations.
Mr. GRASSLEY. Mr. President, in regard to this amendment, I am
agreeing to take this amendment. I had concerns about how the original
amendment would affect farmers in my State of Iowa. I have discussed
with the Senator from Louisiana my concerns without fully knowing the
impact of this amendment on that. And he knows I am reserving my right
to work on this language further in conference to clarify its intent.
I appreciate Senator Johnston's efforts that he has already taken to
narrow his original amendment. So I do accept the amendment at this
point in time.
Mr. HEFLIN. I urge the amendment be agreed to.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1642) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1643
(Purpose: To amend section 1328 of title 11, United States Code, to
exclude from discharge debt for money, property, services, or credit
obtained by false pretense, false representation, or fraud)
Mr. HEFLIN. Mr. President, I send an amendment to the desk by Senator
Bryan, dealing with matters pertaining to money, property, services
obtained by false pretenses, false representation or fraud, and ask for
its immediate consideration.
The PRESIDING OFFICER. Without objection the pending amendments are
set aside and the clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Bryan,
proposes an amendment numbered 1643.
Mr. HEFLIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 235, between lines 13 and 14, insert the following:
SEC. 311. NONDISCHARGEABILITY OF DEBT FOR MONEY, PROPERTY,
SERVICES, OR CREDIT OBTAINED BY FALSE PRETENSE,
FALSE REPRESENTATION, OR FRAUD.
Section 1328(a)(2) of title 11, United States Code, is
amended by inserting ``(2)(A),'' after ``paragraph''
Mr. HEFLIN. I urge adoption of the amendment.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1643) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote.
Mr. GRASSLEY I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1644
(Purpose: To amend section 152 of title 28, United States Code,
concerning recommendations by the Judicial Conference for the
appointment of additional bankruptcy judges)
Mr. HEFLIN. Mr. President, I send to the desk an amendment by Senator
Feinstein dealing with the matter of recommendations by the judicial
conference for the appointment of bankruptcy judges and ask for its
immediate consideration.
The PRESIDING OFFICER. Without objection the pending amendments will
be set aside. The clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mrs. Feinstein,
proposes an amendment numbered 1644.
Mr. HEFLIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 160, between lines 6 and 7 insert the following:
SEC. 116. RECOMMENDATIONS OF THE JUDICIAL CONFERENCE FOR THE
APPOINTMENT OF BANKRUPTCY JUDGES.
Section 152(b) of title 28, United States Code, is amended
by adding at the end the following new paragraph:
``(4)(A) If, as a result of a review of judicial districts
under paragraph (3), the Judicial Conference determines that
there is a need for a number (including a fractional number)
of additional bankruptcy judges for any judicial district,
but the Judicial Conference determines to submit to Congress
a recommendation that the appointment of a lesser number of
bankruptcy judges be authorized for that district, the
Judicial Conference shall submit with the recommendation a
statement detailing--
``(i) the difference between the number of additional
bankruptcy judges that has been determined to be needed and
the number recommended to be authorized; and
``(ii) the methods by which those numbers were determined.
``(B) If the Judicial Conference has submitted to Congress
a recommendation that a lesser number of additional
bankruptcy judges be authorized to be appointed than a review
of judicial districts shows is needed for a judicial
district, the Judicial Conference shall submit a subsequent
recommendation that satisfies the continuing need for
additional bankruptcy judges for that judicial district
unless--
``(i) the Congress, without having received such a
recommendation, authorizes the requisite number of additional
bankruptcy judges to be appointed for that district; or
``(ii) a subsequent review of judicial districts shows that
that number of additional bankruptcy judges is no longer
needed for that district.''.
Mrs. FEINSTEIN. Mr. President, I want to first thank the managers of
this complex and comprehensive legislation for their courtesy and
cooperation in accepting my amendment, which will assist Congress in
accurately determining how and where to meet the judgeship needs of the
Nation's bankruptcy courts.
Under current law, Mr. President, the Judicial Conference of the
United States is required to conduct what is called a biennial survey
every 2 years to determine the continuing need for bankruptcy judges in
every judicial district in America. The data collected forms the basis
of recommendations that the statute requires the Conference to make to
Congress as to how many judges are needed, and where they should
preside.
Congress is not bound to follow the Conference's advice. The
Conference's suggestions are intended, however, to keep judicial
caseloads--and, therefore, bankruptcy processing times--at or near an
acceptable level set by the Conference.
This is no easy task, Mr. President, and I commend the Conference for
the efforts that it has made in the past to expedite bankruptcy cases
for both debtors and creditors. Such speed serves all who come into
contact with the court system and is a stabilizing force in our economy
at large.
In recent years, however, the Judicial Conference's recommendations
have left several judicial districts across the country--including
California's four districts--short of the number of judges needed to
achieve the caseload targets established by the Conference itself.
My amendment is intended, Mr. President, to strike a balance between
the deference owed by Congress to the Judiciary in operating the
Nation's courts and the pressing need in California and many other
States to obtain adequate judicial resources. To that end, it would
modify title 28 of the United States Code at section 152(b)(3) to:
First, require that, if the Judicial Conference recommends that
Congress create fewer judgeships in a given district than its biennial
survey finds to be actually needed to establish normal caseloads, the
Conference must disclose that fact and its calculation methods to
Congress and quantify the degree to which the district is being
understaffed; and second, require the Conference to recommend to
Congress an adequate number of judges to meet the needs of any district
whose needs were not satisfied by the conference's previous
recommendations.
My amendment does not--I hasten to add--create new judgeships, modify
any existing judgeships, affect the Conference's discretion to conduct
its biennial survey in the manner it thinks best, or change the target
caseload used by the Conference to make its recommendations.
Accordingly, Mr. President, I believe that it is both budget- and
deficit-neutral.
In conclusion, Mr. President, I want to again thank the managers of
the bill and the Judicial Conference for its hard work in the past. As
a member of the Appropriations Committee, I look forward to working
with all three in the future to provide America's bankruptcy courts
with the resources that they--and the public--so seriously need.
Mr. HEFLIN. I urge passage of the amendment.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1644) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1645
(Purpose: Substitute section on professional fees)
Mr. HEFLIN. Mr. President, I send an amendment to the desk by Senator
Metzenbaum, dealing with professional fees in regard to bankruptcies,
and ask for its immediate consideration.
The PRESIDING OFFICER. Without objection the pending amendments will
be set aside. The clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Metzenbaum,
proposes an amendment numbered 1645.
Mr. HEFLIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 231, strike line 11 and all that follows through
page 234, line 6, and insert the following:
SEC. 309. PROFESSIONAL FEES.
Section 330(a) of title 11, United States Code, is amended
to read as follows:
``(a)(1) After notice to the parties in interest and the
United States Trustee and a hearing, and subject to sections
326, 328, and 329, the court may award to a trustee, an
examiner, a professional person employed under section 327 or
1103--
``(A) reasonable compensation for actual, necessary
services rendered by the trustee, examiner, professional
person, or attorney and by any paraprofessional person
employed by any such person; and
``(B) reimbursement for actual, necessary expenses.
``(2) The court may, on its own motion or on the motion of
the United States Trustee for the District or Region, the
trustee for the estate or any other party in interest, award
compensation that is less than the amount of compensation
that is requested.
``(3)(A) In determining the amount of reasonable
compensation to be awarded, the court shall consider the
nature, the extent, and the value of such services, taking
into account all relevant factors, including--
``(A) the time spent on such services;
``(B) the rates charged for such services;
``(C) whether the services were necessary to the
administration of, or beneficial at the time at which the
service was rendered toward the completion of, a case under
this title;
``(D) the total value of the estate and the amount of funds
or other property available for distribution to all
creditors, both secured and unsecured;
``(E) whether the services were performed within a
reasonable amount of time commensurate with the complexity,
importance, and nature of the problem, issue, or task
addressed; and
``(F) whether the compensation is reasonable based on the
customary compensation charged by comparably skilled
practitioners in cases other than cases under this title.
``(4)(A) Except as provided in subparagraph (B), the court
shall not allow compensation for--
``(i) unnecessary duplication of services; or
``(ii) services that were not--
``(I) reasonably likely to benefit the debtor's estate; or
``(II) necessary to the administration of the case.
``(B) In a chapter 12 or chapter 13 case in which the
debtor is an individual, the court may allow reasonable
compensation to the debtor's attorney for representing the
interests of the debtor in connection with the bankruptcy
case based on a consideration of the benefit and necessity of
such services to the debtor and the other factors set forth
in this section.
``(5) The court shall reduce the amount of compensation
awarded under this section by the amount of any interim
compensation awarded under section 331, and, if the amount of
such interim compensation exceeds the amount of compensation
awarded under this section, may order the return of the
excess to the estate.
``(6) Any compensation awarded for the preparation of a fee
application shall be based on the level and skill reasonably
required to prepare the application.''.
Mr. HEFLIN. I urge adoption of the amendment.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1645) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1646
(Purpose: To clarify the effect of conversion of a case under chapter
13 to another chapter)
Mr. HEFLIN. Mr. President, I send an amendment to the desk by Senator
Metzenbaum dealing with clarifying the effect of conversion of a case
under chapter 13 to another chapter and I ask for its immediate
consideration.
The PRESIDING OFFICER. Without objection the pending amendments will
be set aside. The clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Metzenbaum,
proposes an amendment numbered 1646.
Mr. HEFLIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 235, between lines 13 and 14 insert the following:
SEC. 311. CONVERSION OF CASE UNDER CHAPTER 13.
Section 348 of title 11, United States Code, is amended by
adding at the end the following new subsection:
``(f) When a case under chapter 13 is converted to another
chapter--
``(1) property of the estate in the converted case shall
consist of property of the estate, as of the date of filing
of the petition, that remains in the possession of or is
under the control of the debtor on the date of conversion;
and
``(2) valuations of property and of allowed secured claims
in the chapter 13 case shall apply in the converted case,
with allowed secured claims reduced to the extent that they
have been paid in accordance with the chapter 13 plan.''.
Mr. HEFLIN. I urge adoption of the amendment.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1646) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1647
(Purpose: To amend section 525 of title 11, United Sates Code, to
prohibit denial of a student grant or loan on the ground that a loan
applicant has been a debtor in a bankruptcy proceeding)
Mr. HEFLIN. Mr. President, I send an amendment by Senator Metzenbaum
to the desk which amends section 525 of title 11 to prohibit denial of
a student grant or loan on the grounds that the loan applicant has been
a debtor in a bankruptcy proceeding and ask for its immediate
consideration.
The PRESIDING OFFICER. Without objection the pending amendments will
be set aside and the clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Metzenbaum,
proposes an amendment numbered 1647.
Mr. HEFLIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 242, between lines 7 and 8 insert the following:
TITLE V--MISCELLANEOUS PROVISIONS
SEC. 501. PROTECTION AGAINST DISCRIMINATORY TREATMENT OF
APPLICATIONS FOR STUDENT LOANS.
Section 525 of title 11, United States Code, is amended by
adding at the end the following new subsection:
``(c)(1) A governmental unit that operates a student grant
or loan program and a person engaged in a business that
includes making of loans guaranteed or insured under a
student loan program may not deny a grant, loan, loan
guarantee, or loan insurance to a person that is or has been
a debtor under this title or a bankrupt or debtor under the
Bankruptcy Act, or another person with whom the debtor or
bankrupt has been associated, because the debtor or bankrupt
is or has been a debtor under this title or a bankrupt or
debtor under the Bankruptcy Act, has been insolvent before
the commencement of a case under this title or during the
pendency of the case but before the debtor is granted or
denied a discharge, or has not paid a debt that is
dischargeable in the case under this title or that was
discharged under the Bankruptcy Act.
``(2) In this section, `student loan program' means the
program operated under part B, D, or E of title IV of the
Higher Education Act of 1965 (20 U.S.C. 1070 et seq.) or a
similar program operated under State or local law.''
Mr. METZENBAUM. Mr. President, the Bankruptcy Code, section 525,
prohibits governmental units from discriminating against a person
because of a prior bankruptcy or discharge of a debt. Specifically, the
code provides that a governmental unit may not discriminate in cases of
a ``license, permit, charter, franchise, or other similar grant''
because of a prior bankruptcy. Some courts have construed this
provision very narrowly. For example, if a person has filed for
bankruptcy and later applies for a Government-sponsored student loan,
some courts have upheld the denial of the loan because the Bankruptcy
Code does not specifically mention student loans as a category in which
the Government may not discriminate. This interpretation seriously
undermines the fresh start that section 525 was meant to ensure. It
also may prevent a person from going back to school.
The Metzenbaum amendment would specifically list student grants and/
or loans as an area in which the Government may not discriminate. Under
current law, most student loans cannot be discharged in bankruptcy.
This amendment will not change that law.
Mr. HEFLIN. I urge adoption of the amendment.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1647) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1648
(Purpose: To amend the Bankruptcy code, 11 U.S.C. section 541(b)(4) to
exempt the debtor's estate in bankruptcy certain interests in the
production of liquid or gaseous hydrocarbons)
Mr. HEFLIN. Mr. President, I send an amendment to the desk by Senator
Simpson, for himself, Mr. Wallop, Mr. Brown, Mr. Breaux, Mrs.
Hutchison, and Mr. Johnston, and ask for its immediate consideration.
The PRESIDING OFFICER. Without objection, the pending amendment will
be set aside. The clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Simpson, for
himself, Mr. Wallop, Mr. Brown, Mr. Breaux, Mrs. Hutchison,
and Mr. Johnston proposes an amendment numbered 1648.
Mr. HEFLIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Amend 11 U.S.C. 541(b)(4) to read as follows:
(4) any interest of the debtor in liquid or gaseous
hydrocarbons to the extent
(A)(i) the debtor has transferred or has agreed to transfer
such interest pursuant to a farmout agreement or any written
agreement directly related to a farmout agreement; and
(ii) but for the operation of this paragraph, the estate
could include such interest only by virtue of section 365 or
544(a) of this title; or
(B) the debtor has transferred such interest pursuant to a
conveyance of a production payment or an oil and gas lease.
Paragraph (4) shall not be construed to exclude from the
estate any consideration the debtor retains, receives, or is
entitled to receive for transferring an interest in liquid or
gaseous hydrocarbons pursuant to a farmout agreement,
production payment, or oil and gas lease.
Amend 11 U.S.C. 101 by adding the following:
(42.A) ``production payment'' is not a gross royalty. A
production payment is a term overriding royalty which is an
interest in liquid or gaseous hydrocarbons in place or to be
produced from a property or properties, that entitles the
owner thereof to a share of production, or the value thereof,
for a term limited by time, quantity, or value realized, or
any formula based on one or more of such factors.
Mr. SIMPSON. Mr. President, this is an amendment to the Bankruptcy
Code which is similar to another amendment that I offered last year to
the energy bill and which was enacted into law during the 102d
Congress.
This amendment will exclude interests owned in oil and gas production
from bankruptcy proceedings. It is important to note, however, that the
interest in production that is excluded from bankruptcy is not owned by
the debtor. Any debtor-owned production is still available to the court
to satisfy claims of creditors. The interest being protected by my
amendment is referred to in the industry as a ``production payment''.
I would take just a moment to describe what a production payment is
and how it comes into existence, so my colleagues will understand how
necessary and fair this amendment is.
There are instances when owners of a right to drill for and to
produce oil or gas cannot afford to drill the well themselves. Drilling
an oil or gas well often costs millions of dollars. It is a high risk
venture, and there is no guarantee that production will be established
after undertaking that phenomenal expense.
Companies that purchase the product, of course, have an interest in
seeing oil and gas wells being drilled. The production is the ``life
blood'' of their business and they often are willing to share in the
expense of drilling in return for a share in production. When the
companies involved enter into an agreement to share in the risk of
exploration in the hope of obtaining a share in production, a contract
is signed where, in return for providing capital--money--for drilling a
well, the funds are repaid not in cash, but in the form of oil or gas
produced from the well. That share of production is a ``production
payment''. Simply stated, it is a payment of oil or gas in lieu of
cash.
The production payment extends for a limited term--and likely for a
term shorter than the life of production from the specific well. The
term of payment in production is a part of the contract the parties
enter into at the beginning of the venture.
In some cases, Mr. President, one of the parties subsequently must
declare bankruptcy. In these days of declining oil prices and increased
imports, that is becoming more of a concern. If the entity that drilled
the well and established production is later forced into bankruptcy,
the payments owed to the partner in the venture--the production
payments--could be taken over to satisfy the claims of other creditors.
Such a result would be grossly unfair. The owner of a production
payment is a blameless party in the bankruptcy. The production payment
owner shared in the risk of drilling the well and is entitled to have
that debt repaid. Therefore, my amendment would allow for this by
excluding these interests from bankruptcy proceedings.
Other creditors also stand to benefit from the passage of this
amendment. If production is maintained to satisfy the obligation due
the owner of the production payment, excess production will continue to
be sold as well. The proceeds from those sales will be available to
satisfy other creditors' claims. Even though the other creditors likely
had no part in drilling a particular well, there will be an additional
cash stream maintained into the debtor's estate to satisfy their
claims, too.
I have been working closely with my distinguished colleagues on the
Judiciary Committee, Senators Heflin and Grassley, on this amendment
since they first reintroduced their legislation in the 103d Congress.
Through their able assistance, we have refined and simplified this
amendment to accomplish its narrow purpose: to protect innocent non-
debtor owners of oil and gas production and to do so at no loss to
other creditors. We have accomplished that goal and I am most
appreciative of their hard work and that of their fine staff.
I would mention one modification that is particularly relevant.
Senator Grassley had suggested that without clarification, some would
believe that this exclusion of production payments, also known as an
``overriding royalty'', would cause some to believe all royalties are
being excluded. So we made that distinction in the definitional
section: A production payment is not a gross royalty. The term ``gross
royalty'' is not commonly used in the oil and gas industry, but is
rather a general term in property law. We made that change to be
absolutely clear that we are addressing a specific and unique class of
``royalties''.
Mr. President, I am informed that the managers of the legislation now
pending are prepared to accept this amendment and I would yield the
floor.
Mr. HEFLIN. I urge adoption of the amendment.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1648) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1649
(Purpose: To enable the Internal Revenue Service, during the pendency
of an automatic stay, to assess (but not seek to collect) a tax for
which there is no procedure for issuance of a notice of deficiency)
Mr. HEFLIN. Mr. President, I send an amendment to the desk by Senator
Metzenbaum dealing with tax assessments, and ask for its immediate
consideration.
The PRESIDING OFFICER. Without objection the previous amendments will
be set aside. The clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Metzenbaum,
proposes an amendment numbered 1649.
Mr. HEFLIN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 160, strike lines 1 through 6 and insert the
following:
``(9) under subsection (a), of--
``(A) an audit by a governmental unit to determine tax
liability;
``(B) the issuance to the debtor by a governmental unit of
a notice of tax deficiency;
``(C) a demand for tax returns; an assessment of an
uncontested or agreed upon tax liability; or
``(D) the making of an assessment for any tax issuance of a
notice and demand for payment of such an assessment (but any
tax lien that would otherwise attach to property of the
estate by reason of such an assessment shall not take effect
until the property is no longer property of the estate).''.
Mr. METZENBAUM. Mr. President, in current S. 540, there is a
provision--tax administration, section 115, tax assessment--that would
allow the assessment of uncontested or agreed upon prepetition tax
liabilities. While of some assistance to the Internal Revenue Service,
the provision does not cover taxes that may not require a return or
those that do not involve the deficiency procedures of the Internal
Revenue Code such as excise taxes and employment taxes. The amendment
proposed would extend the ability of the Service to make assessments
with regard to all taxes that it administers.
Under the proposal, the Service would still be prohibited from taking
steps to collect the tax. It would simply be allowed to make an
assessment and send the first bill notifying the taxpayers of the
liability.
In addition, the restrictions on assessment contained in the Internal
Revenue Code will continue in full force and effect. The proposal would
not allow the Service to assess a deficiency in income taxes while the
stay is in effect until either the automatic stay is lifted, the
Bankruptcy Court determines the liability, or the Bankruptcy Court
allows the Tax Court to continue the proceeding. The proposal is
consistent with a recommendation made by the General Accounting Office.
(See GGD 83-47, June 20, 1983.)
Because there has been concern expressed that somehow the Service
might get an advantage because of its lien under Internal Revenue Code
if it is allowed to assess during bankruptcy, the provision provides
that any lien arising by operation of the Internal Revenue Code does
not take effect until after property is no longer part of the
bankruptcy estate. This is consistent with the Internal Revenue
Service's position that it seeks no advantage over other creditors by
being allowed to assess taxes during the pendency of a bankruptcy.
Mr. HEFLIN. I urge adoption of the amendment.
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1649) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1650
(Purpose: To provide that consumer rent-to-own contracts shall be
treated as secured purchase contracts)
Mr. HEFLIN. Mr. President, I send to the desk an amendment on behalf
of Senator Metzenbaum dealing with the consumer rent-to-own contracts
as being treated as secured purchase contracts.
The PRESIDING OFFICER. Without objection, the pending amendments will
be set aside. The clerk will report.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Metzenbaum,
proposes an amendment numbered 1650.
The amendment is as follows:
On page 235 between lines 13 and 14 insert the following:
SEC. 311. RENT-TO-OWN CONTRACTS.
(a) Definition.--Section 101 of title 11, United States
Code, is amended by inserting in their proper alphabetical
positions the following new definitions:
```consumer good' means an item of personal property (not
including a motor vehicle) acquired by an individual
primarily for a personal, family, or household purpose.''.
```rent-to-own contract' means an agreement, in the form of
a terminable lease or bailment of a consumer good, between a
person regularly engaged in the business of making consumer
goods available to individuals and an individual, under
which--
``(A) the lessee or bailee--
``(i) has the right of possession and use of the consumer
good; and
``(ii) has the option to renew the agreement periodically
by making payments specified in the agreement; and
``(B) the lessor or bailor agrees, orally or in writing, to
transfer ownership of the consumer good to the lessee or
bailee upon the fulfillment of all obligations of the lessee
or bailee for the transfer under the agreement.''.
(b) Treatment of Rent-To-Own Contracts as Secured Purchase
Contracts.--
(1) Chapter 7.--Subchapter II of chapter 7 of title 11,
United States Code, is amended by adding at the end the
following new section:
``Sec. 729. Rent-to-own contracts
``In a proceeding under this chapter in which the debtor is
in possession of a consumer good under a rent-to-own
contract, the debtor and the lessor or bailor shall be
accorded the same rights and obligations with respect to the
consumer good, respectively, as they would be accorded if the
rent-to-own contract had been a purchase contract.''.
(2) Chapter 13.--Subchapter I of chapter 13 of title 11,
United States Code, is amended by adding at the end the
following new section:
``Sec. 1308. Rent-to-own contracts
``In a proceeding under this chapter in which the debtor is
in possession of a consumer good under a rent-to-own
contract, the debtor and the lessor or bailor shall be
accorded the same rights and obligations with respect to the
consumer good, respectively, as they would be accorded if the
rent-to-own contract had been a purchase contract.''.
(c) Technical Amendments.--
(1) Chapter 7.--The chapter analysis for chapter 7 of title
11, United States Code, is amended by inserting after the
item for section 728 the following new item:
``729. Rent-To-Own Contracts.''.
(2) Chapter 13.--The chapter analysis for chapter 13 of
title 11, United States Code, is amended by inserting after
the item for section 1307 the following new item:
``1308. Rent-To-Own Contracts.''.
Mr. METZENBAUM. Mr. President, this amendment resolves the debate
over how rent-to-own contracts should be treated in bankruptcy cases.
Rent-to-own agreements are consumer transactions in which consumers
agree to make weekly payments for appliances or furniture with the
promise of owning them after a period of time. The rent-to-own
companies attempt to avoid credit sales and usury laws by writing the
agreements as leases, terminable by the consumer at any time. Typically
the consumers pay many times the true value of the property under these
agreements, amounts which the Pennsylvania attorney general has found
to be the equivalent of 100-200 percent in interest.
Consumers have argued that these agreements should be treated as
credit sales in bankruptcy and many courts have agreed that this is
correct. If the transaction is treated as a sale for purposes of
bankruptcy, the consumer is treated like any other purchaser of goods
on credit, and may keep possession of the goods by paying to the
creditor the lesser of the balance of the contract or the property's
current value, the same amount the creditor would realize if the goods
were repossessed. In a chapter 7 case, this payment is normally in a
lump sum. In a chapter 13 case it is made under the chapter 13 plan,
with interest--at a fair rate--added.
However, other courts have ruled that to keep their appliances,
consumers must pay the entire remaining balance of the rent-to-own
contract, which is usually many times what the property is worth, and a
burden that makes it more difficult for the debtor to pay basic living
expenses and pay other creditors.
A clear treatment of these transactions in the bankruptcy code would
promote uniformity and end litigation on these issues. It would also
serve the goals of consumer protection by limiting the effects of these
unfair and overreaching contracts.
This amendment would clarify the law in a way that treats debtors
with rent-to-own contracts in the same way the bankruptcy code treats
those with installment sale contracts. It preserves for the rent-to-own
dealer the right to receive either a return of the property in question
or its fair market value and at the same time ensures that the debtor
gets the fresh start bankruptcy is intended to provide.
Mr. GRASSLEY. Mr. President, even though we are going to move forward
with this amendment, I want to make the point that I believe that this
amendment is not the right amendment. I am opposed to it at this point.
I am going to take the amendment now in the interest of moving this
bill forward. I will work with Senator Metzenbaum on this issue, but I
reserve my right to oppose this amendment in conference.
I also note that the Banking Committee will hold hearings on the
rent-to-own subject next month which may lead to a more acceptable
resolution of this issue.
Mr. HEFLIN. I send to the desk at this time a statement on behalf of
Senator Metzenbaum and ask that it appear in the Record as if read in
full.
The PRESIDING OFFICER. Without objection.
Mr. HEFLIN. Mr. President, I have some reservation on this rent-to-
own matter, too. We will work in conference to try to improve this with
the House relative to this matter.
I urge the adoption of the amendment.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1650) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1651
(Purpose: To amend section 522(f) of title 11, United States Code, to
clarify the method of determining whether a lien is impaired)
Mr. HEFLIN. Mr. President, I send to the desk an amendment on behalf
of Senator Metzenbaum dealing with lein avoidance, which we have
considered and several changes have been made pertaining to it. But I
think it is now agreeable to the Senators who are interested in it.
The PRESIDING OFFICER. Without objection, the pending amendments will
be set aside, and the clerk will report this amendment.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Metzenbaum,
proposes an amendment numbered 1651.
The amendment is as follows:
On page 213, between lines 5 and 6 insert the following:
SEC. 303. IMPAIRMENT OF EXEMPTIONS.
(a) In General.--Section 522(f) of title 11, United States
Code, is amended--
(1) by inserting ``(1)'' before ``Notwithstanding'';
(2) by redesignating paragraph (1) as subparagraph (A);
(3) by redesignating (2) as subparagraph (B) and
subparagraphs (A), (B), and (C) of that paragraph as clauses
(i), (ii), and (iii); and
(4) by adding at the end the following new paragraph:
``(2)(A) For the purposes of this subsection, a lien shall
be considered to impair an exemption to the extent that the
sum of--
``(i) the lien;
``(ii) all other liens on the property that are equal or
greater in seniority to the lien; and
``(iii) the amount of the exemption that the debtor could
claim if there were no liens on the property,
exceeds the value that the debtor's interest in the property
would have in the absence of any liens.
``(B) In the case of a property subject to more than 1
lien, a lien that has been avoided shall not be considered in
making the calculation under subparagraph (A) with respect to
other liens.''.
(b) Rule of Construction; Application of Amendment.--
Section 522(f)(2) of title 11, United States Code, as added
by subsection (a)--
(1) shall not be construed to apply with respect to a
judgment arising out of a mortgage foreclosure; and
(2) shall not apply with respect to a nonpossessory,
nonpurchase-money security interest given before the date of
enactment of this Act (including a security interest with
respect to which the value of the collateral increases after
a case under that title is commenced).
On page 215, strike lines 14 through 16 and insert the
following:
(c) Protection of Liens.--Section 522(f) of title 11,
United States Code, as amended by section 303, is amended by
amending paragraph (1)(A) to read as follows:
``(A) a judicial lien (other than a judicial lien
On page 216, line 1, strike ``(A)'' and insert ``(i)''.
On page 216, line 3, strike ``(B)'' and insert ``(ii)''.
Mr. HEFLIN. Mr. President, I urge the adoption of the amendment.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1651) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1652
(Purpose: To add provisions to combat bankruptcy fraud)
Mr. HEFLIN. Mr. President, I send to the desk an amendment on behalf
of Senator Metzenbaum dealing with fraud in bankruptcy proceedings and
to add provisions to combat bankruptcy fraud.
The PRESIDING OFFICER. Without objection, the pending amendments will
be set aside, and the clerk will report this amendment.
The legislative clerk read as follows:
The Senator from Alabama [Mr. Heflin], for Mr. Metzenbaum,
proposes an amendment numbered 1652.
The amendment is as follows:
On page 242, between lines 7 and 8 insert the following:
TITLE V--BANKRUPTCY FRAUD
SEC. 5146. BANKRUPTCY FRAUD.
(a) In General.--
(1) Offenses.--Chapter 9 of title 18, United States Code,
is amended--
(A) by amending sections 152, 153, and 154 to read as
follows:
``Sec. 152. Concealment of assets; false oaths and claims;
bribery
``A person who--
``(1) knowingly and fraudulently conceals from a custodian,
trustee, marshal, or other officer of the court charged with
the control or custody of property, or, in connection with a
case under title 11, from creditors or the United States
Trustee, any property belonging to the estate of a debtor;
``(2) knowingly and fraudulently makes a false oath or
account in or in relation to any case under title 11;
``(3) knowingly and fraudulently makes a false declaration,
certificate, verification, or statement under penalty of
perjury as permitted under section 1746 of title 28, in or in
relation to any case under title 11;
``(4) knowingly and fraudulently presents any false claim
for proof against the estate of a debtor, or uses any such
claim in any case under title 11, in a personal capacity or
as or through an agent, proxy, or attorney;
``(5) knowingly and fraudulently receives any material
amount of property from a debtor after the filing of a case
under title 11, with intent to defeat the provisions of title
11;
``(6) knowingly and fraudulently gives, offers, receives,
or attempts to obtain any money or property, remuneration,
compensation, reward, advantage, or promise thereof for
acting or forbearing to act in any case under title 11;
``(7) in a personal capacity or as an agent or officer of
any person or corporation, in contemplation of a case under
title 11 by or against the person or any other person or
corporation, or with intent to defeat the provisions of title
11, knowingly and fraudulently transfers or conceals any of
his property or the property of such other person or
corporation;
``(8) after the filing of a case under title 11 or in
contemplation thereof, knowingly and fraudulently conceals,
destroys, mutilates, falsifies, or makes a false entry in any
recorded information (including books, documents, records,
and papers) relating to the property or financial affairs of
a debtor; or
``(9) after the filing of a case under title 11, knowingly
and fraudulently withholds from a custodian, trustee,
marshal, or other officer of the court or a United States
Trustee entitled to its possession, any recorded information
(including books, documents, records, and papers) relating to
the property or financial affairs of a debtor,
shall be fined not more than $5,000, imprisoned not more than
5 years, or both.
``Sec. 153. Embezzlement against estate
``(a) Offense.--A person described in subsection (b) who
knowingly and fraudulently appropriates to the person's own
use, embezzles, spends, or transfers any property or secretes
or destroys any document belonging to the estate of a debtor
shall be fined not more than $5,000, imprisoned not more than
5 years, or both.
``(b) Person to Whom Section Applies.--A person described
in this subsection is one who has access to property or
documents belonging to an estate by virtue of the person's
participation in the administration of the estate as a
trustee, custodian, marshal, attorney, or other officer of
the court or as an agent, employee, or other person engaged
by such an officer to perform a service with respect to the
estate.
``Sec. 154. Adverse interest and conduct of officers
``A person who, being a custodian, trustee, marshal, or
other officer of the court--
``(1) knowingly purchases, directly or indirectly, any
property of the estate of which the person is such an officer
in a case under title 11;
``(2) knowingly refuses to permit a reasonable opportunity
for the inspection by parties in interest of the documents
and accounts relating to the affairs of estates in the
person's charge by parties when directed by the court to do
so; or
``(3) knowingly refuses to permit a reasonable opportunity
for the inspection by the United States Trustee of the
documents and accounts relating to the affairs of an estate
in the person's charge,
shall be fined not more than $5000 and shall forfeit the
person's office, which shall thereupon become vacant.''; and
(B) by adding at the end the following new sections:
``Sec. 156. Knowing disregard of bankruptcy law or rule
``(a) Definitions.--In this section--
```bankruptcy petition preparer' means a person, other than
the debtor's attorney or an employee of such an attorney, who
prepares for compensation a document for filing.
```document for filing' means a petition or any other
document prepared for filing by a debtor in a United States
bankruptcy court or a United States district court in
connection with a case under this title.
``(b) Offense.--If a bankruptcy case or related proceeding
is dismissed because of a knowing attempt by a bankruptcy
petition preparer in any manner to disregard the requirements
of title 11, United States Code, or the Bankruptcy Rules, the
bankruptcy petition preparer shall be fined under this title,
imprisoned not more than 1 year, or both.
``Sec. 157. Bankruptcy fraud
``(a) Offense.--A person who, having devised or intending
to devise a scheme or artifice to defraud, or for obtaining
money or property by means of a false or fraudulent pretense,
representation, or promise, for the purpose of executing or
concealing such a scheme or artifice or attempting to do so--
``(1) files a petition under title 11;
``(2) files a document in a proceeding under title 11; or
``(3) makes a false or fraudulent representation, claim, or
promise concerning or in relation to a proceeding under title
11, at any time before or after the filing of the petition,
or in relation to a proceeding falsely asserted to be pending
under that title,
shall be fined under this title, imprisoned not more than 5
years, or both.
``(b) Requirement of Intent.--
``(1) In general.--The degree of intent required to be
shown in the case of an offense described in subsection (a)
is that which is generally required to be shown in cases of
fraud.
``(2) Violation not established.--A violation of subsection
(a) is not established if the defendant committed the act
that is alleged to constitute fraud for a lawful purpose.
``(3) Violation established.--A violation of subsection (a)
may be established if the defendant committed the act that is
alleged to constitute fraud with a purpose of--
``(A) preventing the proper application of title 11 in a
particular case; or
``(B) using a proceeding under title 11 in a manner that,
while on its face may appear to be legitimate, is in fact
part of a scheme to defraud.''.
(2) Technical amendments.--The chapter analysis for chapter
9 of title 18, United States Code, is amended--
(A) by amending the item relating to section 153 to read as
follows:
``Sec. 153. Embezzlement against estate.'';
and
(B) by adding at the end the following new item:
``Sec. 156. Knowing disregard of bankruptcy law or rule.
``Sec. 157. Bankruptcy fraud.''.
(b) RICO.--Section 1961(1)(D) of title 18, United States
Code, is amended by inserting ``(except a case under section
157 of that title)'' after ``title 11''.
Mr. GRASSLEY. Mr. President, this amendment is also in the crime
bill. I just want to point that out to Members of the body. This will
be passing the Senate twice in a recent period of time.
Mr. HEFLIN. Mr. President, I urge the adoption of the amendment.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment.
The amendment (No. 1652) was agreed to.
Mr. HEFLIN. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Amendment No. 1653
(Purpose: To provide that the amendment made by section 205 will not
apply to an unexpired lease of real property in a shopping center)
Mr. HATCH. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. Without objection, the pending amendments will
be set aside, and the clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Utah [Mr. Hatch] proposes an amendment
numbered 1653.
Mr. HATCH. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 197, line 22, strike ``The'' and insert ``(1)
Except as provided in paragraph (2), the''
On page 198, between lines 3 and 4, insert the following:
``(2) This subsection does not apply to an executory
contract that is related to, or to an unexpired lease of real
property in, a shopping center.''.
Mr. HATCH. Mr. President, I understand my colleagues will accept this
amendment. I want to thank them for accepting this technical amendment,
and I also appreciate Senator Kohl's efforts to work this out. So as
far as I know, it will be accepted.
Mr. HEFLIN. Mr. President, this is the amendment dealing with
shopping centers. I do not think there was ever any disagreement on
this. I think this is one everybody agrees with.
The PRESIDING OFFICER. If there is no further debate, the question is
on the amendment of the Senator from Utah.
The amendment (No. 1653) was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. GRASSLEY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 1654
(Purpose: To strike the provision relating to payment of insurance
benefits to retired employees)
Mr. HATCH. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. Without objection, the pending amendments will
be set aside, and the clerk will report this amendment.
The legislative clerk read as follows:
The Senator from Utah [Mr. Hatch] proposes an amendment
numbered 1654.
Mr. HATCH. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 211, strike lines 1 through 12.
Mr. HATCH. Mr. President, I understand the managers have agreed to
accept my amendment to strike section 220. I really wish to extend my
thanks to the managers, Senator Heflin and Senator Grassley, for their
cooperation and assistance.
I would also like to thank Senator Metzenbaum for his efforts and
cooperation to resolve this matter, because I believe that this
amendment--the motion to strike--is in the best interest of retirees
and employees.
I also would like to thank Senator Helms for his assistance and also,
in particular, I would like to take just a second and thank the
distinguished Senator from Alabama [Mr. Heflin], and the distinguished
Senator from Iowa [Mr. Grassley], for the marvelous way in which they
have handled this bill from beginning to end. They have done a
tremendous job in committee and on the floor. I have tremendous respect
for both of them. So I just want them both to know that.
This whole S. 540, the bankruptcy bill, is long overdue and these two
Senators have really worked hard to do it.
Having thanked all of those people, I urge the adoption of the
amendment.
Mr. METZENBAUM addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. METZENBAUM. Mr. President, I rise not in opposition to the
amendment of the Senator from Utah, but rather to address myself to
this particular subject and the conduct of some lobbyists who have been
working the halls of the Senate.
It has nothing at all to do with my colleague from Utah. It does have
to do with the Bankers Association.
This is an amendment that has to do with the question of whether or
not retirees will be protected when a company is in bankruptcy and when
a bank is making a loan to that particular company that is in
bankruptcy. It is a subject that has been one of some travail, some
concern. And this Senator, in cooperation with the Senator from South
Carolina [Mr. Thurmond], some years ago was able to protect the
interests of the retirees in connection with the LTV Steel Co.
This amendment does not have to do with any particular company. It
has to do with the general subject of whether or not retirees are going
to be given consideration and how much consideration, as far as their
health benefits are concerned, when a company is in bankruptcy.
There have been questions about the language that is in the law at
the moment. The Senator from Ohio had an amendment that he thought
clarified the matter. Yesterday we learned--I guess we actually learned
prior to that--that the Bankers Association was not in agreement with
the language of the Senator from Ohio. And so my staff entered into
considerable negotiations with the Bankers Association.
After they had been handling those negotiations for some time, I came
out into the hallway near the Senate and said, ``Well, what is it that
you want?'' The woman spokesperson--I gather she is a lawyer--for the
Bankers Association said they wanted certain language in it. I found
some difficulty with that. My staff had great reservations about it,
but in an effort to get the matter resolved, I said, ``All right, let's
go with it.''
The lady then came back with some additional language and said,
``Well, we also would like this language in.'' I looked at it, and I
had some difficulty with it, and a representative of the White House
was present, and she suggested we pick up some language from I think it
is section 1114, if I remember correctly, of the Code and use that
specific language and it be included in the amendment. I said fine. The
lady representing the Bankers Association said fine.
There was then considerable additional discussion, and finally, they
got what they wanted. I wanted to move the matter forward. I did not
want to hold up the bankruptcy bill. Both the manager of the bill and
the comanager of the bill have been extremely cooperative and I said,
``All right let's go with it.''
I am frank to say to my colleagues in the Senate that my own staff
was not happy with my agreeing to take that amendment. As a matter of
fact, my staff felt very strongly about the subject. I had to just go
ahead and say we are going to go ahead anyhow, and I actually had to
apologize because I was so curt with her.
So I had made a statement. My staff was not happy. But I said, ``I
made a deal; let's go.''
The next thing I knew, I went out there, and I said, ``Where is the
amendment?'' They said, ``It is being typed in the Vice President's
office.'' I said, ``Fine. As soon as you have it, let me know.''
Several minutes later, they came back to me and said that their
lawyers in New York, with whom they had already been in contact,
talking back and forth, because a representative of the bankers had a
telephone with her, a hand-held telephone, the Bankers Association
lawyers have changed their minds; they now want to change it.
Now, I have to say, I have been here 18 years, more than 18 years. I
have negotiated with all sorts of groups. I have disagreed with some
and agreed with others. But I have never seen conduct of any lobbying
group as reprehensible as that of the Bankers Association yesterday.
You make a deal. You live by your deal. Your word is good. You do not
change your word. And to me, the last people in this country who ought
to be changing their word are those who are in the banking business.
They had agreed to it. Then they went back. No, they had to fine tune
it. They had to change some language in it.
I have agreed now to take the amendment, the whole matter, out of
this bankruptcy bill and let the law stand as it is. But I say publicly
that I condemn the conduct of the American Bankers Association in their
dealing with Members of the Senate. If they cannot keep their word,
they should not be traveling the Halls of this body; they should not be
representing their group. This is an organization that owes it to the
American people to have a sense of integrity. It is the last
association that ought to have a lack of integrity.
Having said that, Mr. President, I have no objection to the amendment
of the Senator from Utah. And I wish to make it very clear my language
is in no way any reflection upon the Senator from Utah. He was not a
party to the negotiations.
Mr. HATCH. Mr. President, I thank my dear friend and colleague from
Ohio. I am very happy to get this amendment done, because I think it is
in the best interests of everybody.
My dealing with the bankers has been totally favorable. I could find
nothing but praise on my part for their activities and efforts, without
which we probably would not have arrived at this conclusion, which I
think is a very good one.
So I urge adoption of the amendment at this time.
Mr. HELMS. Mr. President, those familiar with the details of this
legislation are aware that section 220 of the bill requires a
corporation reorganizing under chapter 11 first to fund retiree health
and insurance benefits. If this section should become law--and I cannot
believe it will--it would eliminate jobs, discourage viable companies
from reorganizing, harm lending institutions, and hurt retirees--the
very group it purports to assist.
That is why, Mr. President, I filed amendment number 1581 to strike
completely this section. Senators can find this amendment in the
Congressional Record of March 24 on page S 3777. The able Senator from
Utah [Mr. Hatch] and the Senator from Ohio [Mr. Metzenbaum] have agreed
that section 220 of the bill be removed, and I appreciate that.
Mr. President, I was first made aware of the onerous impact of this
section by John Medlin, Jr., chairman of the board of Wachovia Bank in
Winston-Salem, NC. In addition to being a leader of our Nation's
banking industry, John Medlin has demonstrated a prescient
understanding of how our economy works--and of the impact the Federal
Government has on the economy.
John detailed his concerns about section 220 in his letter of March 8
to me, and I ask unanimous consent that the text of Mr. Medlin's
letter--as well as the text of a letter from John McLaughlin of United
Carolina Bank--be printed in the Record, and I extend my appreciation
to Senator Hatch for his fine work.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
Wachovia,
Winston-Salem, NC, March 8, 1994.
Re S. 540--The Bankruptcy Amendments Act of 1993.
Hon. Jesse R. Helms,
U.S. Senate,
Washington, DC.
Dear Jesse: Wachovia Corporation and its member banks join
with those who strongly oppose Section 220 of S. 540, the
Bankruptcy Amendments Act of 1993. This bill was reported
from the Senate Judiciary Committee on September 15, 1993 and
is expected to be taken up by the full Senate prior to the
Easter recess. S. 540 contains many salutary provisions which
would effect important and necessary reforms in the
Bankruptcy Code.
However, Section 220, requiring first use of any cash on
hand to fund retiree health and insurance benefits, would
have a severely detrimental impact on companies with
substantial retiree benefit obligations and their employees.
This section and the controversy it created was one of the
primary reasons for the failure of this reform legislation
last year.
Due to the extreme negative effect which Section 220 would
have upon jobs and the economy, we strongly urge your support
to strike or modify this provision of S. 540 when it is
considered by the full Senate. It is my understanding that
Senator Hatch may introduce an amendment to either strike
this provision or substantively amend it.
Although Section 220 is aimed at companies in Chapter 11
bankruptcy proceedings (and would have tremendous negative
effect on their ability to reorganize), it would also
substantially raise financing costs for companies with large
retiree benefit obligations that have never contemplated or
elected Chapter 11 protection. It will also have a
deleterious effect upon the credit quality of those
companies. Private credit will become less available and more
expensive due to the increased risk to lenders of their
collateral being used to finance retiree benefits rather than
company operations. Capital market financing will also become
more difficult, as bond rating agencies can be expected to
downgrade a company's commercial paper as they take into
account the ``leapfrogging'' of retiree over bondholders'
claims that would be effected by Section 220.
The employees of companies with substantial retiree
obligations could also be negatively affected. Experience has
shown that added burdens on retiree health benefits, such as
the accounting changes of FASB 106, have had the unintended
consequence of companies cutting back or eliminating these
benefits. Thus, if Section 220 were enacted, additional
cutbacks in retiree benefits could result.
For companies seeking to reorganize under Chapter 11, the
damaging consequences of the changes made by Section 220
result from the creation of an unworkable rule that would
modify the working of existing Section 1114 of the Bankruptcy
Code, which sets forth standards and procedures for the
modification of retiree health and insurance benefits in
Chapter 11 cases. In many Chapter 11 situations, the debtor
company lacks sufficient assets to make required plan
payments during reorganization and must postpone such
contributions until confirmation of a plan of reorganization.
Under current Section 1114, any payments required to be made
during the pendency of the case are awarded administrative
expense status, the highest payment priority in the
Bankruptcy Code. A company is prohibited from emerging from
Chapter 11 without complying with its retiree obligations, or
modifying them in accordance with the Section 1114
procedures. Thus, the existing Section 1114 protects retiree
benefit rights while maintaining necessary flexibility and
encouraging labor-management negotiations.
In contrast, Section 220 of S. 540 would create an
inflexible and unworkable rule under which a company entering
Chapter 11 would be required to make first use of any cash on
hand, including cash collateral pledged as security to
lenders, as well as any new credit, to fund retiree health
and insurance benefits. This inflexible mandate will force
troubled companies in reorganization to divert substantial
funds needed for current obligations, including the payment
of wages and benefits of current employees, as well as for
critically needed supplies, to the payment of insurance
benefits to former employees. While creditors are willing to
release cash collateral or provide new credit for activities
which increase the value and enhance the survival of a
company in Chapter 11, they will undoubtedly be unwilling to
extend post-petition financing to fund expenses such as
retiree health benefits because such expenses do not create
new collateral for the lenders or capital for the borrower.
Consequently, if a company cannot obtain adequate post-
bankruptcy financing to fund Chapter 11 reorganization, the
reorganization attempt will quickly collapse and it will be
forced to liquidate under Chapter 7 of the Bankruptcy Code.
This will harm the nation's economy and permanently eliminate
thousands of jobs, and destroy any additional funding for
retiree health benefits.
In addition to the damaging effect this provision will have
on the ability to reorganize, it also results in an
unconstitutional taking of property. Section 220 conflicts
with the Bankruptcy Code requirement that a court order
releasing cash collateral over lenders' objections must
provide those lenders with ``adequate protection'' of their
interest in this property; this Bankruptcy Code requirement
is based upon the Constitutional prohibition against takings
without compensation. Section 220 destroys the balance
between the ability of the debtor to use assets to reorganize
and the requirement that a creditor's rights in its
collateral be adequately protected.
Section 220 would also increase delay and legal expenses in
Chapter 11 cases, and increase the likelihood that unsecured
creditors would file motions for involuntary conversion of
the case to Chapter 7 liquidation.
While some minor modifications of the protections reflected
in current Section 1114 of the Bankruptcy Code may be
advisable to reflect experience in administering that
provision, Section 220 of S. 540 goes far beyond procedural
revision by putting in place substantive imbalances
detrimental to the interests of all parties in bankruptcy.
Ironically, retirees would suffer under this provision, as
emergency court orders terminating retiree benefits to ensure
a company's survival in Chapter 11 would become more likely--
or, in the alternative, more companies would liquidate,
leaving their retirees with no benefits.
Jesse, governmental agencies and Congress continue to spew
forth regulations and legislation which strangle private
enterprise. I respectfully urge you to oppose Section 220 of
Senate Bill 540.
My deep respect and gratitude remain with you for the
excellent work you perform in the Senate.
With highest personal regards, I am
Sincerely,
John G. Medlin, Jr.
____
United Carolina Bank,
April 19, 1994.
Hon. Jesse Helms,
U.S. Senate,
Washington, DC.
Dear Senator Helms: My associates and I wish to express our
support for your and Senator Faircloth's efforts to eliminate
Section 220 from S. 540, the bankruptcy reform bill.
It is easy to see the intended benefits proposed in Section
220 and to identify with those desired ends, but the actual
results will accomplish the opposite and are already better
addressed in Section 1114 of the Bankruptcy Code.
The real impact of Section 220 will make Chapter 11
reoganization unavailable in many cases. No lender is going
to be enthused about advancing money that is not going to be
used to run the company until the company is out of the
danger of being forced into Chapter 7 liquidation. If the
company can be brought back to health, everybody benefits,
including current retirees, and there is future income
available to fund future retiree health benefits instead of a
loss of jobs.
The second major impact would be on companies with
substantial unfunded retiree benefits that are not yet in,
nor necessarily going into Chapter 11. They will become much
more restricted in their ability to obtain credit and stay in
business. If Section 220 is enacted, creditors would be
reluctant to lend to companies with high retiree health
benefit obligations, for fear that Chapter 11 would be
unavailable to them if they get in trouble. This will result
in higher borrowing costs and less credit available for such
companies.
We all want retiree health benefits to be protected, but we
believe the current procedural protections already contained
in the Bankruptcy Code provide for them while the proposed
Section 220 would reduce the chances for the recovery of
ailing employer companies.
Sincerely yours,
John F. McLaughlin,
Senior Vice President.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment of the Senator from Utah.
So the amendment (No. 1654) was agreed to.
Mr. HATCH. Mr. President, I move to reconsider the vote.
Mr. METZENBAUM. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HATCH. I thank the Chair. I thank my colleagues.
Mrs. HUTCHISON addressed the Chair.
The PRESIDING OFFICER. The Senator from Texas.
Mrs. HUTCHISON. Mr. President, what is the pending business?
The PRESIDING OFFICER. The pending business is amendment No. 1640, by
Senator Dole and others.
Mrs. HUTCHISON. I thank the Chair.
Mr. President, I rise to support the Dole amendment. It has become
clear to people in the United States and around the world that the U.N.
policies with regard to Bosnia and Herzegovina are not comprehensible;
they are not coherent. In fact, Mr. President, the problem is there is
no policy.
Once again, those whom we hope will abide by international norms have
demonstrated with impunity that their lust for blood will not be
satiated until they have laid waste to Bosnia.
The lessons of Munich have been clear ever since Neville Chamberlain
handed over to Hitler all of his demands. Now we stand idly while Serb
forces slaughter innocent men and women. While it is not in our
interest to deploy United States forces into Bosnia, it is most
certainly in our interest to allow those who would fight for their
lives to do so.
If Lafayette had been sent to our shores with only humanitarian aid
during the American Revolution, we would still be a crown colony today.
I am not advocating sending United States ground troops to Bosnia. In
fact, I do not think, although we have an interest in Bosnia as a
country, sending our troops in under any circumstances is correct. But
I am most certainly advocating giving the people who have the will to
fight the ability to do so.
The fledgling United States was given that opportunity in our
struggle for freedom. It is only just that we give the opportunity to
those who only wish to fight for their lives. We have a moral
responsibility to support those who would do for themselves what the
West collectively cannot do, will not do, and should not do.
It is fitting that this amendment would be offered to the bankruptcy
bill because bankrupt is a fitting description of our policy toward
Bosnia.
We must act now, Mr. President, to allow the Bosnian people to defend
themselves, and I hope this body will speak clearly and firmly and
swiftly that that should at least be the United States policy and we
should press it forward.
Mr. President, I thank the Chair. I yield the floor.
The PRESIDING OFFICER. Who seeks recognition?
Mrs. HUTCHISON. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The absence of a quorum has been suggested.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. METZENBAUM. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Ohio is recognized.
Mr. METZENBAUM. Mr. President, I rise to speak about a lady who has
been extremely helpful to me on this bill, as well as a great deal of
other legislation. She is about to leave my staff and go over to Fannie
Mae.
Pam Banks has done yeoman's work in connection with this bankruptcy
bill. I think the managers of this bill have been good enough to accept
8, 9 or 10 of my amendments. She has been involved in all of the
negotiations. She has worked many additional hours, over and beyond the
normal time that all of us work in the Senate.
She has been dedicated to the concerns of the bankrupt, the concerns
of the would-be bankrupt, and she has been one of the finest
legislative aides that any Member of the Senate could possibly have. I
say this evening this may be one of the last bills she will be working
on, but no Senator could have had a better aide, supporter and helper
in connection with the legislative process than the kind of assistance
that I have received over the years from Pam Banks. I am sorry to see
her leave, but I congratulate her new employer. She gives more than a
full day's work for a full day's pay.
I would hope that every Member of the Senate would have staff
assistants as able, as conscientious, and as concerned as Pam Banks has
been. I thank her for her many years of service.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Robb). The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I ask unanimous consent to add as
cosponsors of S. 540 Senator Hatch and Senator Cochran.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. PRESSLER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PRESSLER. Mr. President, I believe very strongly that we should
avoid the loss of American life in the former Yugoslavia. I believe
very strongly that Europe should take the lead in any actions taken in
the former Yugoslavia. For too long the American taxpayer has been
burdened with the United States always taking the lead. This is a
European problem. We should help out and be supportive. But there has
been an attitude developed by some that the United States is
responsible for sending troops to resolve any matter. Whether it is
leading the bombing in Bosnia or feeding the hungry in Somalia.
I support the concept of lifting the arms embargo unilaterally, if
necessary, but I am also pleased that this resolution contains a
provision that there shall be no use of U.S. troops.
I have pointed out before, on this floor, the need for reform in the
way the U.N. military command does things. The U.S. taxpayer pays for
about 31.7 percent of the cost of U.N. peacekeeping operations. I think
this is very unfortunate. In 1947, there was a 25 percent cap placed on
the U.S. assessed contribution.
I introduced legislation during the State Department Authorization
that passed and was adopted by the House-Senate conference. My
amendment would withhold a portion of U.S. assessed contributions to
the United Nations unless an inspector general is established by the
United Nations. The United Nations requires a real inspector general,
because there has been so much corruption and waste. But there is also
a need for great reform in the way U.N. peacekeeping operations and
their command and control are run.
We are told, for example, that many countries have troops in Bosnia
and the United States should have more, but some of the countries
participating in the Bosnian operation are making a profit on their
troops, that is the untold story. Many of these countries pay their
soldiers $50 a month, which they continue to pay them when they are
serving in a U.N. peacekeeping operation. The government of that
country is subsequently reimbursed close to $1,000 per troop per month.
So it is not necessarily out of nobility that some countries
participate in U.N. peacekeeping operations, nor is it out of a sense
of duty. In addition to monetary compensation, these countries are
getting valuable training for their troops wherever they serve. I find
it disturbing that some governments are actually making a profit on the
troops they send to Yugoslavia and other U.N. peacekeeping operations.
So, Mr. President, it is my strongest position that we should pass
this resolution, but I am more comfortable knowing that no United
States troops will be committed in Bosnia. We should not shed a single
drop of American blood in this conflict. We should ask our Europeans
allies to take the lead. If they wish to, we will be supportive.
How long will American taxpayers continue to pay for peacekeeping
costs at the high rate of over 31 percent while other countries pay
little or nothing? Indeed, as I have noted, many countries profit from
their participation in peacekeeping operations.
Let us get the facts straight. Let us remember that our taxpayers are
asking how long they will continue to finance the United Nations Let us
make a rule that not a single drop of American blood should be shed in
this conflict. Those should be the ground rules by which President
Clinton and this body proceed. I hear from my constituents and from
Americans all over this great country that they do not want the United
States to commit ground troops. They do not want us to lead the
bombing. They do not want us to become enmeshed in a dispute that has
been going on since the 14th century and a dispute that will probably
be going on long after we are all gone.
So let us establish some ground rules primarily that not a single
drop of American blood should be shed in the former Yugoslavia, and let
us ask ourselves how long the American taxpayer must continue to bear
the major burden of U.N. peacekeeping expenses. We contribute 31.7
percent of the total, far more than any other country. I believe
strongly that those countries in Europe that are in the region should
bear more of the burden.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from Oklahoma
[Mr. Nickles].
Mr. NICKLES. Mr. President, I wish to compliment Senator Dole for his
leadership in--I am saying Bosnia but really I mean in Yugoslavia.
I had the pleasure of traveling with Senator Dole and several
colleagues a couple years or three ago to the former Yugoslavia. I
think all of us came away from that trip with a real concern for the
people of Yugoslavia for each of the republics and certainly those
republics that were oppressed, in many cases really being strongly
oppressed, by the Serbian Government headed by Mr. Milosevic. I think
we felt that we wanted to do something.
As a matter of fact, we did do a couple things. We did pass an
amendment on a foreign operations appropriations bill that said we
should allocate our foreign aid only to those republics in the former
Yugoslavia that made moves and progress toward democracy.
I might mention at that time that amendment was opposed by at that
time the State Department in the Bush administration. They did not want
to have any strings tied by Congress on foreign aid in Yugoslavia, but
we still passed the amendment despite some objections by the
administration.
I remember being involved in that in a very long conference, but I
felt like it was important.
Mr. President, no question there is some significant tragedy in
Yugoslavia today, certainly in Bosnia, and our hearts go out to all the
innocent victims, and there are thousands of innocent victims. And
certainly when you see the atrocities, when you see the murders, when
you see the rapes, when you see the former very beautiful, lovely,
peaceful villages pounded by artillery, it makes your heart go out to
those people. What should we be doing?
I am critical of the administration for their--I am going to say
vacillating policy on Bosnia, really for the last year and half but
especially in the last 2 or 3 months.
I am critical of their tendency to delegate so much authority to the
United Nations, and I remind my colleagues that last summer this
Senator offered an amendment that said we should not be delegating our
responsibility certainly in combat roles to the United Nations.
Yet we see that is exactly what has happened in Bosnia, when we
looked at some of the reports of NATO or the commander in the field
saying, well, we want to call in air strikes, and they would run that
through the chain of command of the commander in the field through
NATO, and then they had to get the permission of the United Nations. In
some cases it took over 4 hours to get the permission to respond to an
attack that was ongoing. By that time, it was too late. I think it
shows some of the confusion, some bureaucracy in the chain of command
that is present and really makes it a very inept military operation.
Mr. President, part of my complaint or part of my objection to the
Clinton administration is that we do not have a clear or a defined
military objective. This is a significant deviation from what we have
had from previous administrations, both in President Reagan's
administration and President Bush's administration. We said that our
military should not be engaged in a military operation unless they had
clearly defined objectives, stated goals, accomplished the objective,
end of mission.
That is what we had in the Persian Gulf, and it worked very
effectively. I remember one time we did not have that objective, and
that was in Lebanon and we saw a real disaster happen in Lebanon. Many
were critical of that. We hated to see that happen. We had unnecessary
loss of life. The administration took remedial action and we pulled our
troops out of Lebanon.
My heart goes out to the innocent people in Lebanon, another
beautiful country, with lovely people, and you had this uncontrolled
chaos and fighting. But this was not a problem in my opinion that was
appropriate for American soldiers to solve.
I look at Bosnia, and I will confess to being more willing a couple
years ago to be interventionist militarily but not with this
administration and certainly not with the chaos that is there. I say I
do not think we could solve the military situation in Bosnia with
500,000 troops on the ground. Certainly we cannot solve the situation
in Bosnia with air strikes, as President Clinton mentioned that last
night.
Yet he is escalating the tensions and he is escalating the investment
of the United States. By investment I am talking about risking lives of
men and women of the United States armed services, risking the prestige
of the United States by saying, yes, we are going to have air strikes,
we are going to try to protect these five various corridors as safe
havens. They have been safe havens declared by the United Nations, but
we have not enforced that. Certainly it has not happened in Gorazde.
And then when you see vacillation, you see the Secretary of Defense,
Mr. Perry, on TV I think about 3 weeks ago saying we would not
intervene militarily and a week later we were, that kind of a mixed
signal is almost an invitation for the Serbs in Bosnia to attack, and
they did. They escalated their bombardment and shells and artillery
fire in Gorazde, and we have seen a real atrocity as a result.
Again, this vacillation in foreign policy I think has cost the United
States in leadership and prestige, and I think has contributed to a
real decline in our influence not only in the United Nations but in
NATO and in the world today.
Then, Mr. President, I will just say, looking at the President's
press conference last night and some statements, well, we are going to
extend air power, yet air power is not going to be enough and will not
be effective, that concerns me. We are going to use air power to maybe
increase the punishment and the pressure on the Serbs so they come to
the bargaining table. That sounds so reminiscent of Vietnam. It was not
successful in Vietnam. I doubt it will be successful in Bosnia. I hope
it would be. I would like to say maybe this would work. When I look at
the President who says this is what he is going to try to sell the
allies, and we talk about Britain and the French, neither of whom have
endorsed this proposal. The Russians have not endorsed it. So we do not
even have support from some of our closest allies within NATO. We lost
a great deal of influence in NATO and lost a great deal of influence
within the United Nations.
President Clinton even mentioned last night, yes, he would like to
lift the arms embargo, but we have not been successful in convincing
the United Nations.
Two years ago President Bush was quite successful in convincing the
United Nations if there was a resolution that we needed to pass we
could get our allies on board and pass it. We had influence in the
United Nations. Obviously we have lost that clout.
Now a lot of people have spent a lot of time debating whether we
should have this resolution, whether we should do it unilaterally or do
it through the United Nations. Presently, the United Nations says we
are going to have an arms embargo on all of Yugoslavia, and some people
say that is still in effect even though there no longer is a
Yugoslavia. We have not been successful in convincing our allies this
is not in the best interest in Bosnian to be able to defend themselves.
Let us pass a resolution repealing it or modifying it or changing it.
The administration and President Clinton said he has been in favor of
this for a year. We still have not done anything.
So, it makes me think that we have lost a great deal of influence and
prestige in the United Nations.
And if you look at the United Nations and their resulting efforts not
only in Bosnia but in Somalia, in Rwanda--I mean, read the paper today.
You have U.N. troops in Rwanda who are destroying their uniforms and
fleeing. In Somalia, we had a change in mission in the United Nations
from humanitarian to nation-building, and that was a disaster. Six
months ago, people were talking about the United Nations putting up to
50,000 troops into Bosnia. And one time people were talking about
whether the United States might put in 25,000 or maybe a third of
whatever contingency would be put in.
Yet, again, you see all this confusion of who is going to be in
charge in the chain of command. Will NATO be in charge? Will the United
Nations be in charge? We find today a great deal of confusion and
ultimately the United Nations having the final say. And, again, that is
no way to run a military operation.
We have gotten so far away from what we have had in the past, where
we stated we would only use our military to carry out clearly
definable, winnable military objectives. And that is not the case in
Bosnia.
One thing we could do--and I agree with Senator Dole--one thing we
could do is lift the arms embargo.
And Senator Dole and others of us offered a sense-of-the-Senate
resolution last year, and it passed overwhelmingly, saying we should do
this. But the administration has not followed up.
So now Senator Dole is taking the next step and saying, let us make
it legislative language. I just hope that our colleagues will agree
with this.
Maybe this language is not perfect. Well, it can be changed. Maybe
the language could be changed in conference if we were successful in
passing it or it would be changed on the floor of the Senate. But we
need to send a signal if we want to do something.
Should we not allow the people in Bosnia to be able to defend
themselves? I would hope so. They may not be able to win the war. I
doubt they can. They may not be able to overturn the gains the Serbs
have made by acquiring something like 70 percent of Bosnia. They may
not be totally successful, but at least they should have the right to
be able to defend themselves.
I might mention that I, along with many of our colleagues, have met
with many people in Bosnia. They have not asked for U.S. troops. Maybe
one or two individuals have, but, for the most part, they have not
asked for U.S. troops. They have asked for the right to be able to
defend themselves.
So I concur with the Republican leader, Senator Dole, and others who
say, let us do something. I think the amendment that Senator Dole has
on the floor is a big step in the right direction, and I hope that our
colleagues will concur.
Mr. President, I yield the floor.
Mr. HATFIELD. Mr. President, the drive by the Bosnian Serbs into
Gorazde shattered the hopes that protected areas could not be
established without significant numbers of United Nations peacekeepers
and possibly, without military support for those peacekeepers.
Any United States action in former Yugoslavia must be taken in the
context of our own national interest as well as out of concern for the
fate of the Bosnians. Determining our national interest is difficult. I
disagreed with those who thought that the war with Iraq was in our
national interest. Some Americans may believe that it is in our
national interest to intervene in Rwanda, where already 100,00 people
have died in only a few short weeks of fighting. And some congressional
leaders are calling for military intervention in Haiti.
The supporters of these pending amendments argue that the United
States should break with the international community and unilaterally
lift the arms embargo on the Government of Bosnia and Herzegovina. And
the amendment's backers would also argue that the United States should
be the first to arm the Bosnian Moslem government.
I cannot support this amendment. While I clearly understand the
concern of the authors, I do not agree with their reasoning. If this
amendment passes, the United States will go on record as rejecting the
multinational, comprehensive approach to ending the war in former
Yugoslavia. The response to the lifting of the embargo could endanger
allied troops assigned to the peacekeeping effort.
I believe it is disingenuous--if not naive--to argue that our lifting
of the embargo and weapons support to the Bosnian government does not
constitute military intervention by the United States. I do not know
how such an action would be interpreted by the Serbian leadership, but
the very fact that such a question exists means that this proposal does
not provide certainty. Rather than risk extension of the war, I believe
we should put in place an economic and diplomatic choke hold which will
take away the Serb's means to conduct the war.
Lifting the arms embargo does not guarantee that there will be peace.
It guarantees that there will be more war, more deaths and we will have
played a part.
Mr. D'AMATO. Mr. President, as a cosponsor of the Lieberman-Dole
amendment, I rise today in support of lifting the arms embargo on
Bosnia.
With the coming fall of Gorazde, it is obvious that the Serbs will
not relent. Time after time, we have seen that the Serbs have violated
their own ceasefires, four this week alone. They have no plans to stop
because they know that the world will do nothing to prevent their
constant attacks on the Bosnian people. For this reason, I believe that
the United Nations arms embargo against Bosnia must be lifted.
We have all seen the horrors of this war of aggression by the Serbs.
Inhumane attacks by the Serbs against innocent Bosnian men, women, and
children have not stopped for over 3 years now. The Serbs have given a
new name to their mass slaughter: ethnic cleansing. They have conducted
mass murder and mass rapes of Bosnian women, and have caused over 2
million people to flee the country as refugees. After all this, we have
done nothing.
Similarly, over 50 years ago, the United States refused to act on
very persuasive information from a variety of credible sources, that
said that the Nazis were killing Jews and other groups of people by the
thousands and eventually millions. Not until our forces actually
liberated the death camps, did we gain the full understanding of what
went on inside of Germany and occupied Europe.
Mr. President, the Serbs understand only one thing: force. When
confronted with opposition, they backed down and abided by the
ceasefire. Our waffling in Gorazde, though, has encouraged the Serbs to
continue their war of aggression and killing rampage.
The Bosnian people are poorly armed, fed, and clothed, but they are
willing to fight fiercely to defend themselves to avoid certain death
at the hands of the Serbians. While self-defense is Bosnia's right as
an independent nation, we have denied her the right to obtain any
weapons. Thus far, we have stood by and allowed a nation we recognize
diplomatically to be extinguished. This policy must not continue.
Muhammad Sacirbey, Bosnia's representative to the United Nations,
told me in my office, that they do not want United States troops. They
want our weapons. ``Give me weapons and we will fight,'' he told me.
Let's do what is right. Let's give them the few small weapons they need
to defend themselves.
Mr. President, the victimized people of Bosnia deserve our help. We
have ignored the death and destruction by the Serbs for far too long.
Now is the time for action, not the sellout of an entire people. At the
end of World War II, we said ``Never Again.'' It is apparent, that we
have broken our word. What is at stake is the survival of an entire
nation. We must not allow the people of Bosnia to be snuffed out. Let's
lift the arms embargo now.
Mrs. HUTCHISON. Mr. President, it has become clear to people in the
United States and around the world that the United Nations policies
with regard to Bosnia and Herzegovina are not comprehensible, are not
coherent, in fact the problem is there is no policy. Once again, those
who we hope will abide by international norms have demonstrated with
impunity that their lust for blood will not be satiated until they have
laid waste to Bosnia.
The lessons of Munich have been clear ever since Neville Chamberlain
handed over to Hitler all his demands. Now, we stand idly by while Serb
forces slaughter innocent men and women. While it is not in our
interest to deploy United States forces into Bosnia, it is most
certainly in our interest to allow those who would fight for their
lives to do so.
If Lafayette had been sent to our shores with only humanitarian aid
during the American Revolution we would still be a crown colony today.
I am not advocating sending United States ground troops to Bosnia,
but I am advocating giving those with the will to fight--the means to
fight.
The fledgling United States was given that opportunity in our
struggle for freedom. It is only just that we give that opportunity to
those who only wish to fight for their lives.
We have a moral responsibility to support those who will do for
themselves what the West collectively will not and should not.
It is fitting that this amendment would be offered to the bankruptcy
bill, because bankrupt is a fitting description of our policy toward
Bosnia.
We must act now to allow the Bosnian people to defend themselves.
Mr. HEFLIN addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Alabama,
Senator Heflin.
Mr. HEFLIN. Mr. President, I ask unanimous consent that, other than
the pending amendments numbered 1640 and 1641, the only remaining floor
amendments in order to S. 540, that is the bankruptcy bill, be those
relevant to the subject of Bosnia and those sense-of-the-Senate
amendments relevant to the Housing Authority's policies.
The PRESIDING OFFICER. Is there objection to the unanimous consent
request as propounded by the Senator from Alabama?
Without objection, it is so ordered.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Republican leader,
Senator Dole.
Mr. DOLE. Mr. President, I want to take a few moments to express my
support for the Bankruptcy Amendments Act.
As my colleagues know, this bill is designed not to overhaul the
current bankruptcy system, but rather to streamline a system that has
worked relatively well since 1978, when the current Bankruptcy Code was
adopted. Modernizing the bankruptcy system is vitally important today,
as the number of bankruptcy filings continues to increase. The
Administrative Office of the U.S. Courts, for example, estimates that
nearly 1 million bankruptcy filings were made in 1992, triple the
number just 8 years earlier.
Some of the worthwhile provisions in the bill include:
Small Business Investment Corporations: This provision would prohibit
Small Business Investment Companies, or SBIC's, from filing for
bankruptcy under chapter 7 of the Bankruptcy Code. As a result of this
change, financially troubled SBIC's would opt instead for liquidation
under the receivership laws regulated by the Small Business
Administration. Under Chapter 7, the Small Business Administration
recovers little of nothing, since the SBA claim is unsecured. On the
other hand, when the SBA acts as a receiver, it normally recovers up to
100 percent of its claim.
The Congressional Budget Office estimates that prohibiting SBIC's
from filing for bankruptcy under chapter 7 would save the Federal
Government $52 million in fiscal year 1994.
Temporary Small Business Bankruptcy Program: Many observers claim
that the current chapter 11 reorganization procedure has proven too
costly and cumbersome for many small businesses seeking bankruptcy
relief. As a result, a second provision would establish a temporary
small business bankruptcy program--chapter 10 of the Bankruptcy Code--
for small businesses with debts of less than $2.5 million. This
program, which will be tested in eight pilot districts throughout the
country, is designed to improve efficiency by accelerating the
reorganization time for bankrupt small businesses. It's my hope that
the pilot program will work as expected, but if it fails to achieve its
intended goals, it can be easily discontinued.
National Bankruptcy Review Commission: A third provision would
establish a National Bankruptcy Commission to identify those areas in
the Bankruptcy Code that need further improvement. The Commission is
required to report its findings to Congress.
Finally, Mr. President, I want to congratulate my distinguished
colleague from Iowa [Mr. Grassley] for his hard work in crafting this
bill and ensuring its passage by the Senate. Because of Senator
Grassley's leadership, our bankruptcy laws will be made more efficient
and more equitable, and will reflect the commonsense approach that is
Senator Grassley's trademark.
Mr. President, in a moment I am going to send an amendment to the
desk with reference to the Housing Authority's policies. But first I
want to thank my colleague from Oklahoma, because I do believe that we
should vote, we should send a statement, whatever.
At 3:45 or 4 o'clock today, we had a call from Prime Minister
Silajdzic from Sarajevo telling us how bad it was in Gorazde today and
how they have been told, if they did not vacate, get all the troops out
of the city by 4 o'clock, they were going to come in with the tanks and
level the city.
The Serbs know no end to violence. They shelled the Red Cross,
shelled the hospital, innocent children. It is almost unbelievable the
atrocities that are occurring there.
Now, maybe lifting the arms embargo is not going to happen overnight,
but I think the Bosnians are prepared for the long haul. They have a
pretty good army. But we were told again by the Vice President, Mr.
Ganic, today that they have one rifle for every four men. They have
eight tanks. The Serbs have 300. They are outnumbered, they are
outgunned, they are out-everything, except they have the will and they
want freedom and they want a right to defend themselves. It seems to me
if we cannot do anything else, we ought to give them that right.
I hope that we will vote on the amendment tonight. It seems to me
that it is fairly clear.
This is what the Vice President, Mr. Ganic, said:
All we ask for is a limited quantity of defensive weapons,
not for victory, but for survival.
They are not looking for offensive weapons. They want antitank
weapons to protect themselves.
Prime Minister Silajdzic said:
The news I received from Gorazde makes me shudder, and the
best description for what is going on there is silence. The
best description of death is silence * * *
We are all sick and tired of a fascist junta being called a
side in the conflict, and the legal government being called
another side in the conflict * * *
The United States of America should not go on record as
holding an embargo on a country, a member of the United
Nations, a victim of fascist aggression of the Belgrade
regime.
That was some of the information we received on the telephone.
Obviously, they are desperate. They do not know where to turn, because
everywhere they turn, they are turned down.
And so I hope the amendment that I have offered with the
distinguished Senator from Connecticut, Senator Lieberman, and others,
will prevail. We are prepared to make at least one change with
reference to prohibition, which we thought might satisfy some
colleagues on the other side. But failing that, it seems to me we ought
to vote to table it. If they cannot table it, we ought to pass it.
Amendment No. 1655
Mr. President, I send an amendment to the desk with reference to
public housing, and I ask for its immediate consideration.
The PRESIDING OFFICER. Without objection, the pending amendments are
laid aside.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Kansas [Mr. Dole] proposes an amendment
numbered 1655.
Mr. DOLE. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection it is so ordered.
The amendment is as follows:
At the appropriate place, add the following:
Findings.--The Senate finds that--
(1) It is the fundamental obligation of government to
protect its citizens;
(2) In many federally-financed public housing projects, the
level of violence has reached epidemic proportions,
threatening on a daily basis the lives of the majority of the
tenants, who are law-abiding;
(3) In an effort to combat gang and drug-related violence,
the Chicago Housing Authority (``CHA'') instituted a policy
of conducting warrantless, apartment-to-apartment searches of
CHA projects, including the Robert Taylor Homes;
(4) On April 7, 1994, federal district court judge Warren
Andersen ruled that CHA's search policy violated the Fourth
Amendment to the Constitution of the United States and
enjoined CHA officials from undertaking these searches;
(5) After the court decision, President Clinton directed
Attorney General Janet Reno and Secretary of Housing and
Urban Development Henry Cisneros to develop law enforcement
measures that would be both constitutionally valid and
effective in reducing violent crime in public housing
projects; and
(6) President Clinton subsequently announced new federal
guidelines designed to assist public housing officials in
maintaining order and protecting the security of their law-
abiding tenants.
Therefore, it is the sense of the Senate that the Senate
fully endorses the new Administration guidelines, outlined in
a letter to President Clinton from Attorney General Reno and
Secretary of Housing and Urban Development Cisneros, dated
April 14, 1994, including the guidelines allowing public
housing officials to 1) erect fences around public housing
buildings, issue identification cards to tenants, and install
metal detectors or magnetometers at the building entrances;
2) search the packages and clothing of anyone seeking to
enter public housing buildings and refuse entry to anyone who
does not submit to inspection; 3) conduct weapons searches
without consent or a warrant in common areas of the
buildings, such as stairwells, and in vacant apartments; 4)
frisk ``suspicious-looking'' individuals for weapons, if
police or security personnel have a reason to believe that
the individuals are involved in criminal activity and are
armed; 5) include non-coercive consent clauses in lease
agreements permitting routine, warrantless apartment-by-
apartment police searches for illegal weapons and illegal
drugs; and 6) conduct warrantless searches of individual
units where there is justification for a search but
insufficient time to obtain a judicial warrant.
Mr. DOLE. Mr. President, it is my understanding Senator Wellstone
will offer a second-degree amendment. He may be willing to enter into a
time agreement of 40 minutes. I am not going to take a lot of time. In
fact, I probably will take 20 minutes of the 40 minutes. So I hope we
could have a vote here by shortly after 8 o'clock.
I know this Senator is supposed to be receiving an award somewhere
tonight, but I may not make it. I am certain they can mail it to me or
something.
Mr. President, in an article last year, columnist George Will asked
an important question--one directed specifically at Republicans. He
asked, ``What does conservatism have to say to my friend Karen
McCune?''
Now, who is Karen McCune, you may ask? Mr. Will explains that:
She's 9 years old, 47 pounds, and full of life and bravery.
She needs bravery because she lives in the Cabrini-Green
housing project in Chicago. She goes to the Jenner School,
named after the man who invented the small pox-vaccine. Three
grade-schoolers, in the span of 1 year, were killed
accidentally, getting from Cabrini-Green across the free-fire
zone that is Chicago in those areas, into the Jenner School.
Karen sleeps, in a bed near a window except when the gunfire
gets too fierce, and then she and her siblings go into the
hall and hide.
Mr. President, Karen McCune is not a citizen of Bosnia, or Rwanda, or
the Gaza Strip. She is a child of America, and her life of terror is
one lived by thousands like her in the public housing projects
throughout the United States.
The criminals who terrorize public housing are not the victims of
society, as the root-cause liberals would have us believe. The real
victims are the law-abiding tenants--children like Karen McCune--whose
lives are spent dodging bullets, avoiding the drug dealers, just hoping
to get through another day without incident--alive.
In an effort to combat gang and drug-related violence, the Chicago
Housing Authority recently established a policy of conducting
warrantless apartment-to-apartment searches of C.H.A. projects. Not
surprisingly, a majority of the law-abiding tenants in C.H.A. buildings
supported this policy.
Earlier this month, the Federal district court in Chicago got
involved, ruling that the C.H.A. search policy violated the fourth
amendment's ban on unreasonable searches and seizures. The court then
enjoined C.H.A. officials from undertaking any additional searches.
To his credit, President Clinton quickly responded to the court
decision, directing Attorney General Reno and Secretary of Housing and
Urban Development Henry Cisneros to develop measures that would be both
constitutionally valid and effective in reducing violent crime in
public housing. These measures were unveiled last Saturday, during the
President's weekly radio address.
Under the President's new policy, public housing officials are
encouraged to implement the following anticrime measures:
First, erecting fences around public housing buildings, issuing
identification cards to tenants, and installing metal detectors at
building entrances;
Second, searching the packages and clothing of anyone seeking to
enter public housing buildings and refusing entry to anyone who does
not submit to inspection;
Third, conducting weapons searches without consent or a warrant in
common areas, such as stairwells, and in vacant apartments;
Fourth, frisking suspicious-looking individuals for weapons, if
police or security personnel have a reason to believe that the
individuals are involved in criminal activity and are armed;
Fifth, including consent clauses in lease agreements permitting
routine, warrantless apartment-by-apartment police searches for illegal
weapons or illegal drugs; and
Sixth, conducting warrantless searches of individual units where
there is a justification for a search but insufficient time to obtain a
judicial warrant.
Mr. President, this amendment is nothing more than an endorsement of
the administration's new policy, as outlined in a recent letter to
President Clinton from Attorney General Reno and Secretary Cisneros.
This amendment does not break new ground, nor does it proposes anything
that President Clinton has not already endorsed. It simply recites some
of the key elements of the new administration policy, and puts the
Senate four-square behind them.
Of course, the new administration policy is a small step, and we
should not expect it to put an end to the violence at Cabrini-Green, or
at the Robert Taylor Homes, or at the other bullet-ridden public
housing projects that line the urban landscape. But I am prepared to
hope that the policy, if acted upon, can--and will--make a difference.
Of course, there are those who argue that the administration policy
goes too far, that it may even violate the fourth amendment to the
Constitution.
I happen to disagree, and Attorney General Reno, the Justice
Department, and the President of the United States happen to disagree,
as well. I understand my distinguished colleague from Minnesota [Mr.
Wellstone] intends to offer a second-degree amendment that would not
only water down my amendment but also represent a retreat from the
administration's own policy.
Again, I have not seen the amendment so maybe I should reserve. But
it is my understanding it would explicitly provide that residency or
continued residency in public housing could not be made contingent on
the inclusion of a consent clause in a lease agreement.
I think at that point I hope the Senator from Minnesota might--the
Senator from Minnesota is on the floor. I hope we might, first of all,
get a time agreement. Then I understand he will second-degree the
amendment I have sent to the desk. I will at the appropriate time move
to table the second degree amendment. If it fails, I assume we will
adopt my amendment as an amendment; if the motion to lay on the table
is agreed to, I hope then we would vote on the original amendment.
So, I yield the floor.
The PRESIDING OFFICER. Who seeks recognition?
The Chair recognizes the Senator from Minnesota, [Mr. Wellstone].
Amendment No. 1656 to Amendment No. 1655
Mr. WELLSTONE. Mr. President, I send a second-degree amendment to the
desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Minnesota [Mr. Wellstone], for himself and
Mr. Feingold, proposes an amendment numbered 1656 to
amendment No. 1655.
Mr. WELLSTONE. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the amendment, add the following--
Provided, however, with respect to ``consent clauses in
lease agreements'' referred to above--
(a) Residency or continued residency in public housing is
not contingent upon the inclusion of such a consent clause as
a provision of a lease agreement, and
(b) Residents or prospective residents are informed that
residency or continued residency in public housing is not
contingent upon the inclusion of such a consent clause as a
provision of a lease agreement.
Mr. WELLSTONE. Mr. President, first of all let me say this.
Mr. FORD. Mr. President, will the Senator yield?
Mr. WELLSTONE. I will be pleased to.
Mr. FORD. Is there a possibility of getting a time limit on this
amendment?
Mr. WELLSTONE. Yes.
Mr. FORD. How much time?
Mr. WELLSTONE. I would say 15 minutes on each side? If that is OK
with the minority.
Mr. FORD. Mr. President, I ask unanimous consent that there be a time
limit until 8:30, equally divided. At 8:30 a vote will occur on or in
relation to the amendment.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. FORD. I thank the Senator.
The PRESIDING OFFICER. The Senator from Minnesota retains the floor.
Mr. WELLSTONE. Mr. President, let me just read a portion of the
administration's policy. Really what I am trying to do is improve upon
that policy. I believe, actually, this amendment is quite consistent
with what the minority leader has presented to us in his resolution.
The policy reads
A search is lawful if it is conducted pursuant to an
uncoerced consent. Leases in housing projects, as elsewhere,
typically include a standard consent clause permitting the
housing authority to conduct routine maintenance inspections
and to enter the tenants' apartment in case of emergency.
Where crime conditions in housing developments make unit-by-
unit inspections essential, similar lease consent clauses
could be employed to authorize periodic administrative
inspections of tenants' units for unlicensed or unauthorized
firearms.
Mr. President, I think all of us on the floor of the Senate,
Republicans and Democrats alike, are concerned about the violence and
the guns. But I would just like to explain my amendment and talk a
little bit about why I think it is so important.
My amendment essentially says, and this would be at the end of the
Dole resolution amendment--``provided, however, with respect to consent
clauses in lease agreements referred to above''--and what I am really
talking about is that--
* * * continued residency in public housing is not
contingent upon the inclusion of such a consent clause as a
provision of a lease agreement, and residents or prospective
residents are informed that residency or continued residency
in public housing is not contingent upon the inclusion of
such a consent clause as a provision of a lease agreement.
To put that into plain English, let me first of all identify the
problem and let me tell you why I think this is actually a helpful
solution which I believe my colleagues would want to vote for.
The New York Times had an editorial yesterday in which they talked
about this policy. I think the most important part of their editorial
reads as follows:
Yet among his proposals was the highly suspect idea of
requiring public housing leases to include a tenant's waiver
of the very privacy rights Judge Andersen ably vindicated--a
standing consent to a warrantless search. What could be more
coercive than an implicit demand for a waiver of rights as a
condition of shelter? It is hard to imagine a waiver
provision in a lease form that an applicant could feel free
to reject. Nor is it easy to imagine such a waiver surviving
a constitutional challenge in Judge Andersen's courtroom.
My point is this. If we are talking about public housing and we are
talking about poor people, people who are desperate for housing, with
huge, long backlog, long, long waiting lists, people who are absolutely
desperate, the only alternative is to be homeless, then it would seem
to me that what you want to make crystal clear to people is: Look, we
ask you to sign a waiver so as a matter of fact we can come in and
search your apartment. But, what we want to make clear to you is that
if you do not sign that waiver, you are being accepted into this
housing project and being able to live here is not contingent on it.
In other words, it is extremely coercive. We are talking about the
fourth amendment to the Constitution. We are talk about the most
important principle in our country that has to do with search and
seizure.
I introduced this amendment as a safeguard, which I believe the
administration and I believe colleagues here would be very supportive
of. We are not saying that we do not want to take all steps necessary--
and there is much in the administration's policy that goes in that
direction of trying to go after these guns. We are not saying that we
would not ask a prospective tenant to sign a waiver. The only thing we
are saying is it ought to be crystal clear to that tenant that if he or
she does not sign the waiver then they are not going to be without
housing. That is what makes it not coercive.
My colleagues I know are going to say that this is not coercive. I
know they are going to say that that they are concerned about making
sure that poor people do not have to live under a different standard.
And all this amendment does is make sure that is the case.
One more time, let me just state what is at issue here. Let me make
two points.
The A part of what is at issue here in my view is that I really am
glad that now we have a focus on how it is we are going to reduce this
violence in these housing projects. I certainly wish that part of that
focus was making sure that we pass strict laws that dealt with assault
weapons. Get them out of the housing projects. I certainly hope and
wish that part of what we do is make sure there are real educational
opportunities, that we support child care, that we have good community
police.
I am for all of that, and I hope that we do that. But it does seem to
me that at the very minimum, if we are going to be talking about
knocking someone's door down--that is what we are talking about--that
what we say to people who live in this public housing is, ``Look''--and
if you were to take a referendum, by the way, among the tenants, they
will tell you they are absolutely desperate to do something about the
violence, the shooting, the threats to their children.
But I am quite sure, having done a fair amount of community work in
organizing, they will say, ``Look, it is reasonable. Please, Senators,
if you are going to have us sign this waiver and you are going to have
it say it is not coercive, then make it crystal clear that if somebody
should decide or should wish not to sign the waiver and not to grant
permission for the housing authority people, police--whatnot--to come
to our door anytime and come right into our apartment, that we will not
be in jeopardy of having a place to live.''
That is all this does, really, is give people that constitutional
assurance. I think it is due process, and it is fairness.
I see my colleague, the Senator from Illinois, is here, and I want to
ask him whether he may want to speak at this moment. I also want to
make it clear that Senator Feingold is an original cosponsor of this
amendment.
Again, let me say to my colleagues one more time that I am absolutely
not opposed to these initiatives. I just want to make sure that people
understand that if they should choose not to sign the waiver, they will
not be homeless.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. Who yields time? The Republican leader,
Senator Dole.
Mr. DOLE. Mr. President, I am going to try a second time today to
help the administration. I have not had much luck yet. I started on
Bosnia and somehow that got derailed. Now I am trying to help the
President on public housing. That is all I am trying to do here today.
I understand the amendment of the Senator from Minnesota. It just
takes the teeth out of it. It says if you do not want to sign a waiver,
you can still live in the building; so you can put all the weapons in
that tenant's building, whatever you have in mind.
It explicitly provides residency, or continued residency, in public
housing could not be made contingent on the inclusion of a consent
clause in a lease agreement.
The Reno-Cisneros letter to President Clinton, on the other hand,
does not make exceptions. It does not prohibit public housing
officials, nor the tenants themselves, from making residency contingent
on the inclusion of a consent clause in a lease agreement. It simply
says:
A search is lawful if it is conducted pursuant to uncoerced
consent. Leases in housing projects, as elsewhere, typically
include a standard consent clause permitting the housing
authority to conduct routine maintenance inspections and to
enter the tenant's apartment in case of emergency. Where
crime conditions in the housing development make unit-by-unit
inspections essential, similar lease consent clauses could be
employed to authorize periodic administration inspections of
tenants' units for unlicensed or unauthorized firearms.
That is not my quote. That is how it is interpreted by the
administration.
The Reno-Cisneros letter goes on to say:
* * * tenant associations should be encouraged to endorse
the use of building entrance security devices and the
inclusion of consent clauses in lease agreements. A
resolution by a tenant association would demonstrate
widespread tenant support for such measures, which is an
important factor in determining whether to include such a
clause in the lease. In addition, a showing of widespread
tenant support would be helpful in responding to challenges
by particular tenants to the constitutionality of
restrictions on entry and consent clauses in leases.
So, Mr. President, the administration's policy is clear, and a vote
for the Wellstone second-degree amendment is a vote against this
policy.
Finally, I want to go back to George Will's original question and
direct it not to conservatives, but to those at the ACLU and the New
York Times who oppose some of the administration policy's key elements,
including the proposal to allow public housing tenants to consent to
police searches through their lease agreements.
To these dyed-in-the-wool liberals, I simply ask this: What does
liberalism have to say to Karen McCune? Does it say, We will give you
more rights or more laws or more due process? I suspect, when all is
said and done, the Karen McCunes of our country would choose something
quite different, but much needed, in their young lives, which would be
more safety, more security, and more hope.
Mr. President, I ask unanimous consent that the letter to President
Clinton from Attorney General Reno and Secretary Cisneros be printed in
the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Office of the Attorney General,
Washington, DC, April 14, 1994.
The President,
The White House,
Washington, DC.
Dear Mr. President: On April 8, 1994, you asked us to work
together to devise law enforcement measures that would be
effective and constitutionally valid in dealing with the
severe problems of violent crime in urban public housing
developments such as Robert Taylor Homes and Stateway in
Chicago. During the past week, we have worked productively
toward that end. This letter outlines the conclusions we have
reached regarding a variety of law enforcement techniques
that might be used in combatting this grave problem.
You are familiar with the background: In response to the
escalation of violence and the prevalence of firearms in
public housing projects in Chicago, the Chicago Housing
Authority [CHA] instituted a policy of conducting
warrantless, apartment-to-apartment searches of CHA public
housing projects. On April 7, 1994, a federal court in
Chicago held that CHA's search policy violated the Fourth
Amendment. On that basis, the court enjoined CHA from
undertaking further warrantless apartment-to-apartment
searches of CHA housing units. The court made clear, however,
that its ruling did not preclude CHA from taking other steps
to conduct searches in and around the housing projects.
In the Chicago case, although some tenants opposed the
CHA's ``sweep search'' policy, many others supported the
policy and supported CHA's efforts to maintain order and
combat gang violence in the housing projects. The case also
made vividly clear once again how pervasive violence has
become in many of our inner-city housing projects. While
striking down the particular ``sweep search'' policy employed
by CHA, the judge recognized that the level of violence in
the housing projects represents a grave threat to the lives
and safety of innocent persons in and around the CHA
buildings.
Following the court's ruling and your request for us to
focus intensively on this issue, the Department of Justice
consulted with the Department of Housing and Urban
Development regarding the options available to a public
housing agency such as CHA in conducting searches on the
premises of public housing projects that suffer from very
high rates of violent crime. We outline here the options
that we considered, and which we concluded are
constitutionally valid, at least in the extraordinary
circumstances presented by the crime problem in the Robert
Taylor Homes and Stateway developments.
1. Securing the Building Entrances and Lobbies. Any effort
to stem violence in crime-ridden public housing projects must
begin in the lobbies of the buildings. In some high-rise
public housing projects, gang members effectively control
access to the buildings. They move freely in and out of the
buildings. While some buildings are protected by security
guards, those guards are often intimidated by gang members,
and they therefore let unauthorized persons enter the
buildings unchallenged.
It is essential that the housing authority gain control of
building lobbies and common areas. To accomplish that end,
the authority can erect fences around buildings, issue
identification cards to tenants, and install magnetometers or
metal detectors a the building entrances. Security personnel
should be accorded the authority to conduct follow-up
searches with hand-held metal detectors when necessary. They
should also be authorized to search packages and clothing,
and to refuse entry to anyone who does not submit to
inspection. Most importantly, the authority and the local
police must cooperate to ensure that the security guards have
sufficient protection to do their screening work effectively.
If the ground floor of the building is secure, other
techniques may not be necessary; if it is not, other
techniques are likely to prove futile.
2. Consent Searches. A search is lawful if it is conducted
pursuant to an uncoerced consent. Leases in housing projects,
as elsewhere, typically include a standard consent clause
permitting the housing authority to conduct routine
maintenance inspections and to enter the tenant's apartment
in case of emergency. Where crime conditions in the housing
development make unit-by-unit inspections essential, similar
lease consent clauses could be employed to authorize periodic
administrative inspections of tenants' units for unlicensed
or unauthorized firearms.
As in the case of maintenance inspections, such firearms
inspections should be conducted on a routine basis, during
daylight hours, and should be no more intrusive than
absolutely necessary to determine whether weapons are present
in the tenant's unit.
If the agency gives advance notice of the fact that an
inspection will be conducted and the general period within
which it will take place the intrusiveness of the inspection
will be lessened and any constitutional objection to the
inspection thereby reduced.
In appropriate circumstances, tenant associations should be
encouraged to endorse the use of building entrance security
devices and the inclusion of consent clauses in lease
agreements. A resolution by a tenant association would
demonstrate widespread tenant support for such measures,
which is an important factor in determining whether to
include such a clause in the lease. In addition, a showing of
widespread tenant support would be helpful in responding to
challenges by particular tenants to the constitutionality of
restrictions on entry and consent clauses in leases.
3. Searches of Common Areas and Vacant Apartments.
Experience in Chicago teaches that gangs commonly use vacant
apartments as bases of operation. The housing authority can
search the common areas of public housing projects and vacant
apartments without consent or a warrant, and at any time of
the day or night.
4. Weapons Frisks of Suspicious Persons. If police or
security personnel have reason to believe that an individual
is involved in criminal activity and that he is armed, they
may frisk him for weapons. Where police establish a presence
in an area and use their lawful power to stop and frisk
persons engaged in suspicious behavior, the use of that power
can be effective in disrupting and deterring violent crime.
5. Warrant Searches on Probable Cause. Whenever law
enforcement officials have probable cause to believe that a
specific dwelling contains evidence of a crime, a search may
be conducted with a judicial warrant. Police should make use
of expedited techniques for obtaining warrants, such as by
telephone or by having magistrates readily available to issue
warrants.
6. Searches Based on Exigent Circumstances. Housing
authority officials may conduct warrantless searches of
individual units where there is justification for a search
but insufficient time to obtain a judicial warrant.
7. Arrest Warrants. Housing or local police may enter a
dwelling unit to execute an outstanding arrest warrant if the
fugitive resides in the unit and the police have reason to
believe he is present.
During staff consultations between the two Departments, we
have discussed these alternatives and others in more detail,
and we will continue working together in devising and
refining law enforcement strategies that can be applied to
deal with this crisis.
Sincerely,
Janet Reno,
Attorney General.
Henry Cisneros,
Secretary of Housing and Urban Development.
Mr. DOLE. Mr. President, let me also quote from a news story from the
Washington Post where Mr. Cisneros, the Secretary of Housing and Urban
Development, says:
``We believe'' that the new initiative ``will pass
constitutional muster.'' He appeared, however, to place
substantial measure of legal confidence in the power of
public opinion--well-documented for years--in support of
drastic measures.
``Everything we have proposed here is in consultation with
[public housing] residents,'' Cisneros said. ``The residents
have requested that the policy of sweeps continue, and they
support them.''
And, like Clinton, he was quick to assert the rights of the
oppressed over the concerns of the ACLU, whose ``abstract
analysis of people's rights'' is ``swamped in real life by
people's rights being denied.''
Those are not my quotes; those are not any Republican quotes. That is
the Democratic Secretary of Housing and Urban Development, Mr.
Cisneros.
Mr. President, I reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. WELLSTONE. Will my colleagues give me 2 minutes?
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I want to say to my good friend, the
minority leader, in his resolution he talks about including noncoercive
consent clauses. That is all this is. That is exactly what I have done.
If you are in favor of that, then you certainly would not be opposed
to this.
Second of all, I simply say I am quite sure the Attorney General and
the Secretary of HUD make no bones about it, and would not at all
object to a specific reference to making clear this is noncoercive.
That is all this amendment does, for gosh sakes.
The PRESIDING OFFICER. Who yields time?
Mr. WELLSTONE. Mr. President, I yield, first of all, to the senior
Senator from Illinois, and then I will yield to the junior Senator.
The PRESIDING OFFICER. The Senator from Illinois, [Mr. Simon], is
recognized for up to 14 minutes 51 seconds.
Mr. SIMON. Mr. President, I shall not use 14 minutes 51 seconds.
I regret the minority leader has left the floor because I visited the
Robert Taylor homes, the area in controversy, on Monday morning. I took
no reporters with me, no television cameras, so I could just talk to
the people who are in that area.
Overwhelmingly, they want the police to do the job. They want people
to come in and inspect and take the guns and the drugs, and so forth. I
visited one room where they must have had 200 or 300 weapons. I am not
talking about just small weapons. These were AK-47's, and all kinds of
things, including rifles with sights so you could see 300 yards at what
you are aiming.
I am for the Wellstone amendment. If the Wellstone amendment is
defeated, I am going to vote for the Dole amendment. But Senator
Wellstone is absolutely correct that his amendment is not contrary to
the administration position.
I met late Monday afternoon with Vince Lane, the chairman of the
Chicago Housing Authority, and talked to the people at HUD. They said
they want this to be a voluntary thing, and they are going to make
clear that people have to voluntarily sign up.
I think you will see in the Robert Taylor homes, the area in
question, that 75 to 95 percent of the people will voluntarily sign up.
There is some fear of abuse by police. No question about it. But there
is much greater fear of the gangs and the weapons and everything else.
I would be personally surprised if at least 95 percent of the people
did not sign up voluntarily. I think we are making a big issue out of
something that is not a big issue.
Second, what the Wellstone amendment does is to make this
constitutional. You can criticize the ACLU and Judge Anderson, who,
incidentally, is a Republican appointee as a Federal judge, but we
cannot do something that violates the Constitution.
In terms of strict constitutionality, I think the Federal judge
rendered the proper decision. What we have to do is to fashion
something that can go after the weapons, can go after the drugs, and
provide security for the people there. I think the Wellstone amendment
moves in that direction.
I do not know if my friend, Senator Dole, is hearing my words right
now or not, because he went into the Republican cloakroom. I hope he
will recognize that his amendment and the Wellstone amendment are not
in conflict.
The letter that was sent by Secretary Cisneros and Attorney General
Reno is not completely clear in the waiver, but what they have made
clear and what Vince Lane, the Chairman of the Chicago Housing
Authority, made clear to me is that it has to be voluntary; otherwise,
it is not constitutional. They recognize that.
So I think we have created a huge controversy over nothing. My hope
is that the Wellstone amendment would be adopted by voice vote, and
then the Dole amendment would be adopted.
Frankly, I am going to vote for the Dole amendment even if the
Wellstone amendment is defeated. But I think by implication certainly
the administration policy includes precisely what the Wellstone
amendment has.
Ms. MOSELEY-BRAUN addressed the Chair.
Mr. WELLSTONE. How much time do I have?
The PRESIDING OFFICER. The Senator controls 10 minutes.
Mr. WELLSTONE. I yield 5 minutes.
Ms. MOSELEY-BRAUN. That will be fine.
The PRESIDING OFFICER (Mr. Graham). The Senator from Illinois is
recognized.
Ms. MOSELEY-BRAUN. Mr. President, I have done more than visit Robert
Taylor homes. I know people who live there. I know people who used to
live there, and I am intimately familiar as a product of the inner city
with conditions facing public housing today and particularly public
housing in the City of Chicago. We have seen this epidemic of violence.
Mr. President, public housing is one of the cornerstones of our urban
dilemma. Residents have become inhabitants of cordoned-off islands with
very little relief, opportunity or tools with which to do a job or have
some hope and an opportunity. To solve the problem of crime and
joblessness and hopelessness, I believe we have to address the issue of
providing a decent living environment. We have to focus on what are the
issues pertaining to security, not just the sweeps.
Now, there is an old expression in legal circles that ``hard cases
make bad law.'' It seems to me that the crisis of violence that we are
seeing in public housing now makes precisely the kind of hard case that
can, if we are not careful, give us not only bad law but bad policy as
well.
A fever pitch of debate over the mass searches known as sweeps and as
represented in this amendment has commanded the attention of the
country, as has the horror of the frightened residents and gunshot
wound victims.
I hope, however, that the energy we direct toward the debate about
sweeps gives rise to an equally energetic debate about what we do to
cure the dangerous place to live.
I hope that our only response to poverty and the hopelessness of
these communities is not to build fences, cordon off the developments
and take away people's fourth amendment rights. I hope that we have the
capacity to address this issue in a more serious manner.
Last year, Mr. President, there were 50 homicides in the CHA
complexes in Chicago. At the same time, those communities were living
with the following statistics: An 89 percent poverty rate; a median
family income of $5,400; only 32 percent of the adults had more than a
high school education; unemployment averages of 60 percent; only 8.5
percent of the residents were employed in private sector employment, so
the private sector has abandoned these areas altogether; and 45 percent
of the residents being children under the age of 14.
Now, when you aggravate that mix with drugs and guns--and they have
confiscated almost 1,200 in the last year--and overcrowding--Robert
Taylor has about 13,000 people, which is more than the population of
most Illinois towns. So when you aggravate the situation, what you wind
up with is the crisis of violence that we have.
Now, the sweeps have been used before in response to the peaks of
violence, but there is no question, Mr. President, that Band-Aids will
not provide the domestic security that the law-abiding residents of
public housing deserve. The hard case of what to do to provide a safe
and secure living environment for poor people who live in public
housing does demand a commitment, a commitment by this body, by this
Congress and by this administration to change the conditions that make
that environment presently uninhabitable.
Now, I am not going to argue that the residents of CHA who support
the sweeps are entirely wrong. Those are people who are confronted by
the realities of life there and who are frightened by the gangs, by the
intimidation, and who really want, at this point are prepared to forgo
what might be considered to be esoteric constitutional protection in
favor of the physical protection against the raging violence.
I think our community as a whole has a right to say this level of
violence is unacceptable and we will resort, if necessary, to something
approaching martial law. But I daresay, Mr. President, that the court
was right in saying that we cannot, that a landlord cannot unilaterally
take away the fourth amendment proscription against unreasonable search
and seizure from somebody just because that person happens to be poor,
and that is the issue with the Wellstone amendment.
What Senator Wellstone is trying to do is say that we are not going
to set up a new category. Everybody but poor people who live in public
housing enjoys the right under the fourth amendment to be secure
against unreasonable searches and seizures. So if we start at CHA
today, then where do we go tomorrow? Do the big apartment complexes
that do not have poor people living in them become subject to mass
warrantless searches, be subject to, as this amendment says, a search
of the packages and clothing of anyone seeking to enter public housing
and refuse entry to anyone who does not submit to an inspection, just
because the neighborhood is violent?
Now, in another higher-rent district, do we forgo the fourth
amendment there also? I daresay I for one believe that we have an
obligation to look beyond sweeps. But if the issue specifically is
sweeps, if the issues specifically are the plans to try to secure the
buildings, then what is wrong with doing what Senator Wellstone wants
us to do? All he wants us to do is to say for a tenant to give up his
fourth amendment right, for a tenant to say I am going to be less than
a citizen because I am too poor to live anyplace other than public
housing, then that person ought to at least have the right to consent,
that person ought to at least have the right to say I am going to sign
away my right voluntarily because I do not mind giving up my
citizenship in order to live in this subsidized housing.
Mr. President, I think this is a dangerous road to go down, and I
daresay--I may be running out of time.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. WELLSTONE. One more minute.
Ms. MOSELEY-BRAUN. One more minute. It is a dangerous precedent to
set, it seems to me. It is bad policy. It is bad law. But what is even
more frightening, Mr. President, is that this amendment is floating
around without a whole lot of public discussion in terms of legislative
initiative. I understand the minority leader says he just wants to help
us.
Well, my attitude is do not love us quite so much, or at least if you
are going to love us, let us talk about it first. The fact is that this
amendment without the protections of the Wellstone amendment is
constitutionally infirm, sets a dangerous precedent and, frankly, tries
to put a Band-Aid on a bad situation, on a cancer that is not going to
be cured by taking away the dignity of people who are poor and live in
public housing.
Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. WELLSTONE. Mr. President, I will just take 2 minutes right now.
Let me take the really strong words of Senator Moseley-Braun from
Illinois and translate them into human terms, personal terms. I cannot
even understand any opposition to this amendment. I wish to say that to
my colleagues. I think the Senator from Illinois, Senator Simon, is
right. It is consistent with the resolution. All I am saying to the
Senator from Illinois [Ms. Moseley-Braun] is you have a mother and
several children, and she is applying to public housing, and the only
alternative to that public housing given those long, long waiting lines
is to be homeless. At the very minimum, she should know that there is
(A) a clause she is being asked to sign, and (B) she should know that
if she does not want to sign that clause, which means that police could
come into her apartment at any time, she has the right to do so and not
have her family out on the streets.
An older woman. She is 80 years old, and she does not know what this
is about. Do we not have the obligation to inform her, to let her know
(A) there is this clause that you are supposed to sign, and this
clauses essentially says that police can come in, if they think there
is a gun or weapon in your home--
Ms. MOSELEY-BRAUN. Even if they do not.
Mr. WELLSTONE. And even if they do not--and (B) we want you to know
that you do not have to sign that. That does not mean you will be put
out in the cold.
That is all this says. If we are going to say it is not going to be
coercive and we are going to say it is going to be voluntary, which is
what the administration is saying, then I think this makes all the
sense in the world--not makes all the sense in the world. This is
exactly what we should go on record supporting. To not do so makes me
very worried about why any Senator would be opposed to this amendment.
The PRESIDING OFFICER. Who yields time?
Mr. SIMON. If my colleague will yield.
Mr. WELLSTONE. Yes.
Mr. SIMON. I would point out simply that is the policy of this
administration as spelled out in the Wellstone amendment.
That is why I am hoping that maybe we can still work out some kind of
a compromise with the Senator from Kansas because I do not think we are
really that far apart.
Mr. DOLE. Mr. President, I yield 5 minutes to the Senator from
Arizona on another matter.
The PRESIDING OFFICER. The Senator from Arizona is recognized.
Mr. DeCONCINI. Mr. President, I am very interested in this debate. I
have to say it seems to me something that ought to be able to be worked
out. But I do not have a dog in this fight, I guess, and I will stay
out of it.
I really feel that we all have a lot in the fight that is going on
this afternoon regarding the resolution offered by the Senator from
Connecticut and amended by the Senator from Kansas, the distinguished
minority leader.
Mr. President, it saddens me to listen to the debate today, really
saddens my heart and brings tears to my eyes, that in my travel to
Bosnia and Herzegovina on four different occasions in that part of the
world, to see the tragedy that is going on. And to see the ``excuses,''
as I have termed them, in all due respect that have been offered here
today, not to vote to lift the embargo and to legislatively lift the
embargo.
I realize the President is on the spot. I realize he has labored and
has been in turmoil regarding this. But the time is long overdue. We
cannot afford to not take this action.
It is a moral obligation. Believe me, it is a moral obligation. I
have interviewed people who have been in the concentration camps run by
the Serbs who saw their brother beaten to death over a 7-hour period,
who left their mother on the mountain to die so they would not be taken
prisoner and beaten up by the Serb military.
I have listened to them and looked in their eyes and saw the pain and
suffering. Now we see it on our TV screens. We see it in the most
tragic way, the most descriptive way of what is occurring there, and it
is genocide. It is murder.
As I said last night on a program I was being interviewed on, yes,
there have been atrocities by the Moslems towards the Croats and toward
the Serbian Bosnians. Yes, there have been aggressive offensives by the
Croats and by the Moslems toward the Croats, the Croats towards the
Moslems, and all parties have been guilty of some very heinous crimes
or offenses. But today, that has stopped between the Croats and the
Moslems; it has stopped between the Moslems towards the Serbs.
Here we have now the worst egregious offenses that we have seen since
the ethnic cleansing of some months ago, and it is time that we stand
up and vote what is morally correct; and, that is to lift this embargo.
So I frankly think we are doing the President a great favor by
passing the Dole amendment and the amendment of the Senator from
Connecticut, [Mr. Lieberman], tonight. We should do it. It is the right
thing to do.
Mr. President, lives of tens of thousands of innocent civilians are
threatened as the Serbs advance against the U.N.-designated safe haven
of Gorazde in eastern Bosnia and Herzegovina. If they continued and get
away with it, it is only a matter of days before they will start to
proceed towards the other ``safe havens''--and there are six of them.
We have only seen two of them attempted to be wiped out by the Serbs,
and one they backed away. That was Sarajevo. They did not back away
because we--when I say ``we,'' I mean collectively the Western World--
could not proceed with the courage to deliver the air strikes that
would have forced them to back away.
The tragedy that is unfolding in this beleaguered enclave
demonstrates yet a failure of diplomatic efforts to check Serbian
aggression and genocide which has claimed hundreds of thousands of
victims over the past 2 years.
I applaud President Clinton's latest initiative on Bosnia. There is a
broad recognition that air strikes alone will not work. We are not
talking about winning a war with air strikes. We are talking about
punishing the worst aggression toward humanity since the Second World
War.
We cannot continue to sit here and debate this and not take some
offensive action. Those who say, ``Oh, we are just being led down the
path to another Vietnam, or another Somalia,'' that is nonsense.
The Dole amendment and the Lieberman amendment make very clear that
there is no involvement of American troops here in lifting the embargo.
That is why I have for more than a year supported the strike-and-lift
approach, and we should do it. We know it can be done successfully. It
was done successfully before--just the threat of it.
General McPeak, the Chief of Staff of the Air Force, testified last
April and 3 weeks ago that the air strikes would bring little or no
risk to United States pilots or Western pilots. That does not mean
there will not be some--but ``little or no risk'' are the words he
used. And in addition to that, he said ``Give us the time and we can
take out all the artillery targets that the Serbians have.''
That is not a ground war that involves us for a long period of time.
It is a demonstrative military action that will punish genocide and the
perpetrators of it.
I hope this body will look itself individually in the face in the
mirror when they come to vote on that, whether it is tonight, or
Tuesday, or whenever it is.
The time has come, Mr. President, for the United States to be the
leader, as we are, but as we have failed to be in this instance. It is
not too late, though some have said after today that it may be too
late. It may be too late for a number of dozens or hundreds of people
who die. But it is not too late for our country to regain that moral
ground and demonstrate that we can lead, and we are not afraid. We have
a great opportunity here. Yes. It is too bad that it has to be dealt
with on a bankruptcy bill before us that is important. But that is the
time. This body is constructed to just do that any time that we feel it
is necessary. I feel it is necessary.
I truly hope that this amendment will pass.
I thank the distinguished minority leader, the Republican leader, for
yielding me time on this subject matter.
Mr. DOMENICI. Mr. President, when the Senate began consideration of
the Dole-Lieberman amendment this morning, I was participating in a
hearing before the Appropriations Committee. The witness was Secretary
of State Christopher. The major subject was U.N. peacekeeping, and many
of the questions pertained to the situation in Bosnia.
As the ranking Republican on the Commerce-Justice-State subcommittee,
I had to do some preparation and consultation. I listened carefully to
the comments of Secretary Christopher and the questions of Chairman
Hollings. I reached the following conclusions.
If there is a crisis in Bosnia that involves American national
interests, and I believe that such a case could be made, it requires
additional explanation by the President and rapid deliberation by the
Congress. This is too serious an issue to be handled through private
consultations. The American people need to know what we are doing, and
our justifications for our actions or inactions.
If a Bosnia peace settlement is negotiated, it will be contingent on
the subsequent deployment of tens of thousands of U.S. ground combat
forces. Long before then, the President needs to know whether Congress
concurs in his offer of ground combat forces to the United Nations.
Congress needs to determine now the human and fiscal costs of an
extended deployment of 25,000 American troops in Bosnia. At this
morning's hearing, I suggested that it would have a major impact on
force structure and cost many billions of dollars. That can not be
accommodated within the President's proposed force structure and its
accompanying budget.
This morning, Secretary Christopher could provide no useful
information about the impact on our own national defense posture of a
large, extended commitment of U.S. forces to U.N. peacekeepers in
Bosnia. He couldn't cite any specific DOD studies of the impact.
A few hours ago, Senator Cohen suggested that no one in this body
publicly favors the introduction of American ground troops in Bosnia.
That may be so, but the President and the Secretary of State are
telling us that a peace settlement in Bosnia will, inevitably, lead to
the introduction of American ground combat troops under U.N. auspices.
I repeat, our ground forces will go into Bosnia if the President's plan
for peace in Bosnia succeeds.
I have concentrated on the risks ahead if the President's efforts in
Bosnia succeed, as we all hope they will, whatever our doubts. The
risks of failure on our Nation's self-confidence and credibility have
been discussed by others. Whatever the outcome, there is a human and
policy consequence of our decisions to engage in Bosnia.
If the proposed policy of expanded air support and air protection of
the declared U.N. safe zones in Bosnia is implemented, it is likely
there will be casualties in the U.S. Air Force, Navy, or Marines. We
must be prepared for those casualties.
Let us begin defining United States national interests in Bosnia. The
President and the Secretary of State offered us some suggestions to
consider. Then, we need to consider a resolution authorizing use of
U.S. Armed Forces in the region. Those are the issues, not just
American participation in an arms embargo.
Mr. DOLE. Mr. President, we have had a discussion with the Senator
from Minnesota, Senator Wellstone, and with both Senators from
Illinois, and I think we have worked out an arrangement where the
Senator from Minnesota would withdraw his second-degree amendment, I
would modify my amendment, and I think it would then be acceptable.
In my view, it would be not the President's policy. But if that is
what the Senator from Minnesota understands and interprets in maybe
discussion with the administration officials, I am just trying to
support the President's view. If it should turn out that it is not the
President's view, I guess they can deal with that on the House side.
That would be my guess.
Mr. WELLSTONE. Mr. President, I thank the minority leader. I think
the operative language, if I can just clarify this, would simply be
that ``residency, or continued residency, in public housing is not
contingent upon the inclusion of such a consent clause as a provision
of a lease agreement.''
I will say to the minority leader that I actually think that is quite
the administrations policy. I think we really want to avoid people
being put into a situation which is coercive. I think this takes care
of that.
So with full knowledge that the Senator is going to modify his
amendment, I will withdraw my amendment.
The PRESIDING OFFICER. Without objection, the Senator withdraws his
amendment.
So the amendment (no. 1656) was withdrawn.
Amendment No. 1655, As Modified
Mr. DOLE. Mr. President, I send a modified amendment to the desk, and
I ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Dole] proposes an amendment
numbered 1655, as modified.
Mr. DOLE. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 2 of amendment 1655, strike clause No. 5 and
insert:
``(5) include noncoercive consent clauses in lease
agreements permitting routine warrantless apartment-by-
apartment police searches for illegal weapons and illegal
drugs, so long as residency or continued residency in public
housing is not contingent upon the inclusion of such consent
clause as a provision of a lease agreement.''
Mr. DOLE. Mr. President, this amendment has been described by the
Senator from Minnesota. In fact, it is the language taken from the
first paragraph of his amendment.
Ms. MOSELEY-BRAUN. Mr. President, I want to thank the minority leader
for working through this issue with Senator Wellstone. I think it is
acceptable and in the right direction. I appreciate the willingness to
work toward consensus on this issue.
The PRESIDING OFFICER. Is there further debate on the amendment, as
modified?
Mr. DOLE. Mr. President, I am prepared to yield back any time I have.
I thank the Senator from Illinois for her contribution, and also my
colleagues, Senator Simon and Senator Wellstone.
Mr. WELLSTONE. I yield back the remainder of the time.
The PRESIDING OFFICER. The proponents of the second-degree amendment
yield back the remainder of their time.
All time has been yielded. The question is on agreeing to the
amendment, No. 1655, as modified.
Mr. DOLE. Mr. President, I want to suggest the absence of a quorum
until we determine if it is all right to do it by a voice vote. I think
it is.
I understand that some people have been told there would be a
rollcall at 8:30. My view is that we can vote on the Bosnia amendment
at 8:30. We will check that out.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. MITCHELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Unanimous-Consent Agreement
Mr. MITCHELL. Mr. President, as is often the case, we are attempting
to accommodate the largest number of Senators possible with respect to
the schedule of this evening. We unfortunately have some Senators
moving away from the Capitol and some moving toward the Capitol, and we
are trying to find the proper balance to accommodate them.
I believe, after consulting with the distinguished Republican leader
and the other participants in this debate, that the course of action
that produces the least amount of inconvenience would be to have this
vote at 8:45.
Therefore, Mr. President, I ask unanimous consent that the Senate
vote on the Dole Amendment No. 1655, as modified, at 8:45 p.m. this
evening, and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. MITCHELL. Mr. President, I further ask unanimous consent that no
other second-degree amendments be in order to this amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MITCHELL. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. THURMOND. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. THURMOND. Mr. President, I rise in support of the Dole amendment
to lift the embargo on the Bosnian Moslems. But I do so with
reservations about taking this step unilaterally, against the wishes of
our NATO allies, who presently have troops deployed on peacekeeping
duty in Bosnia. I must point out that any step we take in the Balkan
quagmire carries risks. There simply are no good solutions.
Because the situation is so complex and seemingly defies a solution,
the crisis has left us befuddled and floundering, and has virtually
paralyzed our will. While I cannot say with any assurance that this
step or any other will bring about a peace settlement or even lower the
level of violence, one thing I can assert with absolute confidence.
Without firm, consistent leadership from the United States and the
Commander in Chief, the crisis will only grow worse. We will continue
to stumble from one humiliating episode to another unless the President
and the national security apparatus of the world's one remaining
superpower break the paralysis and confusion, and begin to act
resolutely and clearly.
I would much prefer to see the arms embargo lifted in concert with
our allies. Acting unilaterally and contrary to the views of our NATO
allies could undermine that important relationship.
However, I feel the situation has deteriorated to the point where
some decisive action is needed to change the equation. The embargo has
left the Bosnian Moslems defenseless against the rapacious cruelty and
aggression of the Serbs, armed with tanks and heavy artillery. With
good reason the West has refused to enter the war on the side of the
Moslems, or on any side. We have tried honestly, if ineffectually, to
broker a just and lasting peace. But it is no longer morally defensible
or strategically sound to deprive the Bosnian Moslems of the means to
defend themselves.
Many Senators have already spoken eloquently in support of the Dole-
Lieberman amendment. I will not consume the Senate's time to repeat the
case that has been made in favor of letting the Moslems at least have
the means to defend themselves, so that the Serbs cannot continue to
shell hospitals and kill women and children with impunity. Taking this
step, preferably with our allies, but unilaterally if we must, could
prove to be a decisive act of U.S. leadership. If the Serbs see their
advantage in heavy weaponry slipping away, if they see a Moslem
community armed and capable of retaliating for the indiscriminate
slaughter, perhaps they will seek a settlement at the peace table and
not on the battlefield.
But, Mr. President, even if lifting the embargo does not achieve that
result, I for one can no longer support a policy that guarantees the
slaughter of the innocent, and keeps the conflict going. Muddled half-
measures, abdicating our leadership to the U.N., and deluded wishful
thinking have not worked. The current policy has proven to be neither
practical nor moral. The time has come to try something else. I believe
the action called for by the Dole amendment is necessary, and in fact
long overdue.
Mr. BIDEN addressed the Chair.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Mr. President, I rise to speak to the amendment we are
about to vote on.
Parliamentary inquiry: Is there a time certain ordered for a vote?
The PRESIDING OFFICER. Under the unanimous consent agreement, at
8:45, we will vote on amendment numbered 1655, proposed by Senator
Dole, relating to standards in the Chicago Housing Authority.
Mr. BIDEN. Mr. President, I will then make my remarks necessarily
short.
I rise to speak to the issue of the constitutionality of the proposal
proposed by the President of the United States and endorsed here by
Senator Dole and others in this amendment that relate to whether or not
there is able to be a genuine consent given in a lease or a contract by
a public housing resident in essentially giving up their fourth
amendment rights.
I will speak to this in much more detail, but let me say I think it
is a close call, whether it can be done. There is no question that
there is a need for greater law enforcement, greater police presence,
greater security for public housing residents. There is no doubt about
that.
the arguments in favor of constitutionality
The supporters of this consent measure--and I recognize that the
supporters include the Attorney General, whose views are entitled to
the greatest respect--argue that this measure is constitutional because
it builds on established Supreme Court precedent relating to consent
searches.
This precedent holds that citizens may waive their constitutional
right to be free from police searches, and that consent searches are
constitutionally valid, so long as the consent is freely given.
A tenant who signs a lease agreement incorporating a ``consent-to-
search'' clause--so the argument goes--does so voluntarily and of his
own free will. That being the case, the consent to search is freely
given and is valid and enforceable.
Supporters of this provision point out that leases commonly include a
clause that permits the landlord to enter without advance permission in
the event of emergencies or for repairs. Supporters argue that the
``consent-to-search'' clause is really no different. Like the standard
``right of access'' clause, it is a voluntary reduction in a tenant's
privacy in the tenant's greater good.
Just as a tenant willingly permits access, for example, to
permit a fire from spreading or to prevent water damage from
a burst pipe, so a tenant might permit access to police to
prevent guns and crime from endangering his well-being in
other ways.
Supporters of this provision also point out that courts have upheld
similar ``consent-to-search'' clauses in the context of probationers
and parolees. These individuals must commonly agree, when they are
released from prison, to submit to warrantless searches by law
enforcement officials at any time, as part of their rehabilitation.
On the basis of these arguments, the supporters say, the Government
should be permitted to require limited ``consent-to-search'' clauses
from tenants who voluntarily move into public housing. The President's
proposal is carefully drawn to limit the intrusive nature of the
proposed searches, with constitutional objections in mind.
As the Attorney General wrote in her letter to the President
outlining these proposals:
As in the case of maintenance inspections, such firearms
inspections should be conducted on a routine basis, during
daylight hours, and should be no more intrusive than
absolutely necessary to determine whether weapons are present
in the tenant's unit.
The Attorney General also suggests that in some cases advance notice
of the search might be given, thus reducing any constitutional
objections. These careful limitations lend support to the supporters'
claims that the provision is constitutional.
In summary, the supporters of the measure argue that given the narrow
scope of the proposed consent clause, and by analogy to existing
``right of access'' clauses in leases and to ``consent to search''
provisions required of probationers and parolees, it is constitutional.
These arguments have great force, both constitutionally and
logically. They have even greater force when you consider the
atmosphere of real crisis that now pervades our public housing
projects. When tenants and tenants organizations together clamor to
take drastic measures--even forced reductions in their basic right to
be free from random police searches--we must pay careful attention.
the arguments against constitutionality
As strong as the arguments are in favor of the constitutionality of
the ``consent to search'' provision, the arguments against
constitutionality are also strong.
The constitutional arguments against the measure go as follows:
Leases for public housing are not contracts freely entered into by
equal parties. They are contracts, say the critics, imposed by the
State on persons who have no real alternative.
We all have to agree that people don't live in public housing because
they want to--they live there because they have to. The opponents of
constitutionality argue that to require our poorest and most
defenseless citizens to give up their right to be secure in the privacy
of their own homes, and to agree in advance to warrantless police
intrusions without probable cause of any wrongdoing, flies in the face
of the fourth amendment.
How, the critics ask, can we require these citizens to give up one of
their most fundamental rights just because they are too poor to live
anywhere but public housing?
For these reasons, the critics argue that any consent on the part of
tenants must be viewed as involuntary and as coerced, in the
constitutional sense.
Furthermore, the critics say, this is not a contract between private
parties. The Government--unlike a private landlord--may not impose
unconstitutional conditions on the use of public housing. Requiring
tenants to give up their constitutional right to be free from
warrantless searches is no different, the critics say, than requiring
them to give up their right to vote in exchange for the right to live
in public housing.
Next, the critics argue, it is completely improper to compare these
``consent-to-search'' clauses to ``right-of-access'' clauses in
standard leases. Giving a landlord the right to enter in an emergency
for the limited purpose of fixing a maintenance problem is a far cry
from permitting the police to enter at will, and to search throughout
the apartment for something as small as a gun.
Nor, the critics argue, is it proper to analogize these lease clauses
to ``consent-to-search'' conditions imposed on probationers and
parolees. Probationers and parolees are convicted felons; they are
granted conditional liberty as an alternative to full incarceration. A
tenant in a public housing project has not been convicted by a court
beyond a reasonable doubt. There is no justification, say the critics,
for imposing a fundamental restriction on his or her liberty, such as
exists with a probationer or parolee.
For all of these powerful and well-grounded reasons, the opponents of
constitutionality argue, the President's proposal to require tenants to
sign consent clauses cannot be supported under the Constitution.
Mr. President, let me just briefly remind everyone what the essence
of the constitutional argument is here.
It is reasonable, and the courts have concluded, that one can, in
fact, if they knowingly do it with their informed consent, give up an
otherwise available constitutional protection.
So if I say, ``Look, you can come in and search my house. You do not
need a search warrant,'' and I knowingly am freely consenting to that,
then, no problem.
So the real, central issue here is: What constitutes consent?
Although I think it is constitutional, I want to raise at least a red
flag. It is not beyond possibility that the Supreme Court or the
Federal courts of this Nation will, in fact, conclude that a lease for
public housing is not a contract freely entered into by equal partners.
They are contracts, say the critics, imposed by the State on a person
who has no real alternative. The Court, if it concludes that, will
conclude that this is an unconstitutional provision.
We all have to agree that people do not live in public housing
because they want to. They live in public housing because they have to.
Opponents of the constitutionality argue that to require our poorest
and most defenseless citizens to give up the right to be secure in the
privacy of their own home and to agree in advance to warrantless police
intrusion without probable cause of any wrongdoing flies in the face of
the fourth amendment.
Now, how, the critics ask, can we require these citizens to give up
one of the most fundamental rights just because they are too poor to
live anywhere else?
Now, there are countervailing arguments. The countervailing arguments
are strong. I think they are stronger. But they are close.
I want my colleagues to know there are court cases that have been
decided at the circuit court level that suggest that the Government
should be permitted to require limited consent to search clauses from
tenants who voluntarily move into public housing, and the President's
proposal, they argue, is carefully drawn to limit the intrusive nature
of the proposed searches.
The Attorney General has made a very cogent case for this.
The Presiding Officer is about to tell me the time has arrived.
The PRESIDING OFFICER. The time of 8:45 having arrived, under the
previous unanimous consent, the time for debate has expired.
Mr. BIDEN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The absence of a quorum having been suggested,
the clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. MITCHELL. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. Boxer). Without objection, it is so
ordered.
The majority leader.
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