[Congressional Record Volume 140, Number 57 (Wednesday, May 11, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 11, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                     CONGRESSIONAL GIFTS REFORM ACT

  The PRESIDING OFFICER. Under the previous order, the hour of 4:30 
p.m. having arrived, the Senate will now resume consideration of S. 
1935, which the clerk will report.
  The legislative clerk read as follows:

       A bill (S. 1935) to prohibit lobbyists and their clients 
     from providing to legislative branch officials certain gifts, 
     meals, entertainment, reimbursements, or loans and to place 
     limits on and require disclosure by lobbyists of certain 
     expenditures.

  The Senate resumed consideration of the bill.
       Pending:

       D'Amato amendment No. 1685, to express the sense of the 
     Senate that the conferees on H.R. 3355, Violent Crime and 
     Control Act, should reject the Racial Justice Act provisions.

  Mr. D'AMATO. I believe we have \1/2\ hour, equally divided.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. D'AMATO. Mr. President, I yield 2 minutes of my time to the 
Senator from Texas [Mr. Gramm].
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. GRAMM. Mr. President, I want to thank our dear colleague from New 
York for his leadership on this issue.
  I am sure there are some people who are going to try to make this out 
as a very complicated issue, but it is a very, very simple issue.
  If you take a look at the Statue of Justice, you will find that the 
Statue of Justice is a woman holding a scale of justice, but the woman 
is wearing a blindfold. The basic logic is that justice is aimed at 
looking only at the facts and giving an objective weighing of the facts 
so that every American will know that they are being judged on one 
thing, and that is their behavior relative to the law.
  If the American judicial system has been built on one principle, that 
principle is that people are judged not by the color of their skin, not 
by their ethnic origin, but based on what they do, based on their own 
conduct.
  We have before us now a bill that will turn that whole system of 
justice on its head, a bill that will strip away the blindfold and not 
only eliminate the system of impartiality, of which we have all been 
beneficiaries, but will, for the first time, mandate that ethnic origin 
and race be a major determinant in the setting of a sentence.
  I believe that whether people get the death penalty or not should be 
determined solely based on their conduct, whether they committed a 
terrible crime that justifies that their life be taken in punishment 
for committing that crime. It ought not to be determined based on who 
their parents are, based on the color of their skin, based on the 
ethnic group that they come from. That has always been the system of 
American justice and it ought to always be.
  The PRESIDING OFFICER. The Senator has spoken for 2 minutes.
  Mr. D'AMATO. Mr. President, I yield 5 minutes to the senior Senator 
from Utah [Mr. Hatch].
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I rise in support of the sense-of-the-
Senate resolution.
  The so-called Racial Justice Act has nothing to do with racial 
justice and everything to do with abolishing the death penalty. As I 
have explained in detailed floor statements over the past 2 weeks, the 
so-called Racial Justice Act would employ an unreliable and manipulable 
statistical quota to abolish the death penalty nationwide.
  That is why State attorneys general and district attorneys throughout 
the country vigorously oppose it. That is why this Senate, with 
bipartisan majorities, has repeatedly rejected it. That is why we must 
reject it again.
  Supporters of the so-called Racial Justice Act argue that the evils 
that this legislation would bring about are speculative. That is simply 
not true. We need only look at actual, historical cases to recognize 
the pernicious effects that this legislation would have.
  Take, for example, the case of Robert Alton Harris, who committed two 
brutal murders in 1978. Despite the fact that Harris confessed to the 
killings at least seven times, Harris managed to abuse the court system 
for over a decade until he was finally executed in 1992. Significantly, 
one of Harris' claims was based on an alleged statistical disparity in 
the imposition of the death sentence based on the race of the victim. 
Both of Harris' victims were white, and Harris himself was also white. 
Yet Harris sought to rely on alleged racial discrimination against 
minority victims. Based on the U.S. Supreme Court opinion in McCleskey 
versus Kemp, Harris' claim was denied.

  Had the so-called Racial Justice Act been law when Harris' claim was 
being considered, there is no doubt that he would have been deemed to 
have satisfied the flimsy statistical showing needed to establish a 
fictitious inference that racial discrimination played a role in his 
receiving the death penalty. Thus, we would have had the bizarre 
spectacle of a brutal white murderer invoking the rights of 
hypothetical black victims in order to avoid just punishment for his 
heinous crimes.
  Unfortunately, far from being unusual, this would be par for the 
course if the Racial Justice Act were to become law. Indeed, the 
heinous killer John Wayne Gacy, a white racist who was convicted of 33 
murders dating back two decades and who was executed in Illinois 
Tuesday morning, would undoubtedly have obtained relief and yet further 
delay if the so-called Racial Justice Act had previously been in 
effect.
  The tremendous--indeed, prohibitive--costs that the so-called Racial 
Justice Act would impose on the States are illustrated by another 
California case, involving a convicted murderer named Earl Lloyd 
Jackson. In 1984, the California Supreme Court held that Jackson was 
entitled to an evidentiary hearing on his statistical claim that the 
death penalty in California was being discriminatorily imposed.

  Jackson then requested a veritable mountain of statewide homicide 
data, just as any murderer would do under the so-called Racial Justice 
Act. The California attorney general's office and the Los Angeles 
County district attorney's office were forced to create a special task 
force to marshall a response to Jackson's claims.
  Over the course of 3 years, State taxpayers expended more than $1 
million to prepare for the evidentiary hearing. Ultimately, the hearing 
was canceled because of the Supreme Court's ruling in McCleskey. But if 
the so-called Racial Justice Act becomes law, States will either be 
forced to divert their scarce law enforcement resources into fighting a 
battle of statistics, or they will have no choice but to abandon the 
death penalty.
  As these examples illustrate, the Racial Justice Act is nothing more 
than a Death Penalty Abolition Act. For this reason, I urge my 
colleagues to support the sense-of-the-Senate resolution.
  I also ask unanimous consent that resolutions, statements, and 
letters from law enforcement officials and victims groups be printed in 
the Record, along with a letter from 35 Republican Senators to 
President Clinton.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                      Washington, DC, May 3, 1994.
     The President,
     The White House,
     Washington, DC.
       Dear Mr. President: We, the undersigned Senators, 
     respectfully urge you to state publicly your opposition to 
     Title IX of the House-passed crime bill, which would impose 
     on the death penalty an unreliable and manipulable 
     statistical quota and which would effectively lead to its 
     abolition. Title IX, which is often mislabeled by its 
     supporters as the Racial Justice Act, has nothing to do with 
     racial justice and everything to do with abolishing the death 
     penalty. That is why its provisions have been strongly 
     opposed by the National Association of Attorneys General, the 
     National District Attorneys Association, and other law 
     enforcement and victims groups.
       As your own public support for the death penalty 
     recognizes, the death penalty plays an important role in any 
     comprehensive approach to the crime problems that plague our 
     nation. We urge you to work actively to oppose those who 
     would undermine the death penalty.
           Sincerely,
         Bob Dole; Strom Thurmond; Chuck Grassley; Don Nickles; 
           Orrin Hatch; Al Simpson; Phil Gramm; Paul Coverdell; 
           Connie Mack; Al D'Amato; Lauch Faircloth; Richard G. 
           Lugar; Mitch McConnell; Kay Bailey Hutchison; Nancy 
           Landon Kassebaum; Arlen Specter; Kit Bond; Dirk 
           Kempthorne; Judd Gregg; John McCain; Slade Gorton; Hank 
           Brown; R.F. Bennett; Jesse Helms; Malcolm Wallop; Larry 
           Pressler; Frank H. Murkowski; Bob Smith; Pete V. 
           Domenici; Conrad Burns; Larry E. Craig; Thad Cochran; 
           Bill Roth; Ted Stevens.
                                  ____

                                                      May 6, 1994.
       Dear House-Senate Conferees: On April 21, 1994, the U.S. 
     House of Representatives passed the omnibus crime bill, H.R. 
     4092. One feature of this legislation (included in Title IX) 
     is a measure that would allow a capital defendant to make a 
     statistical showing from unrelated cases as the basis for 
     appellate or collateral relief. The Senate omnibus crime 
     bill, now included in H.R. 3355, adopted in November 1993, 
     contains no such legislation.
       We are a bipartisan group of chief law enforcement officers 
     of our respective States. We write in strong opposition to 
     any omnibus crime bill reported by the House-Senate 
     Conference Committee which may include any version of the so-
     called Racially Discriminatory Capital Sentencing Act, or any 
     other statistical showings legislation which overturns the 
     U.S. Supreme Court's holding in McCleskey v. Kemp, 481 U.S. 
     279 (1987). Such statistical showings legislation seriously 
     undermines enforcement of the death penalty.
       In McCleskey, the U.S. Supreme Court rejected a claim which 
     would allow capital defendants to make a statistical showing 
     of potential race discrimination from unrelated cases as a 
     basis for collateral relief. The Court correctly held that a 
     defendant who contests his capital sentence on the basis of 
     racial discrimination is required to prove that the decision 
     makers in his or her own case acted with a discriminatory 
     purpose.
       We are strongly opposed to any race bias in our criminal 
     justice system, and believe that all criminal penalties 
     should be administered without regard to the race or color of 
     the defendant or the victim. Instead of protecting against 
     race bias, the Racially Discriminatory Capital Sentencing Act 
     would impose a quota system on the imposition of the death 
     penalty. This is unacceptable.
       Below is the relevant language of the March 21, 1994 
     resolution of the National Association of Attorneys General 
     (NAAG) which sets forth our opposition to the statistical 
     showings legislation now found in Title IX of H.R. 4092:
       Whereas, the U.S. House Judiciary Committee recently 
     reported out [and the U.S. House of Representatives has now 
     adopted]: . . . (2) a measure that would allow a capital 
     defendant to make a statistical showing from unrelated cases 
     as the basis for appellate or collateral relief;
       Now, therefore, be it resolved that the National 
     Association of Attorneys General:
       (1) strongly supports all efforts to strike . . . from an 
     omnibus anticrime bill: . . . any statistical showings 
     legislation; 
       (2) opposes . . . R. 4092, Title IX], or any measure that 
     would allow a capital defendant to make a statistical showing 
     from unrelated cases as the basis for appellate or collateral 
     relief; . . . (Italics added.)
       As the chief law enforcement officers of our respective 
     States, we are profoundly disturbed that this legislation, in 
     its current form, or any version thereof, will (1) 
     essentially stop the prosecution and enforcement of capital 
     cases; (2) allow current death row inmates to reopen already 
     adjudicated claims or bring new claims based upon a 
     statistical showing from unrelated cases; and (3) jeopardize 
     the enactment of other measures included in the omnibus crime 
     bill.
       This open-ended legislation permits the capital defendant 
     to establish an inference that race was a factor in seeking 
     or imposing the death penalty in his or her own case based on 
     the same decisions made in other murder cases. Following such 
     an inference, under the bill, ``the death sentence may not be 
     carried out unless the government rebuts the inference.'' 
     However, review of the bill language shows that it would be 
     extremely difficult (if not impossible, and only at great 
     time and cost to the State) to rebut this inference, as the 
     bill imposes severe constraints on the ability of the 
     government to rebut the statistical case. For this reason, 
     the legislation essentially abolishes the death penalty.
       Specifically, the bill provides ``[u]nless [the government] 
     can show that the death penalty was sought in all cases 
     fitting the statutory criteria for imposition of the death 
     penalty, the government cannot rely on mere assertions that 
     it did not intend to discriminate or that the cases in which 
     death was imposed fit the statutory criteria for imposition 
     of the death penalty.'' This means that in order to rebut the 
     inference that racial factors were involved in a particular 
     murder case, the government must review all charging 
     decisions of capital eligible cases, whether or not charged 
     as a capital crime, all decisions to seek or not seek the 
     death penalty, and all decisions of juries to impose or not 
     impose the death penalty. This virtually-impossible review 
     would be necessary under the bill in order to demonstrate 
     that these decisions were not racially motivated.
       The initial ``inference'' of racial discrimination under 
     the bill, however, fails to take account of the fact that 
     each murder case has unique factual circumstances, different 
     strength of evidence, and different mitigating and 
     aggravating factors relating to each defendant, which may 
     account for the ultimate decisions to seek or not seek, or to 
     impose or not impose, the death sentence in those particular 
     cases. Statistics from unrelated cases should never be used 
     to determine the outcome of any criminal case, which should 
     instead be based solely on whether the charged offense was 
     committed by the defendant. The difficulty in rebutting an 
     ``inference'' of racial discrimination based on alleged 
     statistical disparities from multiple unrelated cases is so 
     profound and so potentially expensive as to essentially bring 
     the prosecution of capital cases to a halt.
       Therefore, consistent with the NAAG resolution, we support 
     any efforts to eliminate the Racially Discriminatory Capital 
     Sentencing Act from the omnibus crime bill. This includes 
     instructions in the House or Senate to the conferees to take 
     whatever measures are necessary to ensure that no crime bill 
     is made law with these provisions in it.
       Further, we strongly believe that statistical showings 
     legislation, by whatever name it is referred to, has proven 
     to be a contentious issue in prior Congresses and in fact was 
     in large part responsible for the deadlock on the omnibus 
     crime bill in past Congresses. The need to address violent 
     crime is too urgent to delay deliberation on other important 
     measures to combat crime. If Congress is serious about 
     enacting an omnibus crime measure, it must strike the so-
     called Racially Discriminatory Capital Sentencing Act, which 
     will only detract from the ultimate passage of the crime 
     bill.
           Sincerely,
         Larry Echohawk, Attorney General of Idaho; Daniel E. 
           Lungren, Attorney General of California; James S. 
           Gilmore, Attorney General of Virginia; Frankie Sue Del 
           Papa, Attorney General of Nevada; Joseph P. Mazurek, 
           Attorney General of Montana; Robert A. Butterworth, 
           Attorney General of Florida; Dan Morales, Attorney 
           General of Texas; Ernest D. Preate, Jr., Attorney 
           General of Pennsylvania; Grant Woods, Attorney General 
           of Arizona; Jan Graham, Attorney General of Utah; 
           Deborah T. Poritz; Attorney General of New Jersey; 
           Joseph B. Meyer, Attorney General of Wyoming; Mike 
           Moore, Attorney General of Mississippi; Chris Gorman, 
           Attorney General of Kentucky; Jimmy Evans, Attorney 
           General of Alabama; Don Stenberg, Attorney General of 
           Nebraska; Jeffrey R. Howard, Attorney General of New 
           Hampshire; Robert T. Stephan, Attorney General of 
           Kansas; Gale A. Norton, Attorney General of Colorado; 
           Jeffrey B. Pine, Attorney General of Rhode Island; 
           Susan B. Loving, Attorney General of Oklahoma; 
           Malaetasi Togafau, Attorney General of American Samoa; 
           Charles M. Oberly III, Attorney General of Delaware; 
           Mark W. Barnett, Attorney General of South Dakota; John 
           M. Bailey, Chief State's Attorney of Connecticut; Tom 
           Udall, Attorney General of New Mexico T. Travis 
           Medlock, Attorney General of South Carolina; Michael J. 
           Bowers, Attorney General of Georgia; Richard P. Ieyoub, 
           Attorney General of Louisiana; Jeremiah W. (Jay) Nixon, 
           Attorney General of Missouri.
                                  ____

                                                   April 12, 1994.
     Hon. Jack Brooks,
     Chairman, House Judiciary Committee, Rayburn House Office 
         Building, Washington, DC.

     Hon. Hamilton Fish, Jr.,
     Ranking Minority Member, House Judiciary Committee, Rayburn 
         House Office Building, Washington, DC.
       Dear Congressmen: We are a bipartisan group of chief law 
     enforcement officers of our respective States who are 
     responsible for overseeing federal capital and non-capital 
     habeas litigation and for enforcing state criminal law in 
     death penalty and non-death penalty jurisdictions.
       We wish to express our views on the need to strike habeas 
     corpus as part of the House omnibus crime bill, and on some 
     of the amendments which have been offered. Specifically, we 
     write in strong support of the Hyde Amendment (to strike the 
     habeas provisions contained in the crime bill, H.R. 4092, 
     Title VIII) and strong support for the McCollum Amendment (to 
     substitute the Equal Justice Act for legislation in Title IX 
     of H.R. 4092 which provides relief based on mere statistical 
     showings from unrelated cases). This is consistent with the 
     recently adopted Resolution of the National Association of 
     Attorneys General (NAAG), a copy of which is attached.


 support the hyde amendment to strike title viii and oppose any other 
   habeas amendments to title viii (including the derrick amendment)

       Several reasons compel our strong support for the Hyde 
     Amendment to strike the habeas provisions from the omnibus 
     crime bill.
       First, the Hyde Amendment is consistent with a similar 
     bipartisan amendment, which was offered by Senator Dianne 
     Feinstein and Senator Orrin Hatch, and which was unanimously 
     agreed to last year in the Senate.
       Second, we believe that the habeas provisions contained in 
     Title VIII of H.R. 4902 may once again hold up consideration 
     and enactment of other important crime reform issues. Habeas 
     corpus reform has proven to be a contentious issue in prior 
     Congresses and in fact was in large part responsible for the 
     deadlock on the omnibus crime bill in the last Congress. The 
     need to address violent crime is too urgent to delay 
     deliberation on other measures to combat crime. Similarly, we 
     believe there is a danger that the other provisions of the 
     crime bill may be viewed as so important that habeas 
     provisions will be swept into the omnibus package without 
     sufficient review and analysis of their long term impact and 
     legal significance, as discussed below.
       Third, there are other precedents for severing certain 
     specific crime reform issues from omnibus crime bills. They 
     include, for example, the Brady bill (five-day waiting period 
     for handgun purchases).
       We believe stronger reasons support the severance of the 
     habeas provisions from the crime bill. Such a severance would 
     allow the provisions of any habeas reform bill to be 
     considered on their own merits. Habeas corpus, while an 
     important part of our criminal justice system, is a 
     specialized and arcane area of the law. Any reforms adopted 
     by the Congress in this area will have tremendous 
     ramifications on the operations of the criminal justice 
     system, law enforcement, and victims of crime, and therefore 
     warrant independent consideration.
       We have previously expressed a commitment to obtaining 
     meaningful reform of the federal habeas corpus process, along 
     the lines of the Powell Committee Report. This Report 
     endorses the so-called ``one bite at the habeas apply'' 
     approach, enabling state prisoners one fair and complete 
     round of habeas litigation in federal court. We need 
     effective reforms to curb unnecessary delay and repetitious 
     litigation which has become all too common under the current 
     federal habeas corpus process. Such reforms should, however, 
     be considered in separate legislation.
       Fourth, the legislation reported out by the House Judiciary 
     Committee, and now included in Title VIII of H.R. 4092, 
     would, according to the recent NAAG Resolution, ``adversely 
     affect all capital and non-capital habeas litigation in the 
     States and effectively stop all state capital case 
     prosecutions and executions under valid state capital 
     sentencing schemes.'' The legislation would overturn or 
     modify numerous key U.S. Supreme Court precedents which 
     promote finality in our criminal justice process. This 
     includes the Teague doctrine, which is essential for capital 
     and non-capital cases. Instead of streamlining the process, 
     this legislation will provide convicted criminals with 
     more opportunities to challenge their conviction and 
     sentence than under current law. The legislation also 
     fails to respect the state trial as the ``main event'' in 
     our criminal justice process, and is inconsistent with 
     established comity doctrines respecting the role of state 
     court proceedings in the enforcement of state criminal 
     law.
       Fifth, the last-minute efforts of some to offer new habeas 
     amendments to the crime bill on the House floor deprive 
     members of Congress and the public from a full and fair 
     opportunity to study and comment on the legislation. In 
     congressional committee hearings or mark-up concerning 
     specific bill language, law enforcement and victim rights 
     groups normally are given a chance to apprise the Congress of 
     their views concerning the impact of new language or 
     standards. When amendments are patched together at the last 
     minute, this opportunity is denied.
       These concerns are especially true for habeas corpus 
     reform. New proposals, which have not been subject to public 
     review, may also have drastic ramifications on the operations 
     and costs of our departments and the criminal justice system 
     and have serious consequences on finality, the enforcement of 
     state laws, and victims. Any habeas reforms included in the 
     crime bill would constitute the first major change to the 
     federal habeas statute since 1966. Because of the tremendous 
     changes to current law which would result under any last-
     minute amendments, we believe Congress should proceed 
     carefully and deliberately before considering any new habeas 
     reform proposals.
       For example, over the last several years, the U.S. Supreme 
     Court has rendered many opinions which have clarified the 
     role of federal court review of state court judgments; 
     promoted the interest in finality and closure for surviving 
     victims; and respected the interests of states and the 
     enforcement of state laws in our federalism system. We fear 
     that if Congress does not fully and fairly consider the 
     import of proposed new language, these and other precedents 
     will be cast aside and more delay and litigation will result. 
     In addition, concerns have been noted over the impact of new 
     amendments on the deterrent objective of the death penalty. 
     All of these consequences should be carefully studied before 
     Congress considers Amendments offered on the floor of the 
     House for the first time. We believe the public would best be 
     served by complete congressional hearings before any new 
     Amendments are debated in the House.
       We understand that a new habeas amendment is also expected 
     to be offered by Congressman Butler Derrick of South 
     Carolina. Preliminary review shows that this amendment is 
     also worse than current law and would overturn numerous key 
     U.S. Supreme Court cases governing habeas corpus. For these 
     reasons, we therefore oppose the Derrick Amendment or any 
     other amendments which may be offered at the last minute to 
     Title VIII of H.R. 4092. Any habeas reform measure should be 
     considered in a separate bill, after the public has had a 
     full and fair opportunity to comment on the proposed 
     legislation.
       In sum, while we strongly support habeas corpus reform, we 
     believe it should be accomplished in a deliberative, studied 
     and independent manner. For these reasons, we wholeheartedly 
     support the Hyde Amendment to strike the habeas provisions 
     (Title VIII) from H.R. 4092.


 Support the McCollum Amendment (and Any Other Efforts to Strike Title 
IX); Oppose All Other Amendments to Title IX (Including the Edwards or 
                         Washington Amendments)

       With regard to Title IX of H.R. 4092, concerning racially 
     discriminatory capital sentencing, we strongly support the 
     McCollum Amendment, and any other efforts to strike Title IX 
     of H.R. 4092, as discussion below. The McCollum Amendment, 
     which passed the House in the last Congress, would (1) strike 
     Title IX (which provides relief based on mere statistical 
     showings from unrelated cases), and (2) substitute the Equal 
     Justice Act.
       Significantly, the McCollum Amendment would apply to all 
     penalties, not merely capital punishment, and would codify 
     existing case law protections against racial bias. The Equal 
     Justice Act expressly prohibits racially discriminatory 
     policies. The legislation states that any penalty ``shall be 
     administered . . . without regard to the race or color of the 
     defendant or the victim'' and prohibits ``any racial quota or 
     statistical test'' for any penalties. Finally, the Equal 
     Justice Act provides safeguards during the trail, not after-
     the-fact like statistical showings legislation.
       As the recent NAAG Resolution noted, NAAG opposes ``any 
     measure that would allow a capital defendant to make a 
     statistical showing from unrelated cases as the basis for 
     appellate or collateral relief.'' Such statistical showings 
     legislation seriously undermines enforcement of the death 
     penalty.
       In McCleskey v. Kemp, the U.S. Supreme Court rejected a 
     claim which would allow capital defendants to make a 
     statistical showing of potential race discrimination from 
     unrelated cases as a basis for collateral relief. The Court 
     correctly held that a defendant who contests his capital 
     sentence on the basis of racial discrimination is required to 
     prove that the decision makers in his or her own case acted 
     with a discriminatory purpose.
       For these reasons, we strongly oppose title IX of H.R. 
     4092, or any amendment (including the Edwards and Washington 
     Amendments) which would overturn McCleskey v. Kemp or provide 
     appellate or collateral relief on mere statistical showings 
     from unrelated cases.


                               conclusion

       In sum, we strongly urge the U.S. House of Representatives 
     to: (1) support the Hyde Amendment and oppose all other 
     amendments which may be offered on Title VIII; and (2) 
     support the McCollum Amendment and oppose Title IX or any 
     other amendments which may be offered on title IX. We oppose 
     any amendments or legislation which would weaken current law 
     or provide convicted individuals with greater opportunities 
     to challenge their conviction or sentence. We remain 
     available to work with you to accomplish meaningful federal 
     habeas corpus reform through separate legislation.
           Sincerely,
         Larry Echohawk, Attorney General of Idaho; Frankie Sue 
           Del Papa, Attorney General of Nevada; Dan Morales, 
           Attorney General of Texas; Daniel E. Lungren, Attorney 
           General of California; Joseph P. Mazurek, Attorney 
           General of Montana; Robert A. Butterworth, Attorney 
           General of Florida; Grant Woods, Attorney General of 
           Arizona; Mark Barnett, Attorney General of South 
           Dakota; Michael F. Easley, Attorney General of North 
           Carolina; Bruce Botelho, Attorney General of Alaska; 
           James S. Gilmore, Attorney General of Virginia; Ernest 
           D. Preate, Jr., Attorney General of Pennsylvania; Heidi 
           Heitkamp, Attorney General of North Dakota; Jeff 
           Amestoy, Attorney General of Vermont; Jimmy Evans, 
           Attorney General of Alabama; Gale A. Norton, Attorney 
           General of Colorado; Robert A. Marks, Attorney General 
           of Hawaii; Deborah T. Poritz, Attorney General of New 
           Jersey; Joseph B. Meyer, Attorney General of Wyoming; 
           Jan Graham, Attorney General of Utah; Tom Udall, 
           Attorney General of New Mexico; Jeffrey R. Howard, 
           Attorney General of New Hampshire; Don Stenberg, 
           Attorney General of Nebraska; Jeffrey B. Pine, Attorney 
           General of Rhode Island; T. Travis Medlock, Attorney 
           General of South Carolina; Robert T. Stephan, Attorney 
           General of Kansas; Pamela Carter, Attorney General of 
           Indiana; John M. Bailey, Chief State's Attorney General 
           of Connecticut; Elizabeth Barrett-Anderson, Attorney 
           General of Guam; Susan B. Loving, Attorney General of 
           Oklahoma; Jeremiah W. (Jay) Nixon, Attorney General of 
           Missouri; Frank J. Kelley, Attorney General of 
           Michigan.
                                  ____


  California District Attorneys Association--Adopted April 29, 1994, 
                   Concerning the Racial Justice Act

       Whereas, the California District Attorneys Association is 
     an organization composed of the elected District Attorneys of 
     California's fifty-eight counties and 3,000 deputy district 
     attorneys and city prosecutors;
       Whereas, on April 21, 1994, the U.S. House of 
     Representatives adopted the omnibus crime bill, H.R. 4092, 
     which included in Title IX legislation, referred to, and 
     known as, the Racial Justice Act (or the Racially 
     Discriminatory Capital Sentencing Act);
       Whereas, on April 20, 1994, the U.S. House of 
     Representatives narrowly defeated the McCollum Amendment to 
     strike the Racial Justice Act from the House crime bill and 
     substitute in its place the Equal Justice Act. [The vote was 
     an effective 212 and 212 tie, after the votes of the five 
     Delegate members were excluded under recent House Rules.];
       Whereas, the Racial Justice Act would, first, permit a 
     capital case defendant to make a statistical showing that 
     death sentences are being imposed or administered in a 
     disproportionate manner upon (1) persons of one race or (2) 
     as punishment for capital offenses against persons of one 
     race, and, second, require the prosecutor to rebut this 
     statistical showing ``by a preponderance of the evidence'';
       Whereas, in the 102d Congress, on June 20, 1991, the U.S. 
     Senate voted to strike a similar measure entitled the Racial 
     Justice Act out of the omnibus crime measure by a bipartisan 
     vote of 55 to 41 (this was the third successive Congress in 
     which the U.S. Senate rejected the Racial Justice Act), and 
     on October 22, 1991, the U.S. House of Representatives voted 
     to strike a similar measure by a bipartisan voted of 223 to 
     191;
       Whereas, the U.S. Supreme Court rejected a discrimination 
     claim founded solely upon statistics, in McCleskey v. Kemp, 
     481 U.S. 279 (1987).
       Now, therefore, be it resolved that in light of the urgency 
     and importance of this matter, all 58 California District 
     Attorneys, having been polled, unanimously:
       (1) Oppose any version of the Racial Justice Act, for the 
     following reasons:
       (a) The Racial Justice Act would result in the effective 
     abolition of capital punishment.
       This would result because of the inherent evidentiary 
     difficulties and inevitable vast expenditures of time and 
     money in litigation in every post-conviction capital case, to 
     prove by at least a preponderance of the evidence a negative, 
     to wit, that race was not the basis for any of the 
     prosecutor's, jury's, or judge's decisions. [The Racial 
     Justice Act contains a virtually impossible rebuttal burden: 
     ``Unless [the prosecutor or State] can show that the death 
     penalty was sought in all cases fitting the statutory 
     criteria for imposition of the death penalty, the government 
     cannot rely on mere assertions that it did not intend to 
     discriminate or that the cases in which death was imposed fit 
     the statutory criteria for imposition of the death penalty.];
       (b) Moreover, as to adjudicated cases, the retroactive 
     application of the Racial Justice Act would permit convicted 
     capital defendants to reopen their cases by presenting 
     discrimination claims (regardless of whether such claims had 
     previously been rejected). In California, there are currently 
     376 individuals on death row. The retroactive provision in 
     the Racial Justice Act as passed by the House would 
     potentially affect these cases as well as others around the 
     nation;
       (c) The statistical premise of any version of the Racial 
     Justice Act is unsound, for several reasons, including:
       (i) It disregards the fundamental precept of our criminal 
     justice system that an individual is tried on the facts of 
     his or her case, not on the facts or circumstances or 
     statistics from unrelated cases;
       (ii) It overturns the U.S. Supreme Court's rejection of 
     such a statistical premise, where the Court noted with regard 
     to the Baldus study: ``Even Professor Baldus does not contend 
     that his statistics prove that race enters into any capital 
     sentencing decisions or that race was a factor in McCleskey's 
     particular case. Statistics at most may show only a 
     likelihood that a particular factor entered into some 
     decisions. McCleskey v. Kemp, 481 U.S. 279, 308 (1987) 
     (emphasis in original); and
       (iii) Its statistical showing fails to establish that the 
     imposition of capital punishment in a particular case is 
     predicated on any bias; and
       (d) The Racial Justice Act would permit the ``second-
     guessing'' of capital case decisions by prosecutors, defense 
     counsel, judges and juries based upon the information and 
     statistics required to be maintained under the Act;
       (e) The Racial Justice Act eliminates the traditional 
     deference to state-court findings of fact, 28 U.S.C. 
     Sec. 2255(d); Sumner v. Mata, 449 U.S. 539 (1981), if the 
     state fails to collect or maintain adequate records required 
     under the Act, and causes the individual conviction, though 
     lawfully and justifiably imposed, to be unduly placed in 
     jeopardy ;
       (f) The potential cost of compliance on states and local 
     entities would be exorbitant, as demonstrated by one 
     California case (In re Earl Jackson) which took three years 
     to prepare for an evidentiary hearing and cost more than 
     $1,000,000. The evidentiary hearing was never held, after the 
     McCleskey v. Kemp ruling was rendered;
       (g) The Racial Justice Act encourages a quota system for 
     capital punishment cases by in effect introducing ``race 
     consciousness'' into capital case decisions.
       (2) Opposes any legislation which would undermine or 
     otherwise modify the holding in McCleskey v. Kemp, 481 U.S. 
     279 (1987);
       (3) Calls upon the U.S. House of Representatives and U.S. 
     Senate to reject any version of the Racial Justice Act as 
     part of any package of federal habeas corpus reform or any 
     crime bill;
       (4) Opposes any legislation, including the omnibus crime 
     bill to be reported by the conference committee, which 
     includes any version of the Racial Justice Act. Any 
     meaningful provisions contained in the crime bill are 
     completely undermined by inclusion of the Racial Justice Act, 
     which is antithetical to fundamental notions under our 
     criminal justice system. If the omnibus crime bill contains 
     any version of the Racial Justice Act, we recommend it be 
     voted down until this legislation is removed.
       Be it further resolved by the California District Attorneys 
     Association that its Executive Director shall transmit a copy 
     of this resolution to the U.S. Senators and Representatives 
     in the California delegation and to members of the Senate and 
     House Committees on the Judiciary.
                                  ____


Arizona Prosecuting Attorneys' Advisory Council--Resolution Concerning 
              the Racial Justice Act, Adopted May 3, 1994

       Whereas, the Arizona Prosecuting Attorneys' Advisory 
     Council is composed of the Arizona Attorney General, all 
     fifteen elected County Attorneys, four City Prosecutors, the 
     Dean of one of Arizona's law schools and the Chief Justice of 
     the Arizona Supreme Court or his designee;
       Whereas, on April 21, 1994, the U.S. House of 
     Representatives adopted the omnibus crime bill, H.R. 4092, 
     which included in Title IX legislation, referred to, and 
     known as, the Racial Justice Act (or the Racially 
     Discriminatory Capital Sentencing Act);
       Whereas, on April 20, 1994, the U.S. House of 
     Representatives narrowly defeated the McCollum amendment to 
     strike the Racial Justice Act from the House crime bill and 
     substitute in its place the Equal Justice Act. [The vote was 
     an effective 212 to 212 tie, after the votes of the five 
     Delegate members were excluded under recent House Rules.];
       Whereas, the Racial Justice Act would, first, permit a 
     capital case defendant to make a statistical showing that 
     death sentences are being imposed or administered in a 
     disproportionate manner upon (1) persons of one race or (2) 
     as punishment for capital offenses against persons of one 
     race, and, second, require the prosecutor to rebut this 
     statistical showing ``by a preponderance of the evidence'';
       Whereas, in the 102d Congress, on June 20, 1991, the US. 
     Senate voted to strike a similar measure entitled the Racial 
     Justice Act out of the omnibus crime measure by a bipartisan 
     vote of 55 to 41 (this was the third successive Congress in 
     which the U.S. Senate rejected the Racial Justice Act), and 
     on October 22, 1991, the U.S. House of Representatives voted 
     to strike a similar measure by a bipartisan vote of 223 to 
     191;
       Whereas, the U.S. Supreme Court rejected a discrimination 
     claim founded solely upon statistics, in McCleskey v. Kemp, 
     481 U.S. 279 (1987).
       Now, therefore, having polled the members of the Arizona 
     Prosecuting Attorneys' advisory council, be it resolved that 
     the council:
       (1) Opposes any version of the Racial Justice Act, for the 
     following reasons:
       (a) The Racial Justice Act would result in the effective 
     abolition of capital punishment.
       This would result because of the inherent evidentiary 
     difficulties and inevitable vast expenditures of time and 
     money in litigation in every post-conviction capital case, to 
     prove by at least a preponderance of the evidence a negative, 
     to wit, that race was not the basis for any of the 
     prosecutor's, jury's, or judge's decisions. [The Racial 
     Justice Act contains a virtually impossible rebuttal burden: 
     ``Unless [the prosecutor or State] can show that the death 
     penalty was sought in all cases fitting the statutory 
     criteria for imposition of the death penalty, the government 
     cannot rely on mere assertions that it did not intend to 
     discriminate or that the cases in which death was imposed fit 
     the statutory criteria for imposition of the death 
     penalty.''];
       (b) Moreover, as to adjudicated cases, the retroactive 
     application of the Racial Justice Act would permit convicted 
     capital defendants to reopen their cases by presenting 
     discrimination claims (regardless of whether such claims had 
     previously been rejected). In Arizona, there are currently 
     121 individuals on death row. The retroactive provision in 
     the Racial Justice Act as passed by the House would 
     potentially affect these cases as well as others around the 
     nation;
       (c) The statistical premise of any version of the Racial 
     Justice Act is unsound, for several reasons, including;
       (i) It disregards the fundamental precept of our criminal 
     justice system that an individual is tried on the facts of 
     his or her case, not on the facts or circumstances or 
     statistics from unrelated cases;
       (ii) It overturns the U.S. Supreme Court's rejection of 
     such a statistical premise, where the Court noted with regard 
     to the Baldus study: ``Even Professor Baldus does not contend 
     that this statistics prove that race enters into any capital 
     sentencing decisions or that race was a factor in McCleskey's 
     particular case. Statistics at most may show only a 
     likelihood that a particular factor entered into some 
     decisions.'' McCleskey v. Kemp, 481 U.S. 279, 308 (1987) 
     (emphasis in original); and
       (iii) Its statistical showing fails to establish that the 
     imposition of capital punishment in a particular case is 
     predicated on any bias; and
       (d) The Racial Justice Act would permit the ``second-
     guessing'' of capital case decisions by prosecutors, defense 
     counsel, judges and juries based upon the information and 
     statistics required to be maintained under the Act;
       (e) The Racial Justice Act eliminates the traditional 
     deference to state-court findings of fact, 28 U.S.C. 
     Sec. 2254(d); Summer v. Mata, 449 U.S. 539 (1981), if the 
     state fails to collect or maintain adequate records required 
     under the Act, and causes the individual conviction, though 
     lawfully and justifiably imposed, to be unduly placed in 
     jeopardy;
       (f) The potential cost of compliance on states and local 
     entities would be exorbitant, as demonstrated by one 
     California case (In re Earl Jackson) which took three years 
     to prepare for an evidentiary hearing and cost more than 
     $1,000,000. The evidentiary hearing was never held, after the 
     McCleskey v. Kemp ruling was rendered;
       (g) The Racial Justice Act encourages a quota system for 
     capital punishment cases by in effect introducing ``race 
     consciousness'' into capital case decisions.
       (2) Opposes any legislation which undermine or otherwise 
     modify the holding in McCleskey v. Kemp, 481 U.S. 279 (1987);
       (3) Calls upon the U.S. House of Representatives and U.S. 
     Senate to reject any version of the Racial Justice Act as 
     part of any package of federal habeas corpus reform or any 
     crime bill;
       (4) Opposes any legislation, including the omnibus crime 
     bill to be reported by the conference committee, which 
     includes any version of the Racial Justice Act. Any 
     meaningful provisions contained in the crime bill are 
     completely undermined by inclusion of the Racial Justice Act, 
     which is antithetical to fundamental notions under our 
     criminal justice system. If the omnibus crime bill contains 
     any version of the Racial Justice Act, we recommend it be 
     voted down until this legislation is removed.
       Be it further resolved by the Arizona Prosecuting 
     Attorneys' Advisory Council that its Acting Executive 
     Director shall transmit a copy of this resolution to the U.S. 
     Senators and Representatives in the Arizona delegation and to 
     members of the Senate and House Committees on the Judiciary.
                                  ____


 Washington Association of Prosecuting Attorneys--Adopted May 2, 1994, 
                   Concerning the Racial Justice Act

       Whereas, the Washington Association of Prosecuting 
     Attorneys is an organization composed of the elected 
     Prosecuting Attorneys of the Washington's thirty-nine 
     counties and their deputy prosecuting attorneys;
       Whereas, on April 21, 1994, the U.S. House of 
     Representatives adopted the omnibus crime bill, H.R. 4092, 
     which included in Title IX legislation, referred to, and 
     known as, the Racial Justice Act (or the Racially 
     Discriminatory Capital Sentencing Act);
       Whereas, on April 20, 1994, the U.S. House of 
     Representatives narrowly defeated the McCollum Amendment to 
     strike the Racial Justice Act from the House crime bill and 
     substitute in its place the Equal Justice Act. [The vote was 
     an effective 212 to 212 tie, after the votes of the five 
     Delegate members were excluded under recent House Rules.];
       Whereas, the Racial Justice Act would, first, permit a 
     capital case defendant to make statistical showing that death 
     sentences are being imposed or administered in a 
     disproportionate manner upon (1) persons of one race or (2) 
     as punishment for capital offenses against persons of one 
     race, and, second, require the prosecutor to rebut this 
     statistical showing ``by a preponderance of the evidence'';
       Whereas, in the 102d Congress, on June 20, 1991, the U.S. 
     Senate voted to strike a similar measure entitled the Racial 
     Justice Act out of the omnibus crime measure by a bipartisan 
     vote of 55 to 41 (this was the third successive Congress in 
     which the U.S. Senate rejected the Racial Justice Act), and 
     on October 22, 1991, the U.S. House of Representatives voted 
     to strike a similar measure by a bipartisan vote of 223 to 
     191;
       Whereas, the U.S. Supreme Court rejected a discrimination 
     claim founded solely upon statistics, in McCleskey v. Kemp, 
     481 U.S. 279 (1987).
       Now, therefore, be it resolved that in light of the urgency 
     and importance of this matter, the Washington Association of 
     Prosecuting Attorneys:
       (1) Oppose any version of the Racial Justice Act, for the 
     following reasons:
       (a) The Racial Justice Act would result in the effective 
     abolition of capital punishment.
       This would result because of the inherent evidentiary 
     difficulties and inevitable vast expenditures of time and 
     money in litigation in every post-conviction capital case, to 
     prove by at least a preponderance of the evidence a negative, 
     to wit, that race was not the basis for any of the 
     prosecutor's, jury's, or judge's decisions. [The Racial 
     Justice Act contains a virtually impossible rebuttal burden: 
     ``Unless [the prosecutor or State] can show that the death 
     penalty was sought in all cases fitting the statutory 
     criteria for imposition of the death penalty, the government 
     cannot rely on mere assertions that it did not intend to 
     discriminate or that the cases in which death was imposed fit 
     the statutory criteria for imposition of the death penalty.];
       (b) Moreover, as to adjudicated cases, the retroactive 
     application of the Racial Justice Act would permit convicted 
     capital defendants to reopen their cases by presenting 
     discrimination claims (regardless of whether such claims had 
     previously been rejected).
       (c) The statistical premise of any version of the Racial 
     Justice Act is unsound, for several reasons, including:
       (i) It disregards the fundamental precept of our criminal 
     justice system that an individual is tried on the facts of 
     his or her case, not on the facts or circumstances or 
     statistics from unrelated cases;
       (ii) It overturns the U.S. Supreme Court's rejection of 
     such a statistical premise, where the Court noted with regard 
     to the Baldus study: ``Even Professor Baldus does not contend 
     that his statistics prove that race enters into any capital 
     sentencing decisions or that race was a factor in McCleskey's 
     particular case. Statistics at most may show only a 
     likelihood that a particular factor entered into some 
     decisions.'' McCleskey v. Kemp, 481 U.S. 279, 308 (1987) 
     (emphasis in original); and
       (iii) Its statistical showing fails to establish that the 
     imposition of capital punishment in a particular case is 
     predicated on any bias; and
       (d) The Racial Justice Act would permit the ``second-
     guessing'' of capital case decisions by prosecutors, defense 
     counsel, judges and juries based upon the information and 
     statistics required to be maintained under the Act;
       (e) The Racial Justice Act eliminated the traditional 
     deference to state-court findings of fact, 28 U.S.C. 
     Sec. 2254(d); Sumner v. Mata, 449 U.S. 539 (1981), if the 
     state fails to collect or maintain adequate records required 
     under the Act, and causes the individual conviction, though 
     lawfully and justifiably imposed, to be unduly placed in 
     jeopardy;
       (f) The potential cost of compliance on states and local 
     entities would be exorbitant;
       (g) The Racial Justice Act encourages a quota system for 
     capital punishment cases by in effect introducing ``race 
     consciousness'' into capital case decisions.
       (2) Opposes any legislation which would undermine or 
     otherwise modify the holding in McCleskey v. Kemp, 481 U.S. 
     279 (1987);
       (3) Calls upon the U.S. House of Representatives and U.S. 
     Senate to reject any version of the Racial Justice Act as 
     part of any package of federal habeas corpus reform or any 
     crime bill;
       (4) Opposes any legislation, including the omnibus crime 
     bill to be reported by the conference committee, which 
     includes any version of the Racial Justice Act. Any 
     meaningful provisions contained in the crime bill are 
     completely undermined by inclusion of the Racial Justice Act, 
     which is antithetical to fundamental notions under our 
     criminal justice system. If the omnibus crime bill contains 
     any version of the Racial Justice Act, we recommend it be 
     voted down until this legislation is removed.
       Be it further resolved by the Washington Association of 
     Prosecuting Attorneys that its Executive Secretary shall 
     transmit a copy of this resolution to the U.S. Senators and 
     Representatives in the Washington delegation and to members 
     of the Senate and House Committees on the Judiciary.
                                  ____


 Resolution of the Pennsylvania District Attorneys Association Adopted 
           April 30, 1994, Concerning the Racial Justice Act

       The Pennsylvania District Attorneys Association joins with 
     the California District Attorneys Association in adopting the 
     following resolution:
       Whereas, on April 21, 1994, the U.S. House of 
     Representatives adopted the omnibus crime bill, H.R. 4092, 
     which included Title IX legislation, referred to, and known 
     as, the Racial Justice Act (or the Racially Discriminatory 
     Capital Sentencing Act);
       Whereas, on April 20, 1994, the U.S. House of 
     Representatives narrowly defeated the McCollum Amendment to 
     strike the Racial Justice Act from the House Crime bill and 
     substitute in its place the Equal Justice Act, [The vote was 
     an effective 212 to 212 tie, after the votes of the five 
     Delegate members were excluded under recent House Rules.];
       Whereas, the Racial Justice Act would, first, permit a 
     capital case defendant to make a statistical showing that 
     death sentences are being imposed or administered in a 
     disproportionate manner upon (1) persons of one race or (2) 
     as punishment for capital offenses against persons of one 
     race, and, second, require the prosecutor to rebut this 
     statistical showing ``by a preponderance of the evidence'';
       Whereas, in the 102nd Congress, on June 20, 1991, the U.S. 
     Senate voted to strike a similar measure entitled the Racial 
     Justice Act out of the omnibus crime measure by a bipartisan 
     vote of 55 to 41 (this was the third successive Congress in 
     which the U.S. Senate rejected the Racial Justice Act), and 
     on October 22, 1991, the U.S. House of Representatives voted 
     to strike a similar measure by a bipartisan vote of 223 to 
     191;
       Whereas, the U.S. Supreme Court rejected a discrimination 
     claim founded solely upon statistics, in McCleskey v. Kemp, 
     481 U.S. 279 (1987).
       Now, therefore be it
       Resolved, That the Pennsylvania District Attorneys 
     Association:
       (1) opposes any version of the Racial Justice Act, for the 
     following reasons:
       (a) the Racial Justice Act would result in the effective 
     abolition of capital punishment.
       This would result because of the inherent and 
     insurmountable evidentiary difficulties and inevitable vast 
     expenditures of time and money in litigation in every post-
     conviction capital case, to prove by at least a preponderance 
     of the evidence a negative, to wit, that race was not the 
     basis for any of the prosecutor's, jury's, or judge's 
     decisions. [The Racial Justice Act contains a virtually 
     impossible rebuttal burden; ``Unless [the prosecutor or 
     state] can show that the death penalty was sought in all 
     cases fitting the statutory criteria for imposition of the 
     death penalty, the government cannot rely on mare assertions 
     that it did not intend to discriminate or that the cases in 
     which death was imposed fit the statutory criteria for 
     imposition of the death penalty.];
       (b) moreover, as to adjudicated cases, the retroactive 
     application of the Racial Justice Act would permit convicted 
     capital defendants to reopen their cases by presenting 
     discrimination claims (regardless of whether such claims had 
     previously been rejected). In Pennsylvania, there are 
     currently 153 individuals on death row. The retroactive 
     provision in the Racial Justice Act as passed by the House 
     would reverse the death sentences in these cases as well as 
     others around the nation.
       (c) the statistical premise of any version of the Racial 
     Justice Act is unsound, for several reasons, including:
       (i) it disregards the fundamental precept of our criminal 
     justice system that an individual is tried on the facts of 
     his or her case, not on the facts or circumstances or 
     statistics from unrelated cases;
       (ii) it overturns the U.S. Supreme Court's rejection of 
     such a statistical premise, where the court noted with regard 
     to the Baldus study: ``Even Professor Baldus does not contend 
     that his statistics prove that race enters into any capital 
     sentencing decisions or that race was a factor in McCloskey's 
     particular case. Statistics at most may show only a 
     likelihood that a particular factor entered into some 
     decisions. ``McCloskey v. Kemp, 481 U.S. 279, 308 (1987) 
     (emphasis in original); and
       (iii) its statistical showing fails to establish that the 
     imposition of capital punishment in a particular case is 
     predicated on any bias; and
       (d) the Racial Justice Act would permit the ``second-
     guessing'' of capital case decisions by prosecutors, defense 
     counsel, judges and juries based upon the information and 
     statistics required to be maintained under the Act;
       (e) the Racial Justice Act eliminates the traditional 
     deference to state-court finding of fact, 25 U.S.C. 
     Sec. 2254(d); Sumner v. Mats,  449 U.S. 539 (1981), if the 
     state fails to collect or maintain adequate records required 
     under the Act, and causes the individual conviction, though 
     lawfully and justifiable imposed, to be unduly placed in 
     jeopardy;
       (f) the potential cost of compliance on states and local 
     entities would be exorbitant, as demonstrated by one 
     California case (In re Earl Jackson) which took three years 
     to prepare for an evidentiary hearing and cost more than 
     $1,000,000. The evidentiary hearing was never held, after the 
     McCloskey v. Kemp ruling was rendered;
       (g) the Racial Justice Act encourages a quote system for 
     capital punishment cases and unacceptably injects ``race 
     consciousness'' into capital case decisions.
       (2) opposes any legislation which would undermine or 
     otherwise modify the holding in McCloskey v. Kemp, 481 U.S. 
     279 (1987);
       (3) calls up the U.S. House of Representatives and U.S. 
     Senate to reject any version of the Racial Justice Act using 
     statistical racial quotas as part of any crime bill;
       (4) opposes any legislation, including the omnibus crime 
     bill to be reported by the conference committee, which 
     includes any version of the Racial Justice Act using racial 
     quotas. Any meaningful provisions contained in the crime bill 
     are completely undermined by inclusion of the Racial Justice 
     Act, which is antithetical to fundamental notions under our 
     criminal justice system. If the omnibus crime bill contains 
     any version of the Racial Justice Act, we recommend it be 
     voted down until this legislation is removed; be it further 
     Resolved by the Pennsylvania District Attorneys Association 
     that its Executive Director shall transmit a copy of this 
     resolution to the U.S. Senators and Representatives in the 
     Pennsylvania delegation and to members of the Senate and 
     House Committees on the Judiciary.
       The Pennsylvania District Attorneys Association April 30, 
     1994.
                                  ____


  [From the Alabama District Attorneys Association, Adopted Apr. 29, 
                                 1994]

                   Concerning the Racial Justice Act

       Whereas, the Alabama District Attorneys Association is an 
     organization composed of the forty-one elected District 
     Attorneys of Alabama's sixty-seven counties and two hundred, 
     forty-seven assistant district attorneys;
       Whereas, on April 21, 1994, the U.S. House of 
     Representatives adopted the omnibus crime bill, H.R. 4092, 
     which included in Title IX legislation, referred to, and 
     known as, the Racial Justice Act (or the Racially 
     Discriminatory Capital Sentencing Act);
       Whereas, on April 20, 1994, the U.S. House of 
     Representatives narrowly defeated the McCollum Amendment to 
     strike the Racial Justice Act from the House crime bill and 
     substitute in its place the Equal Justice Act. (The vote was 
     an effective 212 to 212 tie, after the votes of the five 
     Delegate members were excluded under recent House Rules.);
       Whereas, the Racial Justice Act would, first, permit a 
     capital case defendant to make a statistical showing that 
     death sentences are being imposed or administered in a 
     disproportionate manner upon (1) persons of one race or (2) 
     as punishment for capital offenses against persons of one 
     race, and, second, require the prosecutor to rebut this 
     statistical showing ``by a preponderance of the evidence'';
       Whereas, in the 102d Congress, on June 20, 1991, the U.S. 
     Senate voted to strike a similar measure entitled the Racial 
     Justice Act out of the omnibus crime measure by a bipartisan 
     vote of 55 to 41 (this was the third successive Congress in 
     which the U.S. Senate rejected the Racial Justice Act), and 
     on October 22, 1991, the U.S. House of Representatives voted 
     to strike a similar measure by a bipartisan vote of 223 to 
     191;
       Whereas, the U.S. Supreme Court rejected a discrimination 
     claim founded solely upon statistics, in McCleskey v. Kemp, 
     481 U.S. 279 (1987): Now, therefore, be it
       Resolved, that in light of the urgency and importance of 
     this matter, all 41 Alabama district attorneys, having been 
     polled, unanimously:
       (1) oppose any version of the Racial Justice Act, for the 
     following reasons:
       (a) the Racial Justice Act would result in the effective 
     abolition of capital punishment.
       This would result because of the inherent evidentiary 
     difficulties and inevitable vast expenditures of time and 
     money in litigation in every post-conviction capital case, to 
     prove by at least a preponderance of the evidence a negative, 
     to wit, that race was not the basis for any of the 
     prosecutor's, jury's, or judge's decisions. (The Racial 
     Justice Act contains a virtually impossible rebuttal burden: 
     ``Unless (the prosecutor or State) can show that the death 
     penalty was sought in all cases fitting the statutory 
     criteria for imposition of the death penalty, the government 
     cannot rely on mere assertions that it did not intend to 
     discriminate or that the cases in which death was imposed fit 
     the statutory criteria for imposition of the death penalty.);
       (b) moreover, as to adjudicated cases, the retroactive 
     application of the Racial Justice Act would permit convicted 
     capital defendants to reopen their cases by presenting 
     discrimination claims (regardless of whether such claims had 
     previously been rejected). In Alabama, there are currently 
     125 individuals on death row. The retroactive provision in 
     the Racial Justice Act as passed by the House would 
     potentially affect these cases as well as others around the 
     nation;
       (c) the statistical premise of any version of the Racial 
     Justice Act is unsound, for several reasons, including:
       (i) it disregards the fundamental precept of our criminal 
     justice system that an individual is tried on the facts of 
     his or her case, not on the facts or circumstances or 
     statistics from unrelated cases;
       (ii) it overturns the U.S. Supreme Court's rejection of 
     such a statistical premise, where the Court noted with regard 
     to the Baldus study: ``Even Professor Baldus does not contend 
     that his statistics prove that race enters into any capital 
     sentencing decisions or that race was a factor in McCleskey's 
     particular case. Statistics at most may show only a 
     likelihood that a particular factor entered into some 
     decisions.'' McCleskey v. Kemp, 481 U.S. 279,308 (1987) 
     (emphasis in original): and
       (iii) its statistical showing fails to establish that the 
     imposition of capital punishment in a particular case is 
     predicated on any bias: and
       (d) the Racial Justice Act would permit the ``second-
     guessing'' of capital case decisions by prosecutors, defense 
     counsel, judges and juries based upon the information and 
     statistics required to be maintained under the Act;
       (e) the Racial Justice Act eliminates the traditional 
     deference to state-court findings of fact, 28 U.S.C. Section 
     2254(d), Sumner v. Mata, 449 U.S. 539 (1981), if the state 
     fails to collect or maintain adequate records required under 
     the Act, and causes the individual conviction, though 
     lawfully and justifiably imposed, to be unduly placed in 
     jeopardy;
       (f) the potential cost of compliance on states and local 
     entities would be exorbitant;
       (g) the Racial Justice Act encourages a quota system for 
     capital punishment cases by in effect introducing ``race 
     consciousness'' into capital case decisions.
       (2) opposes any legislation which would undermine or 
     otherwise modify the holding in McCleskey v. Kemp, 481 U.S. 
     279 (1987);
       (3) calls upon the U.S. House of Representatives and U.S. 
     Senate to reject any version of the Racial Justice Act as 
     part of any package of federal habeas corpus reform or any 
     crime bill;
       (4) opposes any legislation, including the omnibus crime 
     bill to be reported by the conference committee, which 
     includes any version of the Racial Justice Act. Any 
     meaningful provisions contained in the crime bill are 
     completely undermined by inclusion of the Racial Justice Act, 
     which is antithetical to fundamental notions under our 
     criminal justice system. If the omnibus crime bill contains 
     any version of the Racial Justice Act, we recommend it be 
     voted down until this legislation is removed.
       Be it further resolved by the Alabama District Attorneys 
     Association that its Executive Director shall transmit a copy 
     of this resolution to the U.S. Senators and Representatives 
     in the Alabama delegation and to members of the Senate and 
     House Committees on the Judiciary.
                                               Thomas W. Sorrells,
                                               Executive Director.
                                  ____

                                              State of California,


                               Office of the Attorney General,

                                      Sacramento, CA, May 2, 1994.
     Hon. Janet Reno,
     Attorney General of the United States,
     Washington, DC.
       Dear Attorney General Reno: I wanted to share with you my 
     strong opposition to any version of the Racial Justice Act 
     which may be included in the conference report on the omnibus 
     crime bill. These views, which are based upon California's 
     experience litigating similar claims, are explained in the 
     enclosed letter to President Clinton. Please let me know if 
     my office may be of any assistance to you on this issue.
           Sincerely,
                                                Daniel E. Lungren,
                                                 Attorney General.
                                  ____

                                              State of California,


                               Office of the Attorney General,

                                                      May 2, 1994.
     Hon. Bill Clinton,
     The President of the United States, The White House 
         Washington, DC.
       Dear President Clinton: I wish to congratulate you on your 
     eloquent remarks during President Richard Nixon's funeral 
     yesterday. As I listened to you deliver your speech, I was 
     impressed with how its conciliatory tone captured the mood of 
     the nation during this important hour.
       As you may recall, we had an opportunity to discuss briefly 
     the Omnibus crime bill during the National Attorneys General 
     Association meeting at the White House. At that time, I 
     indicated how federal habeas reform and the Racial Justice 
     Act would likely create two stumbling blocks to enactment of 
     other meaningful reforms contained in the omnibus crime bill. 
     In fact, both of these issues have held up crime reform 
     legislation in the past. Subsequent to our meeting, a 
     bipartisan group of 32 Attorneys General signed a letter to 
     senior members of the House Judiciary requesting that both 
     the habeas provisions and Racial Justice Act be dropped from 
     the crime bill. A copy of this letter is attached for your 
     review.
       As you know, the U.S. House of Representatives agreed to 
     strike the habeas reforms from the crime bill. This was 
     consistent with a bipartisan motion to strike the habeas 
     portion of the Senate crime bill, which was adopted last 
     fall.
       Regrettably, on a narrow vote, the House failed to 
     eliminate the controversial Racial Justice Act from the crime 
     bill. Because the Senate crime bill does not contain a 
     similar provision, a joint House-Senate Conference Committee 
     must now reconcile this issue. Each time the Senate has 
     considered the Racial Justice Act it has rejected it. See 137 
     Cong. Rec. S 8300 (daily ed. June 20, 1991) (motion to strike 
     the Racial Justice Act adopted 55 to 41); 136 Cong. Rec. S 
     6910 (daily ed. May 24, 1990) (motion to strike the Racial 
     Justice Act adopted 58 to 38) 134 Cong. Rec. S 15,755-56 
     (daily ed. Oct. 13, 1988) (amendment to add Racial Justice 
     Act defeated 35 to 52).
       For two reasons it is important that the Racial Justice Act 
     must be dropped from the conference report on the omnibus 
     crime bill. First, prosecutors are uniformly opposed to any 
     version of the Racial Justice Act. In addition to State 
     Attorneys General who already oppose this legislation, last 
     Friday, all 58 District Attorneys in California adopted a 
     Resolution indicating their strong opposition to any version 
     of the Racial Justice Act. The reasons are explained in the 
     enclosed Resolution. I also join with many other prosecutors 
     who have concluded it is unacceptable to limit the Racial 
     Justice Act to federal capital cases. We reject the unsound 
     premise that statistics in unrelated cases have a legitimate 
     role in the prosecution of any specific criminal case at the 
     federal or state level. Second, in light of this united 
     opposition at the local and State level, the failure to 
     remove the Racial Justice Act from the crime bill may likely 
     delay the enactment of other needed reforms contained in the 
     crime bill.
       Two examples from California demonstrate the tremendous 
     cost and burden which would be imposed on the States if the 
     Racial Justice Act were enacted. A claims similar to the 
     Racial Justice Act was raised in 1984 in the In re Earl Lloyd 
     Jackson case, as is explained more fully in the attachment. 
     Jackson was convicted and sentenced to death for his 
     involvement in the brutal beatings and murders of two elderly 
     widows (an 81-year-old and a 90-year-old) during two 
     robberies in Long Beach in 1977. Jackson ultimately confessed 
     to the crimes and boasted to others about his role in the 
     murders. With regard to the Racial Justice Act type claims, 
     it took three years for both sides to prepare for the court-
     ordered evidentiary hearing. The state taxpayers were 
     required to pay for more than $1,000,000 in costs solely for 
     the preparation for the hearing, which ultimately was never 
     held as a result of the subsequent U.S. Supreme Court ruling 
     in McCleskey v. Kemp, 481 U.S. 279 (1987).
       Additionally, the Robert Alton Harris case shows the broad 
     potential application of the Racial Justice Act. Harris, who 
     was executed in April, 1992, murdered two teenage boys near 
     San Diego on July 5, 1978. Harris, who confessed at least 
     seven times to murdering the teenagers and who was white, had 
     asserted that the California death penalty was administered 
     in a discriminatory manner because his victims were white. 
     This statistical showing was ultimately rejected in federal 
     court in light of U.S. Supreme Court precedent, Harris v. 
     Pulley, 885 F.2d 1354, 1373-77 (9th Cir. 1988), cert. denied, 
     110 S.Ct. 854 (1990). There is nothing in the legislation 
     which would preclude similar individuals such as Harris from 
     bringing similar claims.
       For these reasons, on behalf of law enforcement in 
     California, I strongly urge you to exercise your authority to 
     ensure that any form of the so-called Racial Justice Act will 
     not be included in the conference report on the crime bill. 
     Please advise if my office may be of any assistance to you on 
     this important matter.
           Sincerely,
                                                Daniel E. Lungren,
                                                 Attorney General.
                                  ____

                                                    State of Utah,


                               Office of the Attorney General,

                                                   April 11, 1994.
     Re: Habeas Corpus/Sentencing Legislation
     Representative James Hansen,
     Rayburn Building, Washington, DC.
     Representative William H. Orton,
     South Longworth Office, Washington, DC.
     Representative Karen Shepherd,
     House of Representatives, Cannon, Washington, DC.
       Dear Representatives Hansen, Orton, and Shepherd: I am 
     writing this letter to advise you of my position relating to 
     Titles VIII and IX and H.R. 4092, the omnibus crime bill. My 
     comments are based not only on my office's analysis of the 
     issue but also my understanding of the position of the Utah 
     law enforcement community as a whole. I have had an 
     opportunity to talk with many of the top law enforcement 
     individuals in the State of Utah and I think we all agree on 
     the following analysis:
       H.R. 4092, Title VIII (concerning federal habeas corpus):
       I oppose this title because, rather than curtailing habeas 
     litigation, it would multiply postconviction litigation, 
     overturn significant and very helpful U.S. Supreme Court 
     precedent, and further undermine the finality of state 
     criminal convictions.
       I support the Hyde Amendment, which would excise the 
     controversial habeas provisions from the present crime bill 
     and allow them to be considered separately on their own 
     merits.
       H.R. 4092, Title IX (concerning race in capital 
     sentencing):
       I oppose this title (the so-called ``Racial Justice Act'') 
     because it would impose an unworkable statistically-based 
     procedure on the states and in Utah's case create a system 
     that would be unworkable.
       I support the McCollum Amendment (the ``Equal Justice 
     Act'') because it would prohibit racial discrimination in all 
     sentencing without imposing unworkable statistical models.
       The Utah law enforcement community believes that Titles 
     VIII and IX of H.R. 4092 would effectively abolish capital 
     punishment, weaken law enforcement, and suspend closure for 
     victims of violent crime. The provisions would also impose 
     significant new financial burdens on the State of Utah. I 
     urge you to oppose these provisions.
           Very truly yours,
                                                       Jan Graham,
                                                 Attorney General.
                                  ____



                                     Commonwealth of Virginia,

                                         Richmond, April 25, 1994.
     Hon. John W. Warner,
     U.S. Senate,
     Washington, DC.
       Dear Senator Warner: As I am sure you are aware, different 
     versions of the omnibus crime bill have passed the Senate and 
     House of Representatives. I write to ask you to instruct the 
     Senate conferees to give the highest priority to removing, 
     from the final bill, that part of the House legislation which 
     allows racial statistics to be used to justify establishing a 
     virtual quota system for capital punishment.
       In McCleskey v. Kemp, the United States Supreme Court 
     rejected a claim which would have allowed capital defendants 
     to make a statistical showing of potential race 
     discrimination from unrelated cases as a basis for collateral 
     relief. The Court held correctly that a defendant who 
     contests his capital sentence on the basis of racial 
     discrimination is required to prove that the decision makers 
     in his or her own case acted with a discriminatory purpose.
       The National Association of Attorneys General has resolved 
     to oppose ``any measure that would allow a capital defendant 
     to make a statistical showing from unrelated cases as the 
     basis for appellate or collateral relief.'' The ultimate 
     passage of such legislation would undermine our efforts to 
     aid law enforcement in stemming the rising tide of crime 
     threatening our nation by, in effect, rendering capital 
     punishment in most states, including Virginia, unenforceable.
       I urge you to do everything in your power to ensure that 
     this pernicious provision will not be part of the final 
     omnibus crime bill.
       With best wishes, I remain
           Very truly yours,
                                             James S. Gilmore III,
                                     Attorney General of Virginia.
                                  ____

                                                State of Delaware,


                                        Department of Justice,

                                          Wilmington, May 9, 1994.
     Hon. Joseph R. Biden,
     U.S. Senate,
     Washington, DC.
       Dear Senator Biden: On May 6, 1994, a letter was addressed 
     to you from several Attorneys General from around the country 
     regarding the Racially Discriminatory Capital Sentencing Act 
     included in Title IX of H.R. 4092. I share the concerns 
     expressed by these Attorneys General and hope that you will 
     drop this portion of the proposed legislation. The law as set 
     forth in the McCleskey v. Kemp, 481 U.S. 279 (1987) allows 
     any capital defendant to prove that his or her own case was 
     tainted by racial discrimination.
       On March 21, 1994, the National Association of Attorneys 
     General adopted a resolution setting forth its collective 
     opposition to this particular act. I firmly believe that if 
     passed, the effect will be to essentially stop the 
     prosecution and enforcement of capital cases. Virtually every 
     capital case will be subject to some form of challenge. The 
     courts will be forced to hear claims no matter how 
     outrageous.
       I urge that this portion of the crime bill be removed.
                                            Charles M. Oberly III,
                                                 Attorney General.
                                  ____

                                                 National District


                                        Attorneys Association,

                                   Alexandria, VA, April 29, 1994.
     Hon. Bill Clinton,
     The White House,
     Washington, DC.
       Dear President Clinton: I write to you on behalf of the 
     7000 members of the National District Attorneys Association. 
     We serve as the peoples prosecutors and lead their daily 
     fight against crime and its tragic effects on our nation. Our 
     Association has long been on record as opposing 
     discrimination in our system of criminal justice; we are, 
     however, vehemently opposed to the purported ``Racial Justice 
     Act'' now included in Title IX of the House version of the 
     Crime Bill.
       The National District Attorneys Association views the 
     ``Racial Justice Act'' as nothing less than a subrosa attempt 
     to end the imposition of the death penalty in the United 
     States. Attempts to limit its effect to only federal cases or 
     to limit retroactivity is meaningless when due process and 
     equal protection dictate otherwise. If the people we both 
     serve will the end of the death penalty, then let us address 
     the issue in open debate, not hiding behind the guise of race 
     and discrimination.
       We also see this Act as a challenge to the very foundation 
     of our system of criminal justice. Our heritage directs that 
     each of us answer as an individual for our misdeeds and is 
     punished accordingly; the ``Racial Justice Act'' establishes 
     lineage and statistical analysis as the new premise for 
     accountability. This attacks the very basis of our system of 
     criminal law and has far wider implications than those 
     attributed to capital cases alone.
       You have pledged to make America safer, more secure, and 
     the Crime Bill has many measures that we, as local 
     prosecutors, will find assist us in helping you fulfill this 
     pledge. We urge you not to renege on your pledge, not to 
     dilute its effect--the Racial Justice Act must be removed 
     from the Crime Bill if you are to make a meaningful 
     commitment to fighting crime.
           Sincerely,
                                              William C. O'Malley,
                                                        President.
                                  ____

                                       National District Attorneys


                                                  Association,

                                   Alexandria, VA, April 29, 1994.
     Hon. Janet Reno,
     Attorney General of the United States, Department of Justice, 
         Washington, DC.
       Dear Attorney General Reno: The National Attorneys General 
     Association is vehemently opposed to the purported ``Racial 
     Justice Act'' now included as Title IX in the House version 
     of the Crime Bill (HR 4092). The 7000 members of this 
     Association have long been on record as pledging to do every 
     thing in our power to end discrimination in our criminal 
     justice system. It is our strong belief, however, that this 
     Act makes a travesty of that very system.
       The district attorneys of this nation, serving as the 
     peoples prosecutors, see this Act as nothing less than a 
     subrosa attempt to end the imposition of the death penalty in 
     the United States. If that is the will of the American people 
     let us address this issue in open debate not under the guise 
     of race and discrimination. We are joined in the belief by 
     many others charged with leading the daily fight against 
     crime.
       Moreover, we view the ``Racial Justice Act'' as a challenge 
     to the very premise upon which our system of law is 
     predicated--that each of us appears in court to answer as an 
     individual for his or her own deeds. If this Act becomes law, 
     individual accountability would be replaced with statistical 
     analysis and group lineage as the basis for punishment. While 
     on its face the statute refers only to capitol cases there 
     can be little doubt of its undermining effect on our entire 
     criminal system and national ethic.
       You were a district attorney for many years. As such you 
     shouldered an ever increasing criminal case load, you did 
     your utmost to reduce the effects of crime and to help its 
     victims and you, as we do now, answered directly to the 
     people who choose you to serve. We urge you not to betray 
     that heritage; not to further handicap our continued 
     struggle. You, as the nations senior prosecutor must support 
     every effort to remove the Racial Justice Act from the Crime 
     Bill and protect our system of criminal justice.
           Sincerely,
                                              William C. O'Malley,
                                                        President.
                                  ____



                             Citizens for Law and Order, Inc.,

                                                     May 11, 1994.
     Hon. Orrin G. Hatch,
     Senate Judiciary Committee, U.S. Senate, Washington, DC.
       Dear Senator Hatch: Citizens for Law and Order (C.L.O.) and 
     the 19 other grass roots groups falling within our umbrella, 
     are victim organizations whose total membership comes to 
     150,000 persons. All of us are strongly opposed to the so-
     called Racial Justice Act because it will virtually eliminate 
     the death penalty in our country--and thus revictimize the 
     surviving family members of our loved ones who were murdered.
       Please provide fairness and justice to murder victims and 
     their families--insure that the Racial Justice Act does not 
     become part of the Crime Bill and does not become law. Crime 
     victims deserve the compassion of the Congress. Do not insult 
     us with the Racial Justice Act.
           Sincerely,
                                                     Jack Collins.
                                  ____


                [From the New York Post, Apr. 29, 1994

      Death-Penalty Foes Use Tortured Logic in Race-Bias Argument

                              (By Ed Koch)

       Last week, House Democrats tried to end the use of the 
     death penalty in the United States. Desperate to secure 
     support for the crime bill from at least some members of the 
     Congressional Black Caucus and other liberals, they attached 
     the Racial Justice Act amendment to that legislation.
       The amendment would allow those sentenced to death to use 
     statistical evidence of alleged racial bias tainting past 
     executions to set aside their own death sentence. A minority 
     defendant would not be required to prove that a jury had 
     specifically engaged in racism in ordering his death--simply 
     citing the statistical pattern of alleged racial bias would 
     be enough.
       Rep. Don Edwards (D-Calif.) recently said in an interview: 
     ``Forty percent of the 3,000 people on death row are black, 
     even though blacks are only 13 percent of the population.'' 
     Surely Edwards, longtime chairman of the Judiciary 
     Subcommittee on Civil and Constitutional Rights, knows, but 
     fails to mention, that 55 percent of the murders committed in 
     1992 were by black perpetrators. Further, black males ages 15 
     to 24, who are 1 percent of the population, committed at 
     least 19 percent of those murders. For courts to be 
     considered non-racist using Rep. Edwards' tortured logic, 55 
     percent of those executed should have been black.
       Using similar tortured logic, a case could be made that it 
     is white murderers who are the subjects of discrimination. 
     Far fewer blacks than whites have been executed: Of the 227 
     people executed between 1977 and January 1994, according to 
     the NAACP Legal Defense Fund, 124 were white, 88 black, 14 
     Latino and one Native American. Fifty-five percent of those 
     executed have been white, when 55 percent of those committing 
     the murders were black, at least in 1992, the last year for 
     which Justice Department figures are available.
       The Edwards' doctrine, bizarrely, would require that juries 
     sentence even more black defendants to death to achieve 
     true racial balance. Isn't it fair to ask, if the number 
     of black murderers being executed had been raised 
     consistent with their murderous deeds, would those 
     supporting the amendment have cheered this achievement of 
     racial equality?
       Jurors are charged by the court to limit their 
     discretionary application of the death penalty to rational 
     criteria established by the state, and must consider all 
     mitigating factors helpful to the defendant. It's impossible 
     to know why a jury condemns a particular defendant to death. 
     The Supreme Court has said, ``Jurors cannot be called . . . 
     to testify to the motives and influences that led to their 
     verdict.''
       This amendment is an attempt by the House to overturn the 
     1987 Supreme Court decision in McClesky vs. Kemp. In that 
     case, the Court ruled by a 5-to-4 vote that statistical 
     evidence covering all murder sentences in a jurisdiction 
     could not support a charge of discrimination in a particular 
     case. Specific racial bias must be proved in each individual 
     case.
       How could it be otherwise, since the jury in each case 
     consists of different groups of people, and, under current 
     law, no prospective juror may be challenged on the basis of 
     race?
       As mayor, I attended the heartbreaking funerals of police 
     officers killed in the line of duty. From 1977--when the 
     death penalty was resumed in the United States following the 
     Supreme Court ruling that it was constitutional--to 1994, 56 
     NYPD cops were killed in the line of duty. Of the murderers 
     apprehended, seven were white, 31 were black and 13 were 
     Hispanic.
       None of those killers was executed, because New York state 
     does not have the death penalty. In its editorial supporting 
     the ``racial justice'' amendment, the New York Times says, 
     ``The state might successfully rebut such evidence [of racial 
     bias], say in a case involving a slain policeman, by showing 
     a consistent pattern of seeking the death penalty for cop-
     killers regardless of race.''
       In view of the Times' fervid opposition to the death 
     penalty, for them to use that example is chutzpah.
       The long and the short of it is that the supporters of the 
     racial-bias amendment are overwhelmingly against the death 
     penalty for anyone. They know, however, that the country--and 
     their constituents--overwhelmingly support the death penalty, 
     and, therefore, they prefer to obfuscate when offering their 
     support of the amendment.
       When pressed, they offer the disingenuous argument that 
     those who murder black or Hispanic victims are not put to 
     death in the same proportion as those who murder white 
     victims. Again, I ask: Would they be satisfied if more 
     murderers of blacks were executed, knowing that blacks are 
     murdered overwhelmingly by other blacks?
       For the opponents of the death penalty, it's any argument, 
     no matter how flimsy. This particular ruse is so transparent, 
     one can only hope the Senate rejects the amendment in the 
     joint conference.

  Mr. HATCH. Mr. President, I yield back any time I may have.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. I yield 7\1/2\ minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Ms. MOSELEY-BRAUN. I thank the Chair.
  Mr. President, I think by this point everyone knows my position on 
the Racial Justice Act, so I will be brief this afternoon. But I have a 
few important points to make before the Senate votes on the amendment 
of my colleague from New York.
  Before voting, I would urge every Senator to read very carefully the 
language of the D'Amato amendment. The amendment states that the Senate 
and House conference on crime legislation should, ``Totally reject the 
so-called Racial Justice Act.'' I would ask my colleagues if this is, 
in fact, the message we want to send to the conference committee--that 
the Senator totally rejects any efforts to correct what every study 
that has ever been conducted in this area has overwhelmingly 
demonstrated--that there are jurisdictions in this Nation, including 
the Federal Government itself, where the death penalty is administered 
in a racially discriminatory manner. If this is not the message we want 
to send into conference, then I would suggest you cast your vote 
against the D'Amato amendment.
  I also want to make clear for those who have not actually read title 
IX of the House crime bill that this Racial Justice Act is much 
different than previous versions. The current bill imposes a higher 
burden of proof on the defendant, requiring him to demonstrate a 
pattern of racially biased death sentences in cases similar to his own, 
in the jurisdiction that imposed his sentence and at the time his 
sentence was imposed. In addition, the burden of proof of the 
prosecutor to rebut this evidence has been lowered, from clear and 
convincing evidence to a mere preponderance of the evidence. There are 
no burdensome recordkeeping requirements imposed on the States--a 
defendant bears the entire burden of collecting and analyzing data--and 
the bill, in its final form, will not apply retroactively. So we are 
talking about going forward.
  I would also like to address what the Racial Justice Act does not do. 
Despite the claims of some opponents, the Racial Justice Act does not 
eliminate capital punishment. Let me underscore that. It does not 
eliminate capital punishment. It merely prohibits continued racial 
discrimination in the administration of the death penalty. So long as 
death sentences are imposed in a nondiscriminatory manner, they will 
not be affected under the bill.
  In order words, this legislation will only affect those death 
sentences where, taking into account the brutality of the offenses, the 
prior records of the offenders, and other nonracial characteristics, 
race is left as the determining factor in the imposition of the death 
penalty. The only way this legislation could completely eliminate the 
death penalty is if every death penalty was imposed based on 
discriminatory factors.

  Nor will the Racial Justice Act impose a quota system in the death 
penalty. Nothing could be further from the truth. If death sentences 
were handed out on the basis of quotas, then they would by definition 
be handed down on the basis of race. That--imposing death sentences on 
the basis of race--is exactly what this bill, title 9, is designed to 
prevent.
  Finally, this will not impose an undue burden on the courts. Every 
major civil rights bill in modern times has allowed the use of 
statistics to prove discrimination, whether in housing or employment or 
education or voting for that matter. The courts have proved quite 
capable of analyzing statistical evidence in each of these situations. 
All that proponents of the Racial Justice Act are asking is for 
Congress to grant someone sentenced to death the same opportunity to 
present a discrimination claim as we have granted to someone turned 
down for an apartment.
  As you may know, Mr. President, I just returned from South Africa and 
the inauguration of Nelson Mandela.
  Before I left to travel to South Africa for the inauguration, I drew 
an analogy between the changes occurring in South Africa and the vote 
on racial justice. I am going to make that same analogy today. Despite 
the strides this country has taken to overcome its shameful past, there 
are still situations of apartheid in America, situations where a 
person's race truly does make a difference in how that person is 
treated under the law. One of those situations--and the statistics are 
very clear in this regard--is in the administration of the death 
penalty. One need look no further than the Federal criminal justice 
system to realize this. Since 1988, the Federal death penalty for drug 
kingpins, for example, has been sought against 36 defendants--4 of 
those defendants have been white, 4 have been Hispanic, and 28--77 
percent--have been African-American. Keep in mind that 75 percent of 
the defendants charged under this statute have been white.
  Mr. President, in closing, I want to urge my colleagues to think 
about the message this vote will send to the Senate and House 
conferees. Last Friday I paraphrased a quote from Vaclav Havel that I 
would like to quote in full today. It describes a phenomenon known as 
the butterfly effect, which is:

       A belief that everything in the world is so mysteriously 
     and comprehensively interconnected that a slight, seemingly 
     insignificant wave of a butterfly's wing in a single spot on 
     this planet can unleash a typhoon thousands of miles away.

  Whether a person as an individual supports or opposes the death 
penalty, I think we can all agree that it should be imposed in a 
nondiscriminatory manner.
  I think we can all agree that the facts are what they are. It is not 
a matter of opinion. The statistics and the numbers that have been 
talked about in this debate are reality. Including, frankly, in the 
Federal system.
  The vote on this amendment today is important and can have a very 
real effect on how the Senate deals with the issue of racial bias in 
the administration of our entire system of law, including of course the 
death penalty. I urge my colleagues to vote against the D'Amato 
amendment and to send a signal the Senate is committed to addressing 
this shameful pattern of discrimination.
  In closing I would also like to say that this is--this vote, the vote 
on this amendment--really is not a vote about crime any longer. I think 
this body has sent a message very loud and clear that as for crimes 
that progress in a certain way through the criminal justice system, the 
death penalty is an appropriate punishment. That has been resolved.
  The question is if we are going to allow this vote--which masquerades 
as a vote about crime--to get away from us and obscure the fact that it 
really is a vote about color. Are we going to allow color, are we going 
to allow race, to play a role and continue to produce the abysmal, 
embarrassing statistics that we have seen demonstrated on the floor by 
the opponents of the D'Amato amendment?
  I think this body is above that. I think this country is beyond that. 
I think we want to send a signal that we believe in equal justice under 
the law for all people, without regard to race, without regard to 
color. And therefore the D'Amato amendment must fall of its own weight.
  The PRESIDING OFFICER. Who yields time?
  Mr. BIDEN. Mr. President, I spoke in some detail last Friday about 
why I will oppose the sense-of-the-Senate amendment offered by the 
Senator from New York. Today, let me summarize my thoughts by making 
two points:
  First, the Racial Justice Act will not put an end to capital 
punishment. What the act will do, is require courts to examine 
competent evidence that a death sentence was imposed for reasons of 
race, rather than--as should be the case--due to the nature of a 
defendant's crime.
  This imposes no unbearable burden on the courts. Indeed, it is 
something the courts have long done expertly in a wide variety of 
contexts, such as housing discrimination, employment discrimination, 
and discrimination in our schools.
  The act does not mandate the outcome in any case, nor does it mandate 
that a court must admit any or all evidence a defendant may submit. In 
fact, the act explicitly confers on the courts the discretion to reject 
evidence that is not valid or relevant.
  Far from preventing courts from imposing the death penalty in all 
cases, it simply requires courts in some cases to make one additional 
inquiry to ensure that race does not determine who will live and who 
will die.
  Second, it seems to me we should be willing to accept the necessary 
burden of ensuring that racial discrimination plays no role in 
determining who gets the death penalty.
  I support the death penalty in appropriate cases, and I included a 
major expansion of the Federal death penalty in the crime bill the 
Senate acted on last November.
  At the same time, I have worked to ensure that the procedures that 
govern imposition of death sentences in our courts are as fair and just 
as possible.
  A just society must not sentence people to death on the basis of 
race.
  Mrs. MURRAY. Mr. President, this resolution directs conferees on the 
crime bill to reject the House provisions on racial justice, and I 
intend to vote against it.
  The Senate crime bill expands the death penalty to over 50 new 
Federal crimes. Inclusion of the Racial Justice Act is important to 
ensure that the death penalty is applied in a nondiscriminatory manner.
  This provision is a civil rights measure designed to eliminate race 
discrimination in capital cases. It would allow courts to consider 
evidence of a consistent pattern of racially biased sentencing in 
similar death penalty cases to determine whether discrimination has 
occurred in a particular case.
  The defendant would bear the burden of collecting and analyzing the 
data to show a pattern of racially biased death sentences in factually 
similar cases in the same jurisdiction.
  The legislation would not apply retroactively so it would not apply 
to the 2,700 people currently on death row.
  The Racial Justice Act addresses the fact that the death penalty is 
not sought in all cases that fit the statutory criteria for its 
imposition. In most jurisdictions, capital punishment laws authorize, 
but do not require, the death penalty in a large number of cases. Of 
the many cases eligible for the death penalty, prosecutors pick only a 
few for capital prosecution. Under the Racial Justice Act, by comparing 
cases in which the death penalty is sought with similar cases in which 
it is not sought, the courts will have a mechanism to evaluate whether 
race was a determining factor.
  I know that the prosecutors in my home State of Washington work very 
hard to avoid discrimination in the charging, sentencing and imposition 
of the death penalty. I also know, however, that we have not rid our 
Nation's criminal justice system of racial discrimination yet. We need 
to take this responsibility very seriously, especially with regard to 
the application of the death penalty.
  In 1990, the Government Accounting Office reported that in 82 percent 
of the studies it reviewed, the race of the victim was found to 
influence the likelihood of a defendant being charged with capital 
murder or receiving the death penalty. The GAO report found that those 
who murdered whites were more likely to be sentenced to death than 
those who murdered African-Americans.
  Under the Federal death penalty law adopted in 1988 for drug 
kingpins, 77 percent of the defendants against whom the death penalty 
was sought have been African-American, even though 75 percent of the 
defendants under the statute have been white.
  The Racial Justice Act will require prosecutors to charge capital 
murder without regard to race. It is designed to remedy bias that 
already exists within the criminal justice system. It will prevent 
charging decisions that treat cases involving one race as more suitable 
for the death penalty than cases involving another race.
  Mr. President, I support the Racial Justice Act because it will help 
eliminate the influence of race in death sentencing. Given the dramatic 
expansion of the death penalty in the crime bill, I believe this 
provision must be included. The act will send a clear message to 
prosecutors across the nation to use race-neutral criteria for seeking 
the death penalty. And, it will help ensure that similar crimes receive 
similar sentences.
  I urge my colleagues to reject the resolution before us, and to 
support the inclusion of the Racial Justice Act in the crime bill.
  Mr. THURMOND. Mr. President, I rise today in support of Senator 
D'Amato's amendment. This language makes clear that the crime conferees 
should reject the provision in the House-passed crime bill which would 
effectively abolish the death penalty across the Nation, at the Federal 
and State levels.
  The anti-death penalty provision is title IX in the House-passed 
crime bill and often mislabeled by its proponents as the Racial Justice 
Act. This language would allow death-sentenced murderers the 
opportunity to avoid the death penalty by using a statistical quota 
system to challenge their sentence. We have defeated this legislation 
time and time again in the Senate when offered by those who are opposed 
to the death penalty.
  Mr. President, to those who claim that this provision is necessary to 
prohibit a death sentence based on considerations of race, I would 
point them to the 14th amendment to the Constitution. The 14th 
amendment, along with other protections, contains a fundamental 
proposition which prohibits any person from being sentenced to death on 
the basis of race.
  Title IX in the House-passed crime bill would permit a defendant in a 
capital case to make a showing that race was a statistical significant 
factor in decisions to seek or impose the death sentence in the 
jurisdiction in question. Once this minimal standard of a statistical 
imbalance is shown, a heavy burden of rebuttal is then imposed on State 
or Federal prosecutors.
  Mr. President, I have been a judge and a practicing attorney. It has 
always been my understanding that individuals are tried on the facts of 
his or her case, not on the facts, circumstances or statistics from 
unrelated cases. This has been a fundamental precept in our criminal 
justice system. Passage of the so-called Racial Justice Act would 
relegate the outcome of capital cases to statistical assertions from 
other unrelated capital cases. Needless to say, the focus of the trial 
should be whether the defendant committed the offense for which he was 
charged and it should not be overshadowed by statistical jousting.
  Clearly capital cases should be race neutral. The proposal in the 
House bill brings race consciousness into the trial in order to attain 
a racial balance. This actually heightens the role of an individual's 
race in capital cases and establishes a quota system in death penalty 
cases. The guilt or innocence and imposition of the death penalty 
should turn on the facts of an individual's case having nothing to do 
with the defendants race or the race of individuals in unrelated cases.
  Mr. President, let there be no mistake, title IX in the House-passed 
crime bill would effectively abolish the death penalty at the Federal 
and State levels. Also, it completely overturns the Supreme Court 
decision in McCleskey versus Kemp. In that decision, the Supreme Court 
held that a defendant who contests his capital sentence on the basis of 
racial discrimination is required to prove that the decision makers in 
his own case acted with discriminatory purposes.
  The Supreme Court has rejected the statistical theory of racial 
discrimination in death penalty cases and the Racial Justice Act is a 
thinly veiled attempt to overturn the Supreme Court on this matter. It 
is important to note that Justice Powell, writing for the Court in 
McCleskey, observed that the statistical premise of discrimination 
advocated by the defendant--and now as title IX in the House bill--
``throws into serious question the principles that underlie our entire 
criminal justice system.''
  Mr. President, we will soon go to conference with the House to 
resolve the differences in the crime bills passed by our respective 
bodies. We have a good opportunity to pass a comprehensive anticrime 
measure which the American people deserve. If the conference report is 
to be adopted, it must be void of title IX from the House bill. This 
provision is opposed by the National Association of District Attorneys 
and the National Association of Attorneys General. These are the men 
and women who have the responsibility for prosecuting death penalty 
cases all across the Nation on behalf of the American people. I am 
hopeful that the House conferees will not let the American people down 
by insisting that this anti-death penalty provision remain in the 
conference report.
  I look forward to working with my Senate colleagues to ensure the 
passage of a responsible comprehensive anticrime bill and the removal 
of language from the House bill which will abolish the death penalty 
across the United States.
  Mr. DURENBERGER. Mr. President, I rise to explain why I will oppose 
the amendment expressing the sense of the Senate that the crime bill 
conferees should reject the Racial Justice Act.
  I make no secret of the fact that I am an opponent of the death 
penalty. I oppose it for philosophical reasons; I believe it 
perpetuates the cycle of violence and I believe it is unbecoming for a 
civilized nation. I also oppose capital punishment for practical 
reasons; there is no evidence that it deters violent crime, and it 
actually costs our criminal justice system more to execute a person 
that it does to incarcerate a person for life.
  However, even those who favor the death penalty should be concerned 
by evidence that it is not being applied fairly. We all want to believe 
that justice is blind in America. But I am not so naive as to trust 
that the ugliness of racial bias no longer festers in our criminal 
justice system.
  According to a significant body of evidence, minority defendants are 
much more likely than white defendants to be charged with a capital 
crime and sentenced to death, especially when the victim was white. All 
that the Racial Justice Act would do is to let defendants raise a 
question of unfairness when there is a pattern of racial disparity for 
crimes with similar factual circumstances.
  The Racial Justice Act would not guarantee that a death sentence will 
be overturned. The state can rebut the defendant's claim by showing 
nonracial reasons for the different treatment. A court would be allowed 
to find discrimination only if race is the only plausible explanation 
for the sentence of death. And even if the death sentence is vacated, 
defendants will not go free--their convictions will stand.
  Opponents of the Racial Justice Act claim that capital cases should 
be evaluated individually, not on the basis of statistical evidence. 
But when statistics show pervasive racial disparity for the same type 
of crimes, it suggests to me that racial bias might be infecting 
individual cases. The Racial Justice Act would allow courts to consider 
this suggestion.
  I believe this proposal is a modest step that will provide an 
additional measure of fairness in the system. If justice is truly 
blind, there is nothing to fear from the Racial Justice Act. That is 
why I support the House of Representatives' decision to include it in 
the crime bill and why I will oppose this amendment.
  Mr. DOLE. Mr. President, I want to take a few moments to express my 
support for the amendment offered by my distinguished colleague from 
New York, Senator D'Amato.
  Mr. President, last month, the House of Representatives took a big 
step backward in the war against crime by adopting something 
deceptively called the Racial Justice Act. The Racial Justice Act 
became title IX of the House-passed crime bill.
  Under title IX, a convicted murderer sentenced to death can challenge 
his capital sentence simply by offering evidence that ``at the time the 
death sentence was imposed, race was a statistically significant factor 
in decisions to seek or, impose the sentence of death in the 
jurisdiction in question.'' Statistical evidence that death sentences 
were being imposed significantly more frequently, upon persons of one 
race than upon persons of another race could be used to prove this 
point.

  The practical effect of all this is to prohibit the death penalty 
unless it is carried out strictly by-the-numbers, according to rigid 
death-penalty quotas. Under the Racial Justice Act, all a death-row 
inmate must do is show that there is a statistical disparity based on 
his race or the race of the victim, regardless of the specific facts of 
the specific case. Once the presumption of racial discrimination is 
raised through statistics, the Government must rebut this presumption 
by a preponderance of the evidence. The bottom line is that the 
Government would then have the burden of proving a negative--that 
racial factors had nothing to do with the capital sentence.

  Amazingly, the Racial Justice Act would apply retroactively--
potentially reopening the capital sentences of the nearly 4,000 murders 
now on death row. While all 4,000 may not succeed in getting their 
sentences reduced, compiling the relevant information from these cases 
will take many hours and cost the States millions and millions of 
dollars.
  Last week, the Chairman of the Judiciary Committee, Senator Biden, 
agreed to work in conference to ensure that the Racial Justice Act 
provisions apply only prospectively. That's a step in the right 
direction, but as they say, seeing is believing. And even if 
retroactivity is eliminated, we still should be concerned about the 
Racial Justice Act's prospective application.

  Mr. President, the Racial Justice Act is part of a long tradition 
here in Congress where bad legislation is given a great-sounding name. 
In some businesses, this is called false advertising. The bottom line 
is that the Racial Justice Act won't do much to advance the cause of 
civil rights, but it will do a great deal to clog the courts and make 
the death penalty virtually unenforceable in every jurisdiction where 
it is currently carried out.
  The Racial Justice Act mocks our system of individualized justice by 
allowing capital defendants to challenge their sentences using 
statistics alone--if the numbers don't know add up, then the sentence 
should be overturned. The Supreme Court of the United States properly 
rejected this fuzzy-headed reliance on statistics. And the Senate, to 
its credit, has voted thumbs-down on the Racial Justice Act on every 
occasion we have considered it.
  Not surprisingly, prominent law enforcement agencies like the 
National Association of Attorneys General, the National District 
Attorneys Association, and the National Troopers Coalition have all 
publicly opposed the Racial Justice Act.

  As we anticipate the Senate-House crime conference, it's critical 
that the Senate send a clear message that the so-called Racial Justice 
Act is unacceptable and should be rejected by the Senate and House 
conferees.
  Mr. WOFFORD. Mr. President, all of us must take very seriously the 
allegation that the death penalty is applied in a racially 
discriminatory manner. Some of the information I have seen to this 
effect is troubling and can not be disregarded. It seems to me self-
evident under our Constitution that if we are to have a death penalty, 
or any criminal penalties for that matter, they should be applied 
equally to everyone without regard to race.
  No one can ignore the historic existence of discrimination in our 
nation and in our criminal justice system. I fully support the 
provision in the Senate version of the crime bill that provides funding 
to states for analysis of the role that race plays in the State's 
criminal justice system. I note with interest that a Pennsylvania 
judge, Chief Judge Sylvia Rambo of the U.S. District Court for the 
Middle District of Pennsylvania, has recently asked the Justice 
Department to provide information on how it decides to seek the death 
penalty in federal prosecutions.
  However, I am not persuaded that the Constitution and the existing 
civil rights laws do not provide adequate protection against 
discrimination in the application of the death penalty. The 
Constitution provides for equal protection under the law, and if a 
state is applying the death penalty in discriminating manner, it can 
and should be challenged under the equal protection clause of the 14th 
amendment, or under existing civil rights statutes that enforce 
constitutional protections.
  Statistical evidence is an important tool in indicating 
discrimination in civil rights cases, but I am concerned that 
statistical debates about the application of the death penalty 
inherently threaten the principle of individual justice that is the 
cornerstone of our criminal justice system.
  Moreover, I do not think that the controversy over the Racial Justice 
Act proposal should jeopardize what we are now able to accomplish with 
this crime bill. It should not be used to undermine the consensus for 
passage of the largest federal crime prevention effort in our history. 
This is a crime bill that has the support of the majority of the 
Members of this Congress and one that will make an important 
contribution to the safety of all of our citizens regardless of race. 
We must move forward and pass this crime bill without prejudice and 
without further delay.
  I ask unanimous consent that today's New York Times article on this 
issue be included in the Record immediately following my remarks.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                [From the New York Times, May 11, 1994]

         U.S. Ordered to Tell How It Decides to Seek Executions

                         (By Steven A. Holmes)

       Washington, May 10.--A Federal judge in Pennsylvania has 
     ordered the Justice Department to explain why it is seeking 
     the death penalty against a black defendant in a murder case.
       The order, issued on May 3, is believed to represent the 
     first time a Federal judge has tried to pry open one of the 
     agency's most closely guarded secrets: why the Justice 
     Department believes that some murderers must die while others 
     may live.
       The timing is particularly crucial, since the order comes 
     as Congress makes its final push on a crime bill, the House 
     version of which would allow defendants to appeal their death 
     sentences by showing that judges and juries are racially 
     biased in calling for capital punishment. Four years ago, the 
     Senate defeated a similar measure.
       ``The timeliness of this ruling is important,'' said 
     Richard Dieter, director of the Death Penalty Information 
     Center, a nonprofit advocacy group that opposes capital 
     punishment. ``If this information comes out fairly soon, it 
     might influence a major piece of legislation.''
       Marty Carlson, an Assistant United States Attorney in 
     Harrisburg, Pa., said the Justice Department had not decided 
     whether to appeal the judge's order. The department has to 
     respond by Friday, and the judge wants the information before 
     trial starts on June 6.


                            drugs and death

       The order was issued by Sylvia H. Rambo, chief Federal 
     judge for the Middle District of Pennsylvania in a case 
     involving a New Yorker, Michael Murray, who is accused of 
     killing a minor drug dealer, Juan Carlos-Bacallo of 
     Harrisburg. Prosecutors said both men were part of a ring 
     that supplied crack in the Harrisburg area.
       Although almost all of the approximately 20,000 people 
     arrested in homicide cases every year are tried in state 
     courts, the number of Federal defendants who may be subject 
     to the death penalty will probably expand after the Federal 
     crime bill is approved. A House-Senate conference is to begin 
     work in the next few weeks on reconciling the versions of the 
     crime bill each chamber has passed.
       In March, a Congressional report found that of the 37 
     defendants the Justice Department has sought to execute for 
     drug-related murders since 1988, 33 are black or Hispanic. 
     During the Clinton Administration, all 10 of the defendants 
     whom Federal prosecutors have sought to put to death have 
     been black.
       In all of these cases, the defendants were prosecuted under 
     a 1988 law that allows the execution of drug kingpins who 
     have committed or ordered a murder.


                          dislike of scrutiny

       Justice Department officials deny that racial bias is a 
     factor in decisions to seek the death penalty. But officials 
     have refused to discuss the process or criteria used despite 
     repeated requests from Congress.
       ``That's the kind of information that they would like to 
     think of as internal,'' said Representative Melvin Watt, a 
     North Carolina Democrat who has been prodding the Justice 
     Department to provide data on capital punishment decisions. 
     ``Most people who deal in areas like this don't want to see 
     their decision scrutinized or second guessed.''
       Under Justice Department procedures, the United States 
     Attorneys around the country must obtain the approval of 
     senior Justice Department officials, including Attorney 
     General Janet Reno, to seek the death penalty.
       The far-reaching order by Judge Rambo, who was appointed by 
     President Jimmy Carter, came in response to a request by Mr. 
     Murray's lawyer, David Ruhnke. It requires the Justice 
     Department to turn over documents that cover virtually all 
     aspects of the decision to seek death, including:
       A list of all homicide cases since the passage of the 1988 
     law in which the defendant could be considered eligible for a 
     Federal death penalty prosecution.
       All requests and supporting documents submitted to the 
     Justice Department by United States Attorneys who have sought 
     permission to ask for the death penalty, even if permission 
     was denied.
       Documents explaining the Justice Department's ``standards, 
     policies, practices or criteria governing the approval or 
     disapproval'' of death penalty prosecutions.
       In some ways, Mr. Murray's case is emblematic of the 
     confusion surrounding the use by prosecutors of the drug 
     kingpin law.
       Even though Federal prosecutors are seeking the death 
     penalty against Mr. Murray under the 1988 law, Mr. Ruhnke 
     says his client has not been charged with controlling the 
     crack ring in Harrisburg. Federal prosecutors contend that 
     another man in the case, Jonathan Ray Bradley, was the 
     ringleader and that it was Mr. Bradley who ordered Mr. Murray 
     to kill Mr. Carlos-Bacallo.
       Yet, Federal prosecutors are not seeking the death penalty 
     against Mr. Bradley, who is also black.

  Mr. BRADLEY. Mr. President, I differ from some of my colleagues in 
that I believe that there is a place in our system of justice for 
capital punishment. At one extreme of the scales of justice, there are 
crimes that so brutally deny the humanity of the victim and the 
criminal that they merit only the most absolute punishment. But I know 
that none of my colleagues would disagree with my belief that there is 
no place in our system of justice for racial prejudice.
  The racial justice provisions of the House crime bill do not, as my 
colleague from New York contends, create race-weighted justice. They 
will not create a situation in which one person is put to death and 
another spared solely because one is white and one black. Instead, it 
is intended to determine whether there already is such a situation, and 
to help us put an end to it.
  I want to know, Mr. President, that there is plain justice in this 
country, not racial justice. I want to know that if a white man 
brutally murders a black man, his crime will be judged just as 
dispassionately as the crime of a black man who murders a white woman. 
Through most of our country's dark history of racial injustice, these 
crimes have not been treated alike. That's undeniable. Is this 
injustice part of our history, or part of our present? I want to know.
  There is plenty of reason to think that death sentences today are 
based on race. Since the death penalty was reinstated 18 years ago, and 
236 people were executed, only one white defendant has been executed 
for the murder of a black person. In Georgia, whites make up 40 percent 
of homicide victims, but 87 percent of the death sentences are in cases 
with white victims. The Racial Justice Act is as much about respect for 
victims' lives, black lives as well as white lives, as about the rights 
of criminals to unbiased justice.
  These statistics do not prove that each and every death sentence in 
those jurisdictions was a product of racial bias. But they force the 
question, and the Supreme Court has ruled that that question can be 
raised in court only with specific legislative action. The House 
version of the Racial Justice Act is the appropriate form for that 
legislative action to take. It gives prosecutors a chance to disprove 
the allegations of bias in sentencing, using the modest standard of a 
``preponderance of evidence.'' It requires a convict challenging a 
death sentence to a prove not just a statistical disparity, but that 
his or her individual sentence was also influenced by discrimination. 
It makes clear that a convict who successfully challenges a death 
sentence on these grounds will not be released, and not even 
automatically commuted to life in prison, but resentenced, under a fair 
procedure that could also end in another death sentence.
  My colleagues who oppose the Racial Justice Act contend that it will 
bring a de facto end to the death penalty, or that it is a backdoor 
means for death penalty opponents to eliminate it despite the broad 
public support for capital punishment. I am not an opponent of the 
death penalty. In fact, I think that the racial justice legislation is 
an essential protection to the death penalty. Shortly before he 
announced his intention to retire, Justice Harry Blackmun announced 
that he would no longer vote to carry out death sentences, given his 
conviction that the death penalty could not be administered fairly. 
This is not a radical view on Justice Blackmun's part. If patterns 
continue unchecked, more and more judges will hesitate to uphold death 
sentences that appear to have more to do with the race of the convict 
and the victim than with the barbarity of the crime. The racial justice 
legislation constitutes our first serious effort to ensure that the 
death penalty can be and is administered fairly.
  The arguments my colleague from New York uses in opposing the Racial 
Justice Act are valid only for those who can say with some assurance 
that race is not currently a factor in whether a criminal is sentenced 
to death or spared. If my colleagues believe that bias persists in 
sentencing, or want further assurance that justice is blind, they 
should join me in supporting the racial justice language as a necessary 
safeguard to the death penalty itself.
  Mrs. FEINSTEIN. I rise, Mr. President, to address the nonbinding 
amendment by Senator D'Amato to instruct the Senate's crime bill 
conferees to reject the Racial Justice Act as framed in the House crime 
bill. I support the amendment today, not because I oppose racial 
justice or believe that our Nation's judicial system is free of racial 
bias. To the contrary, I concur with Chairman Biden that inequities in 
the present system can and must be redressed.
  After much thought about the specific provisions of the House crime 
bill, however, I found myself in agreement with California's attorney 
general and all 58 of the State's district attorneys. If adopted as 
written, the House bill creates a grave risk of intro- ducing even 
greater delay in capital cases than that now occasioned by abuse of 
habeas corpus proceedings.
  Moreover, I am acutely aware of the problems that retroactive 
application of the House measure would cause in California and 
elsewhere. While an informal agreement to alter that part of the Racial 
Justice Act reportedly has been struck, I feel it important to indicate 
my strong opposition to retroactivity. My vote in support of the 
amendment before us should be taken as such.
  Having said that, Mr. President, I do not accept that Congress cannot 
and should not craft a variation of the House's measure in conference, 
or subsequently as a stand-alone bill. I look forward to working 
closely with Senator Kennedy, members of the Congressional Black 
Caucus, and other committed legislators to craft a bill premised on the 
equally valid needs to redress inequities in our criminal justice 
system and achieve closure, after due process, in capital cases.
  There is certainly ground for us to mine together in this pursuit, 
Mr. President. Limitation of the act to Federal capital cases should be 
actively considered. Clear statutory definitions of what forms of 
evidence will be admissible in making a racial justice claim can be 
crafted. Judges can and should be given guidance by Congress as to what 
constitutes a statistically significant factor in decisions to impose 
the death penalty. Race can and must be defined. What to do in cases 
where the defendant is of mixed race should be addressed. Reasonable 
time limits for making a racial justice claim can be imposed. 
Discussion of what cases should be considered similar for purposes of 
the Act is also necessary.
  Clearly, there is work that must be done, Mr. President. I am eager 
to do it.
  Mr. KENNEDY. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator has 7\1/2\ minutes remaining.
  Mr. KENNEDY. The other side has how much time?
  The PRESIDING OFFICER. The other side has 8 minutes and 19 seconds.
  Mr. KENNEDY. I yield myself 4 minutes, Mr. President.
  First of all I congratulate my friend and colleague from Illinois. 
She has spoken eloquently and persuasively on this issue, as she has 
when she has addressed similar issues. Over the time that she has been 
a Member she has made a very important difference in this body. 
Although the Chamber is not filled this afternoon, I know she speaks 
for millions of Americans, not only from her State but also across this 
Nation. I wish all of our colleagues could have heard her presentation.
  We are back at an issue which is as old as this country. The issue of 
race discrimination was enshrined in the Constitution of the United 
States, and this Nation over a long period of time has had to work to 
rid itself of that particular stain. As the good Senator from Illinois 
pointed out based on her visit recently to South Africa and all the 
efforts that are being made there today, that country is also 
attempting to deal with that.
  The Members of this body understand the history, the difficulty we 
had in America in the time of the Civil War--the bloodshed and violence 
that took place and the pain and agony that affected so many parts of 
our Nation during the Civil War.
  Then, fortunately, we had a leader in the late 1950's and the early 
1960's who challenged this Nation to put this chapter of our history 
behind us. Along with Dr. King, we remember the extraordinary, 
courageous votes that took place in the Fifth Circuit Court of Appeals 
and also the extraordinary decision in the Brown case in 1954, this 
Nation really confronted the issue of race. We made extremely important 
progress.
  We know progress in some areas has not been made, but we have made an 
important downpayment on the issues of race in our society --really, I 
think, because we began to address that issue.
  We saw also progress made in other areas where we have discriminated 
against people: In terms of religion and ethnicity --we have moved 
beyond that--in terms of disability, gender discrimination, other forms 
of discrimination. America is moving closer to the real America, which 
will be to finally eliminate these stains of discrimination that go 
back to our earliest history as a nation.
  It has been a long and evolving process. I have had the good fortune 
over the time that I have been in the Senate to have witnessed much of 
the progress we have made. It was made with the assistance of both 
sides of the aisle, Republican and Democrat alike. That has been the 
reason that we have been able to make progress on something which is of 
such enormous importance and consequence.
  You can say, ``Why now? Why this issue? Why should we be discussing 
race at the time when we are considering instructions to the crime bill 
conferees?''
  It is very simple and very well understood. The issue of whether we 
will have the death penalty has virtually been resolved. Some 26 or 27 
Members, including myself, are opposed to the death penalty. Now that 
issue has been resolved, this country is going to go ahead with the 
death penalty. But the fact of the matter is, the expansion of the 
death penalty in the Senate's bill to 50 more offenses, and the 
expansion in the House bill to 66 offenses, that massive expansion 
brings back into mind the very clear evidence of race discrimination in 
capital sentencing. We have seen the results of different State 
studies, different law review articles, different work that has been 
carried out throughout the country. The statistics overwhelmingly prove 
that the application of the death penalty is affected on the basis of 
race both in terms of the defendant and in terms of the victim.
  We included the racial justice provision in the 1989 crime bill which 
I offered and which was favorably reported from the Judiciary 
Committee. It was repealed on the floor of the Senate. Earlier we 
passed legislation requiring a GAO study. People--men and women in the 
Senate--said we are glad to have those State studies but we need a 
final study. Let us get the GAO to really do the final study on this 
particular issue.
  I yield myself 3 additional minutes.
  So we had the GAO study. And the GAO study that has been put in the 
Record in the past reaffirms--reaffirms--reaffirms everything that we 
have pointed out here in the course of this debate.
  Why is it--why is it that this body was prepared to use statistics 
back in 1964 on the issues of employment; why is it that in 1965 we 
were prepared to use statistics on voting; why is it that we were 
prepared to use statistics in 1968 on the basis of housing; why is it 
that in 1986 the Supreme Court reached the issue of statistics in 
considering the composition of juries in this country; and why is it 
that the Supreme Court this year, in terms of gender discrimination on 
juries, used statistics again? In each and every one of those times 
that involved the issue of race, the Congress, the Supreme Court, and 
the American people have understood the importance of using statistics. 
And we are asking that it be considered again, not in the way, the 
form, or shape that we had it previously, but in an entirely different 
form--entirely different shape, than was done in the previous way.
  Why is it that they say, ``Oh, no, this is just an excuse to end the 
death penalty?'' In the ultimate, ultimate, ultimate decision about our 
society and the difference of life and death, it is OK for an issue of 
jobs or housing, it is OK in the jury, but no way--no way--that we are 
going to even consider the very modest provisions that have been 
included in the House crime bill.
  And the eagerness of this body to intruct the conferees on this 
measure is striking. Hundreds of different measures on that proposal, 
but it seems someone says: Let us take the race issue. Let us go up and 
beat up on the race issue. Let us make all of these comments and 
statements about how judges cannot really handle statistics.
  The Senators who have spoken on this issue know very well about 
rebuttable presumptions and how they can be rebutted for any of the 
different criminals that have been referenced on the floor of the U.S. 
Senate. Of course, they may be rebutted on a basis of past criminal 
activity. But this is a core issue, and it is part of the unfinished 
agenda against discrimination in this society, make no mistake about 
it, and it is not going away. Members will have a chance to vote on 
this issue time in and time out, time in and time out until we do 
something about it.
  So I hope that this amendment is defeated. I hope we can go to 
conference and come out with a provision that will do the best that we 
possibly can to eliminate race discrimination in the application of the 
death penalty. We can do no less. We will be a stronger country when we 
do.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. D'AMATO addressed the Chair.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. D'AMATO. Mr. President, I am just going to speak for a few 
seconds and then recognize the Senator from Washington for 3 minutes.
  First of all, my colleague from Massachusetts indicates that this is 
a modest proposal. Let me say that I would term this proposal as 
nothing more than an exercise in political correctness that is being 
injected into our legal system. It has nothing to do with the guilt or 
innocence of a person. It would totally put that aside, making it 
irrelevant and is absolutely--absolutely--intended to do away with the 
death penalty. And that is in fact what it does.
  If one were to read section (C)(1), in effect, it eliminates the 
death penalty. You have to execute people as relates to equal numbers. 
John Wayne Gacy, a killer, could come and make a claim statistically: 
``You haven't killed people in equal numbers.'' He tortured and killed 
33 young men.
  What a facade, a smokescreen. They call it ``racial justice.'' And 
then the rest of us are supposed to be quiet because we do not want to 
be accused of being against racial justice. Of course we want justice, 
as that liberty of justice stands that there should never be a decision 
made on the basis of discrimination--on the basis of race or color. I 
understand a little something about discrimination.
  Let me suggest, this is just a harbinger of things to come. If we are 
going to say, as relates to the imposition of any penalty, what about 
the penalties that come 20 years to life for rape, robbery? Should we 
not have, and would it not logically follow, that the same argument and 
the same statistics be utilized?
  Imagine, after a trial, a person is found guilty beyond a reasonable 
doubt--and, by the way, in the Senate version, we require before the 
implementation of the death penalty that there be certification by each 
and every juror that the judge charged specifically that race not be a 
part of that decision, each and every one has to certify that they have 
made their decision without there being any regard to the person's race 
or color. No discrimination. We put that in there.
  This is a charade, and it is a back-door attempt by those who are 
opposed to the death penalty to say, ``Well, we added 60 more 
provisions.'' And yet with this one provision, there would be no 
implementation of the law, regardless of race or color. Even John Wayne 
Gacy would not have the death penalty imposed upon him as a result of 
this so-called innocent and modest program.
  I yield 2 minutes to the distinguished Senator from Washington.
  The PRESIDING OFFICER. The Senator from Washington is recognized.
  Mr. GORTON. Mr. President, despite the heated rhetoric that title IX 
of the House-passed crime bill evokes, three facts are inescapable and 
irrefutable.
  One, despite it's clever title, the Racial Justice Act would not tend 
toward eliminating racially discriminatory sentencing in our criminal 
justice system; it actually institutionalizes overt racism and 
radically alters fundamental concepts of fairness in our criminal 
justice system.
  Two, despite claims to the contrary by its advocates, many of whom 
openly admit their hostility to the imposition of the death penalty 
under any circumstances, that the provision will not abolish the death 
penalty; title IX overturns Supreme Court precedent and would make the 
death penalty in many jurisdictions nearly impossible to carry out.
  Third, despite all the talk of concern for victims of violent crime, 
title IX, if enacted, will result in less justice for victims and 
families of victims of violent crimes, no matter what color of their 
skin.
  A simple reading of the provisions of title IX leads to my three 
conclusions.
  The first section begins with a paragraph that only restates current 
law:

       No person shall be put to death under color of State or 
     Federal law in the execution of a sentence that was imposed 
     based on race.

  This concept is a fundamental and established principle of American 
constitutional law with which no reasonable or fair person would 
dispute.
  The second paragraph states that:

       An inference that race was the basis of a death sentence is 
     established if valid evidence is presented demonstrating 
     that, at the time the death sentence was imposed, race was a 
     statistically significant factor in decisions to seek or to 
     impose the sentence of death in the jurisdiction in question.

  Alarm bells should be ringing in the heads of anyone who is remotely 
familiar with our criminal justice system. How is the validity of 
evidence defined? Under what standard of proof can the evidence be 
rebutted? How are statistics of other cases useful an determining the 
intent of justice for an individual who committed an individual act of 
murder? How does this serve the need of justice for victims and their 
families?
  Some of these questions are answered in the provisions of title IX 
while others are not.
  Relevant evidence is described in the third paragraph:

       Evidence relevant to establish an inference that race was 
     the basis of a death sentence may include evidence that death 
     sentences were, at the time pertinent under subsection (b) 
     being imposed significantly more frequently in the 
     justisdictions in question--
       (1) upon persons of one race than upon persons of another 
     race; or
       (2) as punishment for capital offenses against persons of 
     one race than as punishment for capital offenses against 
     persons of another race.

  The next paragraph states that judges will decide the validity of the 
evidence and whether it provides a basis for the inference. The 
evidence can only be rebutted by ``a preponderance of the evidence.'' 
Moreover the legislation requires that:

       Unless it can show that the death penalty was sought in all 
     cases fitting the statutory criteria for imposition of the 
     death penalty, the government cannot rely on mere assertions 
     that it did not intend to discriminate or that the cases in 
     which the death was imposed fit the statutory criteria for 
     imposition of the death penalty.

  These provisions lead to quotas in sentencing--a radical departure 
from fundamental American justice based on individual rights and 
responsibilities that is enshrined in our Constitution and Bill of 
Rights. In order for prosecutors to pursue the death penalty for an 
individual charged with a heinous act of murder, the prosecutor would 
first have to determine whether his past prosecutions and imposition of 
the death penalty in his area matched the racial makeup of other 
murderers as well as the racial makeup of victims. If it did not, no 
matter how horrible the crime, he could not possibly hope to win the 
death penalty for that individual.
  That means a Caucasian drug dealer who kills an African-American 
police officer in cold blood in a State that did not have a statutorily 
required statistically proportionate representation of minorities on 
death row, could not receive the death penalty. This lunacy inspired 
the prosecutors in my State to write me stating that:

       We also oppose the so called Racial Justice Act. * * * Our 
     belief is that these provisions will effectively abolish the 
     death penalty under the guise of addressing racial 
     disproportionality. The provisions effectively establish a 
     quote for specific groups which does not reflect individual 
     behavior. We support application of all laws in a racially 
     neutral manner, as we support application of all laws in a 
     racially neutral manner, but this legislation does not 
     provide for that.

  They are the ones, Mr. President, who have to explain to the families 
of murder victims that the justice they desire is impossible because 
the victim or the offender had the wrong skin color. It is 
inconceivable that this is racial justice.
  Mr. President, it is clear then that the provisions do not address 
just the concerns of racism against minorities in some jurisdictions. 
It overhauls our entire approach to criminal justice and sets 
unprecedented burdens to justice for victims of all races. It is a 
mockery of the concept of individual justice and trial by jury--the 
foundations for safeguarding our liberties.
  Proponents of title IX also assert that it would not overturn 
established Supreme Court decisions upholding the death penalty. The 
reading of the Court's opinion in McCleskey versus Kemp concludes 
otherwise. In that 1986 case, the petitioner, who was African-American, 
claimed that a statistical study proved that imposition of the death 
penalty in his State was a violation of the equal protection clause of 
the 14th amendment as well as the ``cruel and unusual punishment'' 
prohibitions of the 8th amendment. The Court disagreed, and the opinion 
by Justice Powell stated that:

       * * * Petitioner must prove that the decisionmakers in his 
     case acted with discriminatory purpose. Petitioner offered no 
     evidence specific to his own case that would support an 
     inference that racial considerations played a part in his 
     sentence, and the Baldus study is insufficient to support an 
     inference that any of the decisionmakers in his case acted 
     with discriminatory purpose. This Court has accepted 
     statistics as proof of intent to discriminate in the context 
     of a State's selection of the jury venire and in the context 
     of statutory violations under Title VII of the Civil Rights 
     Act of 1964. However, the nature of the capital sentencing 
     decision and the relationship of the statistics to that 
     decision are fundamentally different from the corresponding 
     elements in the venire-selection or Title VII cases. 
     Petitioner's statistical proffer must be viewed in the 
     context of his challenge to decisions at the heart of the 
     State's criminal justice system. Because discretion is 
     essential to the criminal justice process, exceptionally 
     clear proof is required before this Court will infer that the 
     discretion has been abused.

  There has been some confusion as to whether the Court actually held 
that the study in this case was valid or not. The seventh footnote, 
however, explains that:

       As did the Court of Appeals, we assume the study is valid 
     statistically without reviewing the factual findings of the 
     District Court. Our assumption that the Baldus study is 
     statistically valid does not include the assumption that 
     study shows that racial considerations actually enter into 
     any sentencing decisions in Georgia. Even a sophisticated 
     multiple-regression analysis such as the Baldus study can 
     only show a risk that the factor of race entered into some 
     capital sentencing decisions and a necessarily lesser risk 
     that any particular sentencing decision.

  Clearly, the language in title IX lowers the standard by which courts 
would be able to use statistical evidence beyond that which was 
established in McCleskey. In a 1989 Vanderbilt law review article, 
Prof. James Acker notes that:

       One year after McCleskey was decided, Federal legislation 
     was introduced in Congress that would have the effect of 
     countermandering much in that decision. The proposed Racial 
     Justice Act of 1988 specifies that broad based evidence of 
     racial discrimination, such as was at issue in McCleskey, 
     prima facie establishes that capital punishment within a 
     State is being administered unlawfully and prohibits 
     executions unless the apparent racial disparities are 
     explained on the basis of legally permissible factors.

  As I understand it, this measure, although changed somewhat since its 
original introduction, has become even broader in its generality--
making Acker's conclusion still relevant. In addition, this morning's 
paper quotes constitutional scholar Bruce Fein as stating that:

       * * * statistics that McCleskey held insufficient to prove 
     unconstitutional racial discrimination could block death 
     sentences under the Racial Justice Act.

  The sound reasoning of the Court in the McCleskey decision which has 
been followed by more than 30 Federal district and appellate courts. 
Two specific appellate level decisions reflect the importance of 
maintaining the evidentiary standards set forth in McCleskey.
  In Richmond versus Lewis, a ninth circuit opinion, the panel held 
that a defendant who offered statistics to show discrimination based on 
race, sex, and economic status failed because:

       To require the district court to weigh this evidence would 
     be to suggest that Richmond's death sentence could 
     conceivably be invalidated solely on the basis of his 
     physical or social affinity to other defendants who are not 
     now before this court but who may have suffered 
     unconstitutional discrimination in their receipt of the same 
     sentence.

  In Harris versus Pulley, another ninth circuit opinion, the court 
rejected statistical studies of general discrimination by age and sex 
by quoting McCleskey. The appellate court held:

       Not only did his statistics not entitle him to discovery of 
     an evidentiary hearing on this claim, but they do not present 
     the exceptionally clear proof required to demonstrate 
     purposeful discrimination.

  By substituting the ``exceptionally clear proof'' standard of 
McCleskey, title IX of the House-passed crime bill will allow countless 
convicted murders to avoid justice through abuse and manipulation of 
statistical studies.
  While proponents of title IX correctly state that Justice Powell 
deferred to changes that State legislatures or Congress may make 
regarding evidence eligible in capital sentencing, that invitation was 
accompanied by a stern warning on the significance of jury discretion 
and its connection to criminal justice--a reminder that is quite useful 
and necessary for this debate.
  Citing Supreme Court precedent, Powell wrote:

       Because of the risk that the factor of race may enter the 
     criminal justice process, we have engaged in unceasing 
     efforts to eradicate racial prejudice from our criminal 
     justice system. Our efforts have been guided by our 
     recognition that the inestimable privilege of trial by jury * 
     * * is a vital principle, underlying the whole administration 
     of criminal justice. Thus, it is the jury that is the 
     criminal defendant's fundamental ``protection of life and 
     liberty against race or color prejudice. * * * The capital 
     sentencing decision requires the individual jurors to focus 
     their collective judgment on the unique characteristics of a 
     particular criminal defendant. It is not surprising that such 
     collective judgments often are difficult to explain. But the 
     inherent lack of predictability of jury decisions does not 
     justify their condemnation. * * * McCleskey's argument that 
     the Constitution condemns the discretion allowed 
     decisionmakers in the Georgia capital sentencing system is 
     antithetical to the fundamental role of discretion in our 
     criminal justice system.

  Finally, title IX is misguided in its priorities. While Americans 
increasingly lack faith in a criminal justice system that does not 
deliver justice for victims, the House of Representatives accepts these 
provisions which are meant to slow, not expedite, justice for convicted 
murderers.
  In my own State, we have waited for 12 long years with the victims of 
Charles Campbell's murders for justice to be served, and we are still 
waiting due to one appeal after another. This Senate must get the 
message that it is the victims of death row inmates that deserve our 
energies and efforts.
  Title IX is overwhelmingly opposed by those who attempt to administer 
justice on a daily basis, but who find themselves bound by laws that 
regularly serve the criminal instead. The misnamed Racial Justice Act 
is just such as law.
  Let me make it clear for the record, this Senator, as I believe most 
Senators, believes there does exist some statistical racial disparity 
in the application of the death penalty in some jurisdictions and 
certain jurors, inevitably and unfortunately, do not follow their sworn 
duty to be objective. The GAO study does reach that disturbing 
conclusion.
  Common sense indicates, however, that collective comparisons of 
individual cases can draw only superficial conclusions that may 
conflict with other studies. For instance, in his testimony before the 
House Judiciary Committee last fall, Paul Kamenar of the Washington 
Legal Foundation discussed a 1985 Bureau of Justice Statistics report 
that concluded, according to him that, ``Whites are 36 percent more 
likely to be sentenced to death than their black counterparts.'' Mr. 
Kamenar concludes by stating, however, that, ``The myriad and disparate 
factors in each particular murder case simply make it impossible to 
lump all capital cases together for comparative purposes.''
  Conflicting studies do not make the need to address evidence of 
racial disparity in some jurisdictions less significant. We cannot 
tolerate discrimination in any form in the application of our laws. By 
using limited evidence as an all-out assault on the death penalty, 
however, title IX does not even begin to address this disparity in a 
remotely constructive and meaningful manner. It takes statistical 
patterns of racism in some jurisdictions and installs a sweeping and 
unworkable mandate on all jurisdictions.
  In conclusion, Mr. President, if we have the courage to do our jobs 
and judge this legislation on the merits, we will conclude for the 
Racial Justice Act, as Justice Powell did in the McCleskey case, that:

       Petitioners claim, taken to its logical conclusion, throws 
     into serious question the principles that underlie the entire 
     criminal justice system.

  Similarly, title IX of the House crime bill, if enacted into law, is 
a radical change that the American people will quickly recognize as 
injustice. I trust that is why this Senate has rejected versions of the 
Racial Justice Act three times and why it will do so again by voting 
for the D'Amato amendment. If we fail, we have the families of murder 
victims--which includes all races--to answer to.
  Mr. KENNEDY. Will the Senator yield for 15 seconds? I ask for 15 
seconds.
  Mr. D'AMATO. Yes.
  Mr. KENNEDY. Will the Senator just include the rest of the Powell 
ruling that invited the legislatures to make a judgment on this very 
issue, to make such a determination?
  Mr. GORTON. Mr. President, I ask unanimous consent to print more 
extensive remarks in the Record.
  There being no objection, the remarks were ordered to be printed in 
the Record as follows:

       McCleskey's arguments are best presented to the legislative 
     bodies. It is not the responsibility--or indeed even the 
     right--of this Court to determine the appropriate punishment 
     for particular crimes. It is the legislatures, the elected 
     representatives of the people, that are ``constituted to 
     respond to the will and consequently the moral values of the 
     people.'' Furman v. Georgia, 408 U.S., at 383, 92 S.Ct., at 
     2800 (Burger, C.J., dissenting). Legislatures also are better 
     qualified to weigh and ``evaluate the results of statistical 
     studies in terms of their own local conditions and with a 
     flexibility of approach that is not available to the 
     courts.''

  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. D'AMATO. How much time do I have left?
  The PRESIDING OFFICER. One minute forty seconds left.
  Mr. D'AMATO. Mr. President let me ask that a letter dated May 6, 
1994, which was sent to the House and Senate conferees be made a part 
of the Record.
  Let me say this letter was signed by 30 attorneys general from across 
the Nation, Democrats, Republicans--30 of our attorneys general in our 
States. They wrote a letter to the crime bill conferees expressing 
their opposition to this legislation, the legislation we are attempting 
to deal with. Let me quote one part of their letter, as it relates to 
the provision that the Senator from Massachusetts spoke to.
  They write and I quote: ``Instead of protecting against race bias,'' 
the legislation ``would impose a quota system on the imposition of the 
death penalty.''
  And they conclude: ``This is unacceptable.''
  Mr. President, this is from 30 attorneys general across this Nation. 
Are we supposed to believe that they are opposed to racial justice, men 
and women who have given their life to the enforcement of the law, 
equal justice? It is incomprehensible. As a matter of fact, those who 
come forth with this label of racial justice somehow are supposed to 
duck down because people do not have an opportunity to really 
understand.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. D'AMATO. Mr. President, nothing more needs to be said.
  I ask unanimous consent that this letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:
                                                      May 6, 1994.
       Dear House-Senate Conferees: On April 21, 1994, the U.S. 
     House of Representatives passed the omnibus crime bill, H.R. 
     4092. One feature of this legislation (included in Title IX) 
     is a measure that would allow a capital defendant to make a 
     statistical showing from unrelated cases as the basis for 
     appellate or collateral relief. The Senate omnibus crime 
     bill, now included in H.R. 3355, adopted in November 1993, 
     contains no such legislation.
       We are a bipartisan group of chief law enforcement officers 
     of our respective States. We write in strong opposition to 
     any omnibus crime bill reported by the House-Senate 
     Conference Committee which may include any version of the so-
     called Racially Discriminatory Capital Sentencing Act, or any 
     other statistical showings legislation which overturns the 
     U.S. Supreme Court's holding in McCleskey v. Kemp, 481 U.S. 
     279 (1987). Such statistical showings legislation seriously 
     undermines enforcement of the death penalty.
       In McCleskey, the U.S. Supreme Court rejected a claim which 
     would allow capital defendants to make a statistical showing 
     of potential race discrimination from unrelated cases as a 
     basis for collateral relief. The Court correctly held that a 
     defendant who contests his capital sentence on the basis of 
     racial discrimination is required to prove that the decision 
     makers in his or her own case cited with a discriminatory 
     purpose.
       We are strongly opposed to any race bias in our criminal 
     justice system, and believe that all criminal penalties 
     should be administered without regard to the race or color of 
     the defendant or the victim. Instead of protecting against 
     race bias, the Racially Discriminatory Capital Sentencing Act 
     would implore a quota system on the imposition of the death 
     penalty. This is unacceptable.
       Below is the relevant language of the March 21, 1994 
     resolution of the National Association of Attorneys General 
     (NAAG) which sets forth our opposition to the statistical 
     showings legislation now found in Title IX of H.R. 4092:
       Whereas, the U.S. House Judiciary Committee recently 
     reported out [and the U.S. House of Representatives has now 
     adopted]: * * * (2) a measure that would allow a capital 
     defendant to make a statistical showing from unrelated cases 
     as the basis for appellate or collateral relief;
       Now, therefore, be it Resolved, That the National 
     Association of Attorneys General:
       1. strongly supports all efforts to strike * * * from an 
     omnibus anti-crime bill: * * * any statistical showings 
     legislation; and
       2. opposes * * * [H.R. 4092, title IX], or any measure that 
     would allow a capital defendant to make a statistical showing 
     from unrelated cases as the basis for appellate or collateral 
     relief; * * * (Italics added.)
       As the chief law enforcement officers of our respective 
     States, we are profoundly disturbed that this legislation, in 
     its current form, or any version thereof, will (1) 
     essentially stop the prosecution and enforcement of capital 
     cases; (2) allow current death row inmates to reopen already 
     adjudicated claims or bring new claims based upon a 
     statistical showing from unrelated cases; and (3) jeopardize 
     the enactment of other measures included in the omnibus crime 
     bill.
       This open-ended legislation permits the capital defendant 
     to establish an inference that race was a factor in seeking 
     or imposing the death penalty in his or her own case based on 
     the same decisions made in other murder cases. Following such 
     an inference, under the bill, ``the death sentence may not be 
     carried out unless the government rebuts the inference.'' 
     However, review of the bill language shows that it would be 
     extremely difficult (if not impossible, and only at great 
     time and cost to the State) to rebut this inference, as the 
     bill imposes severe constraints on the ability of the 
     government to rebut the statistical case. For this reason, 
     the legislation essentially abolishes the death penalty.
       Specifically, the bill provides ``[u]nless [the government] 
     can show that the death penalty was sought in all cases 
     fitting the statutory criteria for imposition of the death 
     penalty, the government cannot rely on mere assertions that 
     it did not intend to discriminate or that the cases in which 
     death was imposed fit the statutory criteria for imposition 
     of the death penalty.'' This means that in order to rebut the 
     inference that racial factors were involved in any particular 
     murder cases, the government must review all charging 
     decisions of capital eligible cases, whether or not charged 
     as a capital crime, all decisions to seek or not seek the 
     death penalty, and all decisions of juries to impose or not 
     impose the death penalty. This virtually-impossible review 
     would be necessary under the bill in order to demonstrate 
     that these decisions were not racially motivated.
       The initial ``inference'' of racial discrimination under 
     the bill, however, fails to take account of the fact that 
     each murder case has unique factual circumstances, different 
     strength of evidence, and different mitigating and 
     aggravating factors relating to each defendant, which may 
     account for the ultimate decisions to seek or not seek, or to 
     impose or not impose, the death sentence in those particular 
     cases. Statistics from unrelated cases should never be used 
     to determine the outcome of any criminal case, which should 
     instead be based solely on whether the charged offense was 
     committed by the defendant. The difficulty in rebutting an 
     ``inference'' of racial discrimination based on alleged 
     statistical disparities from multiple unrelated cases is so 
     profound and so potentially expensive as to essentially bring 
     the prosecution of capital cases to a halt.
       Therefore, consistent with the NAAG resolution, we support 
     any efforts to eliminate the Racially Discriminatory Capital 
     Sentencing Act from the omnibus crime bill. This includes 
     instructions in the House or Senate to the conferees to take 
     whatever measures are necessary to ensure that no crime bill 
     is made law with these provisions in it.
       Further, we strongly believe that statistical showings 
     legislation, by whatever name it is referred to, has proven 
     to be a contentious issue in prior Congresses and in fact was 
     in large part responsible for the deadlock on the omnibus 
     crime bill in past Congresses. The need to address violent 
     crime is to urgent to delay deliberation on other important 
     measures to combat crime. If Congress is serious about 
     enacting an omnibus crime measure, it must strike the so-
     called Racially Discriminatory Capital Sentencing Act, which 
     will only detract from the ultimate passage of the crime 
     bill.
           Sincerely,
         Larry Echohawk, Attorney General of Idaho; Daniel E. 
           Lungren, Attorney General of California; James S. 
           Gilmore, Attorney General of Virginia; Frankie Sue Del 
           Papa, Attorney General of Nevada; Joseph P. Mazurek, 
           Attorney General of Montana; Robert A. Butterworth, 
           Attorney General of Florida; Dan Morales, Attorney 
           General of Texas; Ernest D. Preate, Jr., Attorney 
           General of Pennsylvania; Grant Woods, Attorney General 
           of Arizona; Jan Graham, Attorney General of Utah; 
           Deborah T. Poritz, Attorney General of New Jersey; 
           Joseph B. Meyer, Attorney General of Wyoming; Micke 
           Moore, Attorney General of Mississippi; Chris Gorman, 
           Attorney General of Kentucky; Jimmy Evans, Attorney 
           General of Alabama; Don Stenberg, Attorney General of 
           Nebraska; Jeffrey R. Howard, Attorney General of New 
           Hampshire; Robert T. Stephan, Attorney General of 
           Kansas; Gale A. Norton, Attorney General of Colorado; 
           Jeffrey B. Pine, Attorney General of Rhode Island; 
           Susan B. Loving, Attorney General of Oklahoma; 
           Malaetasi Togafau, Attorney General of American Samoa; 
           Charles M. Oberly, III, Attorney General of Delaware; 
           Mark W. Barnett, Attorney General of South Dakota; John 
           M. Bailey, Chief State's Attorney of Connecticut; Tom 
           Udall, Attorney General of New Mexico; T. Travis 
           Medlock, Attorney General of South Carolina; Michael J. 
           Bowers, Attorney General of Georgia; Richard P. Ieyoub, 
           Attorney General of Louisiana; Jeremiah W. (Jay) Nixon, 
           Attorney General of Missouri;

  The PRESIDING OFFICER. The question is on agreeing to the amendment 
of the Senator from New York. The yeas and nays have been ordered. The 
clerk will call the roll.
  The bill clerk called the roll.
  Mr. FORD. I announce that the Senator from Alabama [Mr. Shelby] is 
absent because of illness.
  The PRESIDING OFFICER (Mr. Conrad). Are there any other Senators in 
the Chamber who desire to vote?
  The result was announced--yeas 58, nays 41, as follows:

                      [Rollcall Vote No. 106 Leg.]

                                YEAS--58

     Baucus
     Bennett
     Bingaman
     Bond
     Brown
     Bryan
     Bumpers
     Burns
     Byrd
     Coats
     Cochran
     Conrad
     Coverdell
     Craig
     D'Amato
     Danforth
     DeConcini
     Dole
     Domenici
     Dorgan
     Exon
     Faircloth
     Feinstein
     Ford
     Gorton
     Graham
     Gramm
     Grassley
     Gregg
     Hatch
     Heflin
     Helms
     Hollings
     Hutchison
     Johnston
     Kassebaum
     Kempthorne
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Pressler
     Pryor
     Reid
     Roth
     Simpson
     Smith
     Specter
     Stevens
     Thurmond
     Wallop
     Warner
     Wofford

                                NAYS--41

     Akaka
     Biden
     Boren
     Boxer
     Bradley
     Breaux
     Campbell
     Chafee
     Cohen
     Daschle
     Dodd
     Durenberger
     Feingold
     Glenn
     Harkin
     Hatfield
     Inouye
     Jeffords
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Mathews
     Metzenbaum
     Mikulski
     Mitchell
     Moseley-Braun
     Moynihan
     Murray
     Packwood
     Pell
     Riegle
     Robb
     Rockefeller
     Sarbanes
     Sasser
     Simon
     Wellstone

                             NOT VOTING--1

       
     Shelby
       
  So the amendment (No. 1685) was agreed to.
  Mr. D'AMATO. Mr. President, I move to reconsider the vote.
  Mr. FORD. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN. Mr. President, we are about to vote on final passage of S. 
1935, a bill which would dramatically tighten the congressional gift 
rules. If we pass this measure--as I am confident we will--this will be 
a truly historic vote.
  This bill, if enacted, would ban gifts of meals, tickets to sporting 
events, so-called recreational travel, and virtually anything else a 
special interest might offer to a Member of Congress. It would also 
prohibit all privately funded travel not related to official business 
and establish strict new disclosure requirements for those travel 
reimbursements that may be accepted.
  These are the toughest gift rules ever approved by either House of 
Congress. If adopted, they will send a message that business as usual 
is no longer acceptable in this town.
  Mr. President, the Senate is a highly ethical body. The problem is 
that the public does not appear to see it that way--and apparently will 
not see it that way until we adopt new rules that rid us of any 
appearances of favoritism or unequal access.
  That appearance, as unfair as it may be, is poison for public 
confidence in government. It is not good for the Congress and it is not 
good for the country. It is my hope that, with this bill, we can take a 
significant step toward bolstering public confidence in this 
institution.
  Mr. President, this bill would not have been possible without the 
contributions of many Members of Congress. I would particularly like to 
thank Senators Mitchell and Glenn, the majority leader and the chairman 
of our committee, for their guidance and support; Senator Cohen, the 
ranking minority member of my subcommittee, for his able assistance in 
managing the bill on the floor; and Senator Ford, the chairman of the 
Rules Committee, for his valuable input and assistance.
  In addition, I want to acknowledge the efforts of Senators 
Lautenberg, Wellstone, and Feingold. Even though the bill we are voting 
on today is significantly different from their proposal, it shares the 
same goal.
  We would not have been here without the strength and perseverence of 
Congressman John Bryant, who successfully managed a string gift ban 
bill to passage on the House side earlier this year. Although 
differences remain between the House and Senate gift provisions, no one 
should doubt that both are tough measures which are intended to change 
the way we do business around here.
  Mr. President, in view of the extensive consideration that this bill 
has received over the last week, and the overwhelming approval of the 
measure that I expect in the forthcoming vote, it is my view that this 
bill now represents the position of the Senate on the gifts issue. On 
that basis, I intend to make it the starting position of the Senate 
conferees when the conference begins on S. 349, the Lobbying Disclosure 
Act.
  I thank my colleagues for their support, and their patience, in 
dealing with this difficult issue.
  Mr. COHEN, I would like to join Senator Levin in urging my colleagues 
to support final passage of this gift ban legislation. As I have stated 
a number of times, no Member of this body is or has been unduly 
influenced as the result of a steak dinner or a fruit basket. 
Nonetheless, there is a perception that the Nation's business is being 
undermined through gifts to Members of Congress from special interests. 
All of us recognize that this is a false perception, but one that 
exists nonetheless.
  We have an obligation to try to reduce the level of cynicism directed 
at public institutions. We must be clear, however, that banning gifts 
will do little to improve Congress' standing in the public's eyes if 
timely action on health care, crime, the economy, and other critical 
issues is not taken. Gifts and other advantages of office are powerful 
symbols--but they are mere superficial lacerations compared to the 
malignancy that lurks in the body politic of this Nation. The cynicism 
toward Congress was not reduced when we charged for gym privileges, 
closed down the gift shop in the Dirksen Building, or raised prices in 
the barber shop. Public approval of Congress did not improve as a 
result of eliminating so-called perks in the past, and I am not sure 
that this gift ban will succeed in reducing public cynicism. It is 
ironic that at a time in our history when the standards of ethics in 
Congress is higher than over before, the press and public believe just 
the opposite.
  Historically, Congress has enjoyed high levels of support when the 
public witnessed Congress doing the Nation's business in a way which 
they could feel proud of, even if there was disagreement about the 
ultimate outcome. For example, Congress was looked upon favorably 
during the Watergate hearings, when the House and Senate rose to the 
occasion to deal with a very tough situation in a responsible manner, 
and during the debate on the Persian Gulf war, when the Nation watched 
this body solemnly consider the use of military force.
  Although overcoming the American public's cynicism toward Congress 
cannot be achieved with one piece of legislation, we have an obligation 
to do what we think is best for the institution. Members of Congress 
are very much aware of the public's dissatisfaction. We must try to 
prevent public confidence in Congress from eroding any further than it 
already has.
  Some say that Congress already spends too much time tracking public 
sentiment and following the polls, and cite this propensity as the 
major reason why Congress cannot deal effectively with difficult issues 
such as health care, the budget deficit, and crime control. I agree 
with the statement that Congress must spend more time leading and less 
time trying to follow public opinion. However, on questions of ethics, 
we must pay heed to the public's loss of fundamental faith in the 
trustworthiness of Congress, otherwise, we risk endangering the role 
this institution plays in our political process.
  Clearly, some may view this bill as an effort to stem the tidal wave 
of public discontent about a Congress that many feel is self-indulgent 
and out of touch. However, I hope Members will support this gift ban 
legislation not simply out of a desire to appease the public, but 
because the ban is in the best long-term interests of this institution. 
It is in this spirit that I believe that passage of S. 1935 is 
necessary.
  As I have said throughout the debate on this bill, finding the best 
approach to fairly and responsibly address the issue of gifts to 
Members and staff is an ongoing process and is by no means complete. 
There have been a number of significant improvements and clarifications 
made to the bill as the result of floor debate. Clearly, the most 
significant change to the bill came from Senator Bumpers' amendment, 
which bans all gifts, not just those worth under $20. I also want to 
note the contributions of Senator Simpson, regarding the designation of 
honoraria to charities, and of Senator Dole, regarding donations to 
charitable foundations. Still other improvements can be expected in 
conference with the House.
  I would like to thank Senator Levin for his leadership on this 
difficult issue. Sponsoring this legislation is not a task that either 
of us sought out, but Senator Levin has worked hard to craft a bill 
that improves greatly upon the legislation that was originally referred 
to Governmental Affairs. Two members of his staff, Linda Gustitus and 
Peter Levine, deserve particular recognition for the long hours they 
put in on this bill. I also would like to thank Senator Stevens for his 
assistance in helping to manage the bill.
  Mr. DURENBERGER. Mr. President, I rise in support of final passage of 
the gift ban bill, as amended.
  When Americans are asked to rank professions in terms of public 
esteem, politicians invariably end up wallowing at the bottom, 
somewhere in between lawyers and used car salesmen. This image problem 
isn't just any old public relations disaster; it is a threat to our 
system of government.
  When people lose faith in their elected officials, they become 
cynical about government and what it can accomplish. They stay away 
from the polls on election day. Even some of the good things we do here 
lose credibility. People participate in government less. The system 
becomes less democratic.
  I must say that I agree with many of my colleagues who have spoken 
against this bill that it is often the proponents of measures like 
these that contribute to the public relations problems. By suggesting 
that we cannot be trusted to accept the hospitality of our 
constituents, our allies and our friends in Washington, they suggest 
that something improper is happening. That is unfortunate and untrue.
  But to those colleagues that oppose this bill, I must say that 
placing the blame for the problem does not make the problem go away. 
Regardless of the origins of the problem, it is real and we need to 
deal with it.
  During the 103d Congress, I have supported efforts like motor voter 
to make participation in the political process easier. I have also 
worked to forge genuine campaign finance reform to restore faith in the 
way officials are elected. Today I will vote for this bill, to reduce 
the perception that Congress can be bought by special interests.
  Early in the debate on this bill, I supported the McConnell-Johnston 
substitute amendment, which would have further reduced the limit and 
required the disclosure of gifts. I believe that option would have 
addressed the perception problem without creating a confusing maze of 
rules with more gray areas than bright lines. But since this body opted 
to reject that amendment, we are left with the approach in the 
underlying committee substitute.
  Those of us who are retiring at the end of this Congress will not 
have to live under this ban and its myriad exceptions. I am glad that I 
will not have to make a determination of who is a personal friend and 
who is a political friend. When my colleagues dedicate their lives to 
public service, I know that those lines become hard to draw.
  I also think the record of this debate ought to reflect the 
observation that this legislation is needed only to cure the 
perception, not to change the reality. In my nearly 16 years in the 
Senate I have come to know a great many people in Washington, Not only 
Members of Congress, but lawyers, lobbyists and leaders of various so-
called special interests.
  Among the office holders, I have yet to meet one who is not motivated 
by a desire to serve the public. No one in this Senate would take a 
bribe of a million dollars, let alone be bought for the price of a 
meal. Everyone in this Senate, in my observation, works long, hard 
hours. The perception of nightly dinners and monthly junkets that some 
try to convey is simply wrong.
  Among the lawyers and representatives of various interests, it is 
rare to the point of non-existent for them to try to rely on a personal 
relationship for a favor. They rely on reasoned argument, facts, and 
the expressed desires of constituents to carry their case.
  Finally, as I said, I will vote for this legislation hoping that it 
will have some positive impact on the way the public views Congress. 
But I believe we could do much more to cure our image problem by 
getting down to the business our constituents sent us her to do--health 
care reform, welfare reform, and tackling the deficit.
  Long after this vote is forgotten, that work will be our legacy.
  Mr. LAUTENBERG. Mr. President, I rise as the initial sponsor of 
legislation to eliminate most gifts, meals, and travel provided to 
Members of Congress and their staffs.
  Mr. President, Senate passage of this bill will represent a major 
step in a journey that began a little over 1 year ago. Last spring, I 
developed the first bill to ban most gifts to Members of Congress and 
their staffs. The introduction of that bill, S. 885, was not just an 
introduction of a piece of legislation. It was an introduction of a 
whole new idea. An idea that, until then, was not even on the radar 
screen here in Washington.
  It is easy to forget how much things have changed in the past year. 
But just 12 months ago, the idea of simply disclosing these gifts was 
considered pretty radical. Senator Wellstone had to pull teeth to get 
the Senate to endorse an amendment disclosing gifts, and it was rightly 
considered a huge and dramatic step.
  By contrast, an outright gift ban was considered beyond the pale--not 
only off the agenda, but beyond the realm of the politically possible.
  In fact, when I first broached the idea of an outright gift ban, the 
reaction I got, even among reformers, was skeptical at best. They told 
me in blunt terms: it would never happen.
  Well, it may have been a mere pipe dream at the time. But today I am 
hopeful we will see that even pipe dreams can come true. Sometimes it 
just takes a little grit and determination.
  Mr. President, at its most basic level, the twin goals of this 
legislation are simple: first, to help restore public confidence in the 
Congress, and, second, to reduce the ability of lobbyists and special 
interests to acquire access and influence on Capitol Hill.
  Mr. President, Americans have always been deeply cynical about their 
government. Today that cynicism has reached disturbing levels. 
Increasingly, Americans see Members as captives of special interests, 
unconcerned about ordinary people. Many feel that Congress is not 
serving the public well because Members are out to lunch--at expensive 
restaurants and resorts, with the tab picked up by special interests.
  Mr. President, I know many of my colleagues believe that these 
perceptions are inaccurate, or at least overstated. But no one can deny 
that those perceptions exist and are broadly held by the American 
people.
  They are also understandable. After all, let us say you are a 
baseball fan. You pay hundreds of dollars to fly to the World Series to 
see your favorite team compete. And then you find out that the umpires 
just came back from a luxury trip to the Caribbean--paid for by the 
opposing team.
  Now, those umpires might insist that their free trip will not 
influence their work. They may claim to be fine, ethical people who 
care about the good of the game. They may say that their judgments will 
not be colored by the gifts they received.
  And not a fan in the country would believe them.
  Well, Mr. President, that is how most Americans feel when they see 
Members of Congress cast their votes after they have been wined and 
dined by special interest lobbyists. They think the deck is stacked 
against them. They do not think it is right. And they do not respect a 
system that operates that way.
  Mr. President, fair or not, as long as the public believes that 
Congress is beholden to special interests, our credibility, and our 
ability to lead, is undercut.
  Democracy simply cannot function in an atmosphere of distrust. After 
all, when citizens view everything the Congress does in the worst 
possible light, they are similarly skeptical about the legislation we 
propose. That makes it extremely difficult to build public support. And 
without public support, it becomes almost impossible to address major 
social problems in a meaningful way.
  In other words, Mr. President, restoring public confidence in the 
Congress is not just important to the institution. It is critical for 
our country and our future.
  That brings me to the second goal of this legislation.
  Mr. President, the need to ban lobbyists' gifts is based on more than 
the need to restore public confidence in the Congress. We also need to 
address the disproportionate power of special interests in our 
political system.
  Now, Mr. President, I know that many of my colleagues are thinking: 
come on Frank, you and I know that Senators are not selling votes for a 
free meal.
  And that is true.
  But that is not the point.
  The point is this: When lobbyists take a Senator or key staff member 
out to dinner, they are not just buying a meal, They are buying access. 
And access is power.
  Ordinary citizens do not have that access.
  They cannot just take their Senator to a quiet dinner at an expensive 
restaurant and explain what it is like to be unemployed.
  They cannot take their Congressman to a ballgame to discuss problems 
they have making ends meet or educating their kids.
  And they certainly cannot spend a relaxing weekend at a tropical 
resort, playing golf with key legislators while reviewing their 
concerns and anxieties about the future.
  Meanwhile, lobbyists can do all these things. And while they are at 
that restaurant, or that ballgame, or that resort, they can discuss a 
new tax break, or some other favor that their clients want.
  If any Member doubts the value of this kind of access, just ask a 
lobbyist or their corporate clients. Only the most disingenuous will 
claim that they provide these exotic trips out of the goodness of their 
heart. They pay because it gets results.
  They pay to buy clout.
  Similar thinking is involved when lobbyists give Members tickets to a 
show or sporting event, or other gifts. Often, the tickets buy access 
to Members at the event itself. But if not, they buy good will. And 
good will also is power. It can mean the difference between getting 
your calls returned, or your letter taken seriously. And that can 
translate into millions, even billions of dollars--at the expense of 
ordinary Americans who have no lobbyists to represent them.
  Now I know that these kinds of gifts and favors are not unique to 
Congress. They are the common coin of exchange in a variety of 
different areas. Which, again, demonstrates that people think they have 
an impact.
  I know I did when I was a CEO in the private sector. My company 
strictly forbade purchasing agents from accepting gifts from suppliers. 
There was the potential for undue influence, and the stakes were high. 
So I took steps to minimize the possibility of abuse.

  The same concerns apply to Congress, where the stakes are infinitely 
greater. And now we have to take steps to minimize abuses here as well.
  Before I go further, Mr. President, let me say this.
  I know a lot of my colleagues are unhappy with me for proposing this 
legislation. And that may be putting it mildly. So I want to emphasize 
a few things.
  I did not introduce this bill to tear down the Congress. To the 
contrary, I want to build it up and strengthen it.
  Nor am I offering this legislation to impugn the integrity of any 
Member of Congress. The fact is, Members of this body are dedicated 
public servants who work hard and are genuinely committed to serving 
the public interest. That is not widely appreciated, but it is true. 
and I think our bill would only help make that clear.
  Nor am I claiming that I am some kind of saint who thinks he is 
holier than thou. In the past, most of the Members of this body, myself 
included, have lived by the rules and accepted certain items. I do not 
claim otherwise.
  But times have changed. Public frustration has reached enormous 
proportions. And it seems to me that we will never restore public faith 
in this institution until we make some meaningful changes in the way we 
do business.
  This bill will make those changes. It will ban virtually all gifts 
except those from family members and personal friends. It will put an 
end to recreational vacation trips, paid for by private interests. And 
it will prohibit lobbyists from currying favor with politicians by 
responding to a Member's solicitation for a contribution to his or her 
favorite charity.
  It is a tough, strong bill that will make a real difference in the 
way business is conducted here in Washington.
  Mr. President, let me briefly review how we got to this point. As I 
mentioned, I introduced the first gift ban bill, S. 885, on May 4, 
1993. That bill proposed a strengthened version of the rules that now 
govern executive branch officials.
  On May 5, 1993, I offered an amendment to S. 349, the Lobbying 
Disclosure Act, expressing the sense of the Senate that the rules in 
this area should be tightened in a manner substantially similar to the 
restrictions applicable to executive branch officials--and that we 
should act by the end of last year's session. My amendment was approved 
by a vote of 98-1.
  Despite the overwhelming vote, the Senate did not take action last 
year. Hearings were held in July by the Governmental Affairs 
Subcommittee on Oversight of Government Management, chaired by Senator 
Levin. However, by the end of the session the bill remained stalled in 
committee.
  Earlier this year, joined by Senators Wellstone and Feingold, I 
decided to push the issue to a head. The three of us announced that we 
were prepared to offer an amendment to unrelated legislation, and we 
developed a new version of our proposal designed to move the process 
forward.
  Our new bill, S. 1935, was based on legislation that had been 
developed in the House, which placed restrictions on the gifts that 
lobbyists and their clients could provide. We designed our bill to 
largely mirror the House approach, but we eliminated many of the 
loopholes in the House bill, and strengthened the language in a variety 
of ways. Our expectation at the time was that an approach focused on 
lobbyists and their clients was more likely to win eventual approval as 
part of the Lobbying Disclosure Act, especially given the difficulty we 
had encountered in moving our original bill, which focused on what 
Members and staff could receive.
  After we announced our intention to offer the new bill as an 
amendment to unrelated legislation, we entered into negotiations with 
key Senators about the procedures by which our proposal would be 
considered. After extensive discussions, we succeeded in securing a 
unanimous-consent agreement under which our bill would be referred to 
the Governmental Affairs Committee for a limited time, after which the 
bill would be taken up by the full Senate.
  It was this agreement that finally got the ball rolling. Facing a 
deadline for action, the Governmental Affairs Committee developed a 
revised version of our bill, and sent it on to the full Senate. The 
committee's substitute, developed largely by Senator Levin, went back 
to the approach in our first bill, S. 885, and placed restrictions on 
what Members could receive in a manner substantially similar to the 
rules applicable to executive branch officials. The committee also 
adopted a key principle of our second bill, S. 1935 as introduced, by 
including a virtually total ban on gifts from lobbyists.
  The committee substitute was a significant, positive step forward, 
but it had several weaknesses. For example, the substitute contained an 
open-ended exemption for meals and entertainment in a Member's home 
State. It also lifted an existing cap on gifts worth more than $250 
from personal friends. In addition, the committee substitute failed to 
restrict the lobbyists and others who give gifts.
  Once the bill came to the floor, Senators Wellstone, Feingold, and I 
were able to make some significant improvements in the legislation, 
which were included in a manager's amendment proposed by Senator Levin. 
First, the amendment reinstated the current cap on entertainment in a 
Member's home State, pending Rules Committee action. Second, the 
amendment required Ethics Committee waiver of gifts to Members and 
staff from personal friends in excess of $250, as under current rules. 
This is designed to protect against apparent conflicts of interest 
where, for example, a friend gives a large gift while seeking 
legislative favors.
  The manager's amendment also makes it unlawful for any lobbyist or 
foreign agent to give a gift knowing that acceptance of the gift would 
violate the rules. Unfortunately, we were not able to agree on an 
enforcement mechanism for this prohibition. However, inclusion of the 
provision puts the Senate on record in support of the principle of 
limiting gift givers, and I am hopeful that an enforcement mechanism 
will be established in conference. The House gift ban relies 
exclusively on restrictions imposed on lobbyists and clients, enforced 
by the Justice Department through civil fines up to $200,000.
  Another provision in the manager's amendment is based on language 
from our underlying bill, S. 1935, that precludes the availability of 
the personal friendship exception where a lobbyist charges a fee for 
the purpose of reimbursing the lobbyist for a gift. This responds to 
statements by lobbyists that they would evade the rules by claiming 
that a Member or staffer was a friend, and then charging higher hourly 
fees to compensate themselves for lunches provided to Members and 
staff. This kind of evasion would be precluded by our language.
  Finally, the manager's amendment limits the availability of the 
widely attended event exception to food and materials provided by the 
sponsor of an event. This is consistent with our original proposal, and 
with executive branch rules. Thus, if a private corporation pays to 
have a Member sit at their table at an event, that will be considered a 
gift to the Member and banned, if no other exceptions apply.

  Taken together, Mr. President, these changes have made an already 
strong bill even stronger, and are sufficient to allow me to endorse 
the final product enthusiastically.
  Mr. President, before I go further I want to express my appreciation 
to Senator Levin and his staff for their outstanding work on this 
legislation, and for their cooperation throughout this process. Senator 
Levin has once again proven himself to be not only a committed advocate 
for reform, but one of the most conscientious and able Members of this 
body. His performance in the debate on this bill demonstrated his 
mastery of the bill's details, and his tremendous skill as a 
legislative craftsman.
  I also want to express my thanks to Senator Levin's staff, especially 
Linda Gustitus and Peter Levine, for their excellent work on this bill. 
They've done a great job, and deserve enormous credit for their 
professionalism and their dedication to quality.
  I also want to formally thank my two partners in this effort, Senator 
Paul Wellstone and Senator Russell Feingold. It's been a real pleasure 
to work with both of these outstanding Senators, and I appreciate their 
support throughout this often lonely battle. Senator Wellstone clearly 
has established himself as one of the most forceful and effective 
advocates of Government reform, and has thrown himself into this battle 
with great dedication and commitment. Similarly, Senator Feingold has 
worked very hard on this legislation, and has made a huge difference. I 
thought his presentation to the Senate was especially persuasive, and 
demonstrated to our colleagues that a tight gift ban can work in the 
Senate, as it has worked in Wisconsin for over 20 years.
  Mr. President, let me also pay tribute to two outside groups that 
played an especially important role in this effort.
  First, Common Cause, and its president, Fred Wertheimer.
  Mr. President, Common Cause may not be the most popular group among 
Members of Congress, but it plays a critical role here in Washington. 
It would be a lot harder to pass reform legislation if they were not 
here to help: providing technical drafting advice, working the Halls of 
Congress, and building support in the press and the public around the 
country. Fred Wertheimer and his staff, especially Michael Mawby and 
Meredith McGehee, have made a major contribution to this effort, and I 
want to publicly thank them for their help.
  I also want to express my appreciation to Public Citizen, and its 
president, Joan Claybrook, for their assistance in building support for 
this bill. Public Citizen has made a real contribution, not only by 
providing lobbying support and advice, but by publishing an extensive 
report on travel by Members of Congress that helped bring this problem 
to public attention. I want to especially thank Bob Schiff and Pam 
Gilbert of the Public Citizen staff for their assistance.
  Now, Mr. President, the battle shifts to the conference committee on 
the Lobbying Disclosure Act. There are major differences between the 
Senate and House gift bans, and much work remains to be done.
  I would strongly urge the conferees to take the best from both the 
Senate and House versions in devising a final conference report. From 
the Senate, I would hope they will take our broad approach that 
prohibits Members and staff from accepting gifts from virtually anyone 
other than relatives and personal friends. From the House, I would hope 
they will take strict limits on lobbyists and others who give gifts, 
backed up with tough and enforceable sanctions. I also would note that 
it is important not to include some of the loopholes that were included 
in the House bill, such as those that would allow charity recreational 
trips and private meals with lobbyists.
  It is comforting for me to know that the Senate will be represented 
in these negotiations by Senator Levin, and I look forward to providing 
any assistance I can to support his efforts.
  So, Mr. President, this promises to be a historic day. I'm proud to 
be a part of it. And I look forward to continuing to work hard until 
this important piece of legislation is enacted into law.
  Mr. President, I ask unanimous consent that certain materials related 
to this legislation be published in the Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From the New York Times, May 9, 1994]

                    The New Senate Standard on Gifts

       The debate was unusually passionate and personal last week 
     when the Senate considered banning one of lawmakers' most 
     cherished perks: the lavish meals, resort vacations and other 
     gifts from lobbyists and other special interests seeking 
     influence.
       For a while, it looked as if the perk preservationists, led 
     by Democratic Senator J. Bennett Johnson of Louisiana and 
     Republican Senators Mitch McConnell of Kentucky and Bob Dole 
     of Kansas, the minority leader, might just prevail.
       But they did not. In a crucial vote the Senate rejected, 59 
     to 39, mischievous amendment that would have gutted the 
     strong gift-ban measure sponsored by Senator Carl Levin, 
     Democrat of Michigan, and Senator William Cohen, Republican 
     of Maine. Senate passage of the gift ban is expected later 
     this week.
       That will be a big breakthrough for government integrity 
     and a real tribute to the persistence of three Democratic 
     Senators: Frank Lautenberg of New Jersey, Paul Wellstone of 
     Minnesota and Russell Feingold of Wisconsin. While most of 
     their colleagues would have preferred to see the issue 
     disappear quietly, these three insisted that it be addressed. 
     They share the credit with Senators Levin and Cohen for the 
     progress made so far.
       Among those on the wrong side of this fight, voting to 
     uphold every Senator's right to a life style subsidized by 
     lobbyists, were Senator Chistropher Dodd, the normally 
     reform-minded Democrat of Connecticut, and Senator Alfonse 
     D'Amato, the Republican of New York who is a connoisseur of 
     ethics only when it comes to President Clinton and 
     Whitewater.
       The fight to wean lawmakers off lobbyists' gifts is not yet 
     over. The Senate bill could still use some tightening. But 
     the major challenge is to get the strong restrictions in the 
     Levin-Cohen bill accepted as part of the final House-Senate 
     conference on lobbyist registration and gift bans. 
     Representative John Bryant, Democrat of Texas, the chief 
     sponsor of the House bill, has said he is open to 
     strengthening its loophole-ridden provisions, which would, 
     for example, allow the free golf and tennis junkets that 
     lawmakers now enjoy in the guise of helping charities.
       Much now depends on Mr. Bryant and the House Democratic 
     leadership. After all the discouraging rhetoric and foot 
     dragging, the Senate has set a laudable standard. How will 
     the House respond?
                                  ____


                [From the New York Times, Mar. 8, 1994]

                           An Honest Gift Ban

       At the urging of Senator Frank Lautenberg of New Jersey, 
     the Senate approved a resolution last May committing the 
     chamber to strict new curbs, by the end of 1993, on gift-
     giving by lobbyists to members of Congress. The deadline 
     passed, but last week Mr. Lautenberg served notice that he 
     was ready to push the matter. That is a promising development 
     for Congressional ethics reform.
       Mr. Lautenberg and another strong critic of the unseemly 
     financial ties between lobbyists and lawmakers. Senator Paul 
     Wellstone of Minnesota, made public an amendment they will 
     offer to bar the free meals, resort vacations and other life 
     style enhancers that powerful interests now bestow on members 
     hoping to buy legislative advantage.
       The faint-hearted among their colleagues may not be 
     pleased. But Messrs. Lautenberg and Wellstone have done a 
     real public service by putting forward an honest measure that 
     could move Congress to a higher moral plane.
       The measure exposes the major weaknesses in the House's 
     pending gift ban bill, sponsored by Representative John 
     Bryant of Texas. The problem with that bill, as the 
     accompanying chart suggests, is that it is too permissive to 
     do much good.
       The reason for the House's timidity is depressingly clear. 
     Many House members have grown accustomed to a life on the 
     dole, and recoil at the idea of giving up their lobbyist-
     financed golf and tennis outings. House Democrats, who do not 
     normally go out of their way to satisfy the Republican 
     minority, now have Representative Vic Fazio of California 
     conferring with the minority whip, Newt Gingrich, to try to 
     agree on new gift limits.
       Mr. Bryant is scheduled to meet tomorrow with Republicans 
     to discuss the issue. What both sides seem to be looking for 
     is bipartisan cover for not strengthening the Bryant bill.
       By moving their measure swiftly in the Senate, Senators 
     Lautenberg and Wellstone will make it much tougher for House 
     leaders to pull a fast one by passing the weaker Bryant bill 
     and claiming a victory for reform. Much as many lawmakers 
     would like to deny it, the public stakes are high. ``When 
     lobbyists take a senator to dinner, they're not just buying a 
     meal, they're buying access,'' observes Mr. Lautenberg. ``And 
     access is power.''


                        golf or tennis, anyone?

       Key differences between Senator Lautenberg's proposed gift 
     ban for members of Congress and Representative Bryant's 
     weaker House version.

------------------------------------------------------------------------
       Lobbyists' gifts           Lautenberg's plan      Bryant's plan  
------------------------------------------------------------------------
Golf, tennis, skiing and other  Banned                 Allowed.         
 recreational trips.                                                    
Meals and entertainment.......  Banned                 \1\Banned.       
Donations to members'           Banned                 Allowed.         
 foundations and legal defense                                          
 funds.                                                                 
------------------------------------------------------------------------
\1\A major loophole allows the lobbyist's client to pick up the tab.    

                                  ____


                [From the New York Times, Mar. 29, 1994]

                         The Golf Club Survives

       Senator Orrin Hatch has some good news. Tennis, he 
     announced in a recent letter to Congressional colleagues, has 
     been added to the list of activities at the Utah 
     Congressional Golf Challenge, an annual sporting event to 
     which Mr. Hatch plays host in his home state.
       Like other such junkets taken in the guise of helping 
     charity or Congressional business, this is a chance for 
     lawmakers to enjoy an expenses-paid vacation at a luxury 
     resort courtesy of big corporate sponsors, whose lobbyists 
     and executives get to play right alongside the House and 
     Senate members. These corporations, of course, care less 
     about golf and tennis than forging personal ties that can 
     help with legislation.
       Mr. Hatch's tournament was not mentioned yesterday when the 
     House debated gift-giving to members of Congress, which is 
     too bad. The popular outing points to a critical flaw in the 
     new gift restrictions pushed through by House Democrats who 
     are now loudly proclaiming a victory for ethics.
       Some victory. The bill, crafted by John Bryant of Texas to 
     placate the peripatetic and bipartisan House Golf and Tennis 
     Caucus, and shepherded to a lopsided victory by Vic Fazio of 
     California, would not prohibit Mr. Hatch's sporting junket. A 
     loophole-marred provision would bar lobbyists from picking up 
     the tab for lawmakers' meals and entertainment. But the 
     corporate executives who hire the lobbyists could continue to 
     bestow these benefits without the embarrassment of 
     disclosure.
       It speaks volumes about the state of Congressional ethics 
     that House Republicans, most of whom ended up voting for 
     yesterday's gift measure, initially balked at accepting even 
     these deficient changes. Democratic leaders, meanwhile, 
     happily latched onto that reluctance as an excuse for not 
     strengthening the Bryant bill.
       Realistically, the hope for strong gift reform now rests 
     with the Senate. A tough gift ban measure recently proposed 
     by Senators Frank Lautenberg of New Jersey and Paul Wellstone 
     of Minnesota provides a real chance to change Congress's 
     lobbyist-subsidized life style. It would forthrightly ban 
     gifts of recreational travel, meals and other dubious 
     financial benefits bestowed by lobbyists and the companies 
     who employ them in an effort to influence legislation.
       The Lautenberg proposal is now before the Senate's 
     Governmental Affairs Committee, which, under an agreement 
     with the Senate majority leader, George Mitchell, has until 
     April 27 to act on the issue. Floor consideration is assured 
     no later than May 4. The Senate's Democratic leadership 
     should wait until the Senate's gift provisions are acted upon 
     before scheduling a conference with the House.
       Prompt action by the Senate on an honest gift reform bill 
     would expose the House bill for the inadequate response it 
     is. It could also force club- and racket-wielding lawmakers, 
     kicking and screaming, onto higher ethical ground.
                                  ____


               [From the Washington Post, Mar. 29, 1994]

                         Cleaning Up the Lobby

       The House took an important step last week toward making 
     itself more accountable and reining in the influence of paid 
     lobbyists. But it was only a step. If members of Congress 
     want to reassure voters that they are not the sorts to be 
     bought off by free golfing trips, skiing vacations and tennis 
     outings, they need to strengthen the House's handiwork.
       First, the good news. The bill passed by the House would 
     actually provide a comprehensible definition of just what a 
     lobbyist is and require registration with a new independent 
     agency. Anyone paid more than $2,500 in any six-month period 
     for lobbying work, or any group paid more than $10,000 a year 
     to lobby, would have to file disclosure reports every six 
     months. They would have to report on the important aspects of 
     their work, including who their clients are, which issues 
     they're working on and which congressional or other 
     governmental offices they visit. The bill would also bar 
     lobbyists from giving senators, House members or their staff 
     members meals, trips or other gifts. Registration would also 
     be required of those who organize ``grass roots'' campaigns 
     to influence legislation--which are often actually instant 
     Astroturf creations of lobbying groups trying to create the 
     impression of mass support for their side. The point of all 
     this is to ensure that the public knows who is trying to 
     influence whom and to make clear that members of Congress 
     aren't out to sell their votes.
       What's missing from the bill is a comprehensive ban on the 
     sort of free travel--``charitable'' tennis and golf 
     tournaments are the most well-publicized examples--sponsored 
     by the corporations and trade associations that hire the 
     lobbyists. There is nothing wrong with members of Congress 
     taking a deserved vacation, but they, like other citizens, 
     should pay for it themselves. As the House bill now stands, 
     members could take the free trips as long as they were paid 
     for by the interest groups and not financed directly by the 
     lobbyists. It's a loophole you could drive a golf cart 
     through. Similarly, corporate executives could buy the 
     restaurant meals that the lobbyists could not. The lobbyists 
     could come along for the fun.
       The Senate has a much stronger gift ban before it, 
     sponsored by Sens. Frank Lautenberg and Paul Wellstone. In 
     addition to banning the trips, it would also prohibit some of 
     the more sophisticated forms of gift-giving. For example, it 
     would stop lobbyists from making contributions to private 
     foundations controlled by members of Congress or from making 
     charitable contributions in the name of a member. The Senate 
     has passed its own version of lobbying reform, but before a 
     House-Senate conference is called, senators should get a 
     chance to vote on the more comprehensive gift ban. And having 
     taken one good step, the House should be prepared to take the 
     definitive one. As Rep. Karen Shepherd of Utah put it, the 
     client-sponsored trips are ``excuses for corporations to 
     buy members a nice week of vacations, and I think they 
     should be banned.'' Ms. Shepherd has it right.
                                  ____


               [From the Washington Post, Apr. 22, 1994]

                        Getting Better on Ethics

       Remarkably, the effort to tighten the rules on gifts to 
     members of Congress is making progress. On Tuesday, the 
     Senate Governmental Affairs Committee reported out a bill 
     being pushed by Sen. Carl Levin (D-Mich.) that would bar 
     members of Congress from taking gifts from registered 
     lobbyists, with a few minor exceptions. Notably, it would ban 
     privately funded travel not related to official business and 
     also ban private travel and lodging for those famous 
     ``charitable events'' and other trips that are substantially 
     recreational. The bill contains other useful provisions, 
     including a ban on charitable contributions made in the name 
     of members in lieu of honorariums.
       In amending his earlier approach, Mr. Levin is rightly 
     responding to proposals by Sens. Wellstone, Lautenberg and 
     Feingold to make sure that those ``charity'' golf and tennis 
     tournaments get banned once and for all. The Senate bill is, 
     on balance, tougher than an approach passed earlier this year 
     by the House.
       But the House bill, being shepherded by Rep. John Bryant 
     (D-Tex.), has one advantage. It prohibits lobbyists from 
     giving gifts, where the Levin bill simply bars members from 
     taking them. The Bryant approach would have the effect of 
     giving the Justice Department an enforcement role and not 
     leaving all the enforcement to Congress itself. Taking Mr. 
     Levin's rules and applying them both to members of Congress 
     and to lobbyists would be the best route.
       The Levin rules could stand some tightening. The Senate 
     bill, for example, leaves the Senate Rules Committee great 
     discretion in determining what sorts of meals and 
     entertainment would be acceptable if they were given when a 
     member of Congress was in his or her home state. Better to 
     spell these rules out in legislation. More generally, both 
     houses need to make sure all the rules are tightly drafted to 
     avoid problems such as a provision in the House bill that 
     actually weakens rather than strengthens the law on illegal 
     gratuities to members of Congress.
       There is considerable resentment in Congress at the whole 
     effort to tighten gift rules. Many members argue privately 
     that voters will still mistrust them whether they have tough 
     rules or loose ones, so why make congressional life more 
     difficult by getting tough on gifts? This sourt of self-pity 
     is unbecoming and misses the point. Voters have a right to be 
     skeptical about some of the gifts members of Congress can now 
     legally take. Improving the system won't miraculously change 
     public attitudes toward politicians for the better, but 
     blocking reasonable reforms will surely make those attitudes 
     worse. And, yes, the politicians trying to make things better 
     do deserve credit for their efforts.
       The progress that's been made, and the further progress 
     that's possible, could be blocked if the Senate does not act 
     to make sure that the entire Levin approach is incorporated 
     in legislation that gets to the conference committee where a 
     final bill will be brokered between the two houses. The Levin 
     approach has raised the standards for the House, and some 
     foes of reform, not wanting to take the heat for blocking a 
     bill directly, may use procedural moves to prevent action 
     without seeming to do so. The House and Senate leaders 
     shouldn't let that happen.

  Mr. McCONNELL. Mr. President, the upside of this bill is all 
political. But, make no mistake, there will be no positive blip in 
congressional approval ratings because of this bill.
  The downsides of the Levin-Wellstone-Lautenberg proposal are in 
practicality, enforceability, and compliance. Those are the concerns I 
expressed last week and still hold. The actual language of the bill is 
not concise or easily implemented. That is why I supported Senator 
Bumpers' amendment to delete the $20 gift limit allowed from 
nonlobbyists, it would be very difficult to ascertain that everything 
accepted did, indeed, have a market value of less than that amount. In 
effect, I argued for making the bill tougher by making it more 
practical.
  As vice chairman of the Ethics Committee, I am compelled to again 
caution members that the committee is nowhere near adequately staffed 
to cope with the onslaught of advisory opinions and waiver requests it 
will receive because of this legislation. And when the committee is 
powered up with legions of staff attorneys, members, and staff beware, 
this bill will make honest people appear crooked. Reputations may be 
ruined. Careers may be destroyed--over a meal or trinket that falls 
outside some exception.
  Mr. President, I will not at this time revisit the donut debate of 
last week, but would note that that discussion only touched on the 
countless scenarios possible under this measure. However, as the 
softball season is just beginning, I will leave Members and staff with 
an additional question to ponder: under the Levin-Wellstone-Lautenberg 
proposal, will any Senator or Senate employee be able to play on a 
softball team in a tournament sponsored by corporations? Sponsored by a 
pizza joint? Will America be better off because all Senate softball 
players are benched?
  There is no question that America is not enamored of its Congress. 
But in our zeal to appear sensitive to public perception, we must not 
lose sight of reality. The reality is that until we seriously tackle 
the seemingly intractable problems of the deficit, government waste, 
crime and economic insecurity, people will not have a positive 
perception of Congress. and all this self-immolation on C-Span just 
makes people even more disgusted.
  Mr. CHAFEE. Mr. President, today the Senate has come one step closer 
to restoring public confidence in Congress. Passage of what has come to 
be called the gift ban bill will help to strengthen the credibility 
Congress has lost as a result of such matters as the improprieties that 
led to the closing of the House bank and the revelations about dubious 
fundraising activities that resulted from the Keating Five 
investigations.
  I do not believe that the votes of most Members of Congress are 
influenced by the meals and tokens that this bill seeks to eliminate.
  What I do believe is that a public perception exists that Congress 
places itself above other Americans. The perception also exists that 
some Members of Congress are unduly influenced by special interest 
lobbyists, rather than by those they represent. This erosion of the 
public trust threatens to undermine the effectiveness of the 
legislative branch.
  As we endeavor to make unprecedented changes in our Nation's health 
care policy that will affect virtually every American; as we work to 
rejuvenate our Nation's troubled schools; and as we take steps to 
reform the welfare system to best assist our Nation's poorest citizens, 
we must have the trust, confidence, and assistance of the American 
people.
  If restoring the gift rules will help to restore the public trust, 
then I am all for it.
  Mr. ROCKEFELLER. Mr. President, I openly admit that I have 
reservations about how the good intentions of Senator Levin's 
congressional gift reform legislation will be implemented, and how some 
provisions could inadvertently affect or raise questions about our 
families' activities, and those of our staff and their families.
  Last week, I spoke in support of the McConnell-Johnston alternative. 
I voted for this alternative because I truly believed it was a more 
practical and more enforceable effort to address the American public's 
concern about the need for congressional reform.
  Despite how the alternative was portrayed in the press, I believe 
that the McConnell-Johnston amendment represented true reform by 
lowering the thresholds for gifts, requiring approval by the Senate 
Ethics Committee for travel to charity events, and dramatically 
increasing penalties for unethical behavior by Members and staff.
  I preferred this alternative because it would not force me to 
question the value of thoughtful gifts from constituents, such as 
framed pictures taken at West Virginia events, or quilts presented to 
me as a tribute to the enormous efforts my wife Sharon made to promote 
West Virginia's quilters. I was honored to accept these quilts years 
ago, and am proud to display them in my office. It troubles me that in 
the future, questions will be raised about similar gifts to Members, 
and even gifts to their families.
  As I said last week, I commend Senator Levin for his painstaking 
efforts to address questions and develop reasonable legislation in this 
area. Real improvements have been made throughout the legislative 
process. I was one of the Members who responded to Senator Levin's 
request for comments, and shared my concerns about how vague 
legislative language could hinder legitimate and essential 
communications, or discourage Members and staff from volunteering time 
to charities. Both of these issues concern me deeply. I want to 
publicly commend Senator Levin for his efforts to draft specific 
language to allow for attendance at meaningful symposiums and events 
with constituents and advocates to discuss legislative issues and 
exchange ideas.
  Senator Levin's colloquy with Senators Dole and Simpson has helped 
clarify some key points for Members and staff working with charitable 
organizations which is appreciated. I take enormous pride in my work 
for charities like the Children's Health Project, which uses mobile 
vans to provide health care to needy children in New York City, rural 
West Virginia, and other areas. I believe it is good for Members to 
serve on bipartisan, nonprofit boards like the Alliance for Health Care 
Reform. Now, it will be more difficult to be involved in such 
activities, and that disturbs me. As someone from a family with a 
strong tradition of philanthropy, I feel deeply that volunteer work for 
charities should be encouraged--not discouraged and questioned.

  But today, I must vote either for the Levin Congressional Gifts 
Reform Act, or vote against reform. The American public has spoken 
clearly about their cynicism and their desire for reform. In the spirit 
of compromise and in the hope that continuous efforts will be made to 
clarify and improve this reform proposal in conference, I will vote for 
the Levin legislation.
  The PRESIDING OFFICER. Under the previous order, the committee 
substitute, as amended, is agreed to.
  Mr. LEVIN. Mr. President, I ask for the yeas and nays on the bill.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The clerk will read the bill for the third 
time.
  The bill was read the third time.
  The PRESIDING OFFICER. The question is on passage of the bill, as 
amended.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. FORD. I announce that the Senator from Alabama [Mr. Shelby] is 
absent because of illness.
  The result was announced--yeas 95, nays 4, as follows:

                      [Rollcall Vote No. 107 Leg.]

                                YEAS--95

     Akaka
     Baucus
     Biden
     Bingaman
     Bond
     Boren
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Conrad
     Coverdell
     Craig
     D'Amato
     Danforth
     Daschle
     DeConcini
     Dodd
     Dole
     Domenici
     Dorgan
     Durenberger
     Exon
     Faircloth
     Feingold
     Feinstein
     Ford
     Glenn
     Gorton
     Graham
     Gramm
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Hutchison
     Inouye
     Jeffords
     Johnston
     Kassebaum
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     Mathews
     McCain
     McConnell
     Metzenbaum
     Mikulski
     Mitchell
     Moseley-Braun
     Moynihan
     Murray
     Nickles
     Nunn
     Packwood
     Pell
     Pressler
     Pryor
     Reid
     Riegle
     Robb
     Rockefeller
     Roth
     Sarbanes
     Sasser
     Simon
     Simpson
     Smith
     Specter
     Stevens
     Thurmond
     Warner
     Wellstone
     Wofford

                                NAYS--4

     Bennett
     Hollings
     Murkowski
     Wallop

                             NOT VOTING--1

       
     Shelby
       
  So the bill (S. 1935), as amended, was passed, as follows:

                                S. 1935

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Congressional Gifts Reform 
     Act''.

     SEC. 2. AMENDMENT TO THE SENATE RULES.

       Rule XXXV of the Standing Rules of the Senate is amended to 
     read as follows:

                              ``RULE XXXV

                                ``gifts

       ``1. (a) No Member, officer, or employee of the Senate, or 
     the spouse thereof, shall knowingly accept--
       ``(1) any gift provided directly or indirectly by any 
     person registered as a lobbyist or a foreign agent under the 
     Federal Regulation of Lobbying Act, the Foreign Agent 
     Registration Act, or any successor statute;
       ``(2) Any gift from any other person.
       ``(b) For the purpose of this rule, the term `gift' means 
     any gratuity, favor, discount, entertainment, hospitality, 
     loan, forbearance, or other item having monetary value. The 
     term includes gifts of services, training, transportation, 
     lodging, and meals, whether provided in kind, by purchase of 
     a ticket, payment in advance, or reimbursement after the 
     expense has been incurred.
       ``(c)(1) The restrictions in subparagraph (a) shall apply 
     to any financial contribution or expenditure relating to a 
     conference, retreat, or similar event for or on behalf of 
     Members, officers, or employees.
       ``(2) The following items are subject to the restrictions 
     in subparagraph (a)(1)--
       ``(A) an item provided by a lobbyist or a foreign agent 
     which is paid for, charged to, or reimbursed by a client or 
     firm of such lobbyist or foreign agent;
       ``(B) an item provided by a lobbyist or a foreign agent to 
     an entity that is maintained or controlled by a Member, 
     officer, or employee;
       ``(C) a charitable contribution made on the basis of a 
     designation, recommendation, or other specification made to a 
     lobbyist or a foreign agent by a Member, officer, or employee 
     (not including a mass mailing or other solicitation directed 
     to a broad category of the general public);
       ``(D) a contribution or other payment by a lobbyist or 
     foreign agent to a legal expense fund established for the 
     benefit of a Member, officer, or employee;
       ``(E) a charitable contribution (as defined in section 
     170(c) of the Internal Revenue Code of 1986) made by a 
     lobbyist or a foreign agent in lieu of an honorarium; and
       ``(F) A contribution, as defined in the Federal Campaign 
     Act of 1971 (2 U.S.C. 431 et seq.) that is made by a 
     lobbyist, foreign agent, or Political Action Committee to a 
     Member.
       ``(d) The following items are not gifts subject to the 
     restrictions in subparagraph (a):
       ``(1) Any item for which the Member, officer, or employee 
     pays the market value.
       ``(2) A contribution, as defined in the Federal Election 
     Campaign Act of 1971 (2 U.S.C. 431 et seq.) that is lawfully 
     made under that Act except as provided in subparagraph 
     (c)(2)(E).
       ``(3) Anything provided under circumstances that clearly 
     indicate, in accordance with paragraph 2(a), that it is 
     provided for a nonbusiness purpose and is motivated by a 
     family relationship or personal friendship and not by the 
     position of the Member, officer, or employee (subject to 
     prior approval by the Ethics Committee in the case of a gift 
     to a Member, officer, or employee in excess of $250 that is 
     provided on the basis of personal friendship and disclosure 
     under the Ethics in Government Act of a gift to a spouse of a 
     Member in excess of $250 that is provided on the basis of 
     personal friendship).
       ``(4) Items which are not used and which are promptly 
     returned to the donor.
       ``(5) A food or refreshment item of minimal value, such as 
     a soft drink, coffee, or doughnut offered other than as part 
     of a meal.
       ``(6) Benefits resulting from the business, employment, or 
     other outside activities of the spouse of a Member, officer, 
     or employee, if such benefits are customarily provided to 
     others in similar circumstances.
       ``(7) Pension and other benefits resulting from continued 
     participation in an employee welfare and benefits plan 
     maintained by a former employer.
       ``(8) Informational materials that are sent to the office 
     of the Member, officer, or employee in the form of books, 
     articles, periodicals, other written materials, audio tapes, 
     videotapes, or other forms of communication.
       ``(e) The restrictions in clauses (2) and (3) of 
     subparagraph (a) shall not apply to the following:
       ``(1) Meals, lodging, and other benefits--
       ``(A) resulting from the outside business or employment 
     activities of the Member, officer, or employee (or other 
     outside activities that are not connected to the duties of 
     the Member, officer, or employee as an officeholder), if such 
     benefits have not been offered or enhanced because of the 
     official position of the Member, officer, or employee and are 
     customarily provided to others in similar circumstances; or
       ``(B) customarily provided by a prospective employer in 
     connection with bona fide employment discussions.
       ``(2) Awards or prizes which are given to competitors in 
     contests or events open to the public, including random 
     drawings.
       ``(3) Honorary degrees and other bona fide awards presented 
     in recognition of public service and available to the general 
     public (and associated meals and entertainment provided in 
     the presentation of such degrees and awards).
       ``(4) Donations of products from the State that the Member 
     represents that are intended primarily for promotional 
     purposes, such as display or free distribution, and are of 
     minimal value to any individual recipient.
       ``(5) Meals and entertainment provided to a Member or an 
     employee of a Member in the Member's home State, subject to 
     reasonable limitations, to be established by the Committee on 
     Rules and Administration.
       ``(6) Food and attendance provided at an event sponsored by 
     a political organization described in section 527(e) of the 
     Internal Revenue Code of 1986.
       ``(7) Training provided to a Member, officer, or employee, 
     if such training is in the interest of the Senate.
       ``(8) Bequests, inheritances, and other transfers at death.
       ``(9) Any item, the receipt of which is authorized by the 
     Foreign Gifts and Declarations Act, the Mutual Education and 
     Cultural Exchange Act, or any other statute.
       ``(10) Anything which is paid for by the Government or 
     secured by the Government under a Government contract.
       ``(11) A gift of personal hospitality of an individual, as 
     defined in section 109(14) of the Ethics in Government Act.
       ``(12) Free attendance at an event permitted pursuant to 
     paragraph 2(b).
       ``(13) Opportunities and benefits which are--
       ``(A) available to the public or to a class consisting of 
     all Federal employees, whether or not restricted on the basis 
     of geographic consideration;
       ``(B) offered to members of a group or class in which 
     membership is unrelated to congressional employment;
       ``(C) offered to members of an organization, such as an 
     employees' association or congressional credit union, in 
     which membership is related to congressional employment and 
     similar opportunities are available to large segments of the 
     public through organizations of similar size;
       ``(D) offered to any group or class that is not defined in 
     a manner that specifically discriminates among Government 
     employees on the basis of branch of Government or type of 
     responsibility, or on a basis that favors those of higher 
     rank or rate of pay;
       ``(E) in the form of loans from banks and other financial 
     institutions on terms generally available to the public; or
       ``(F) in the form of reduced membership or other fees for 
     participation in organization activities offered to all 
     Government employees by professional organizations if the 
     only restrictions on membership relate to professional 
     qualifications.
       ``(14) A plaque, trophy, or other memento of modest value.
       ``(15) An item for which, in an unusual case, a waiver is 
     granted by the Select Committee on Ethics.
       ``2. (a)(1) In determining if the giving of an item is 
     motivated by a family relationship or personal friendship, at 
     least the following factors shall be considered:
       ``(A) The history of the relationship between the 
     individual giving the item and the individual receiving the 
     item, including whether or not items have previously been 
     exchanged by such individuals.
       ``(B) Whether the item was purchased by the individual who 
     gave the item.
       ``(C) Whether the individual who gave the item also at the 
     same time gave the same or similar item to other Members, 
     officers, or employees.
       ``(2) The giving of an item shall not be considered to be 
     motivated by a family relationship or personal friendship if 
     the individual providing the item--
       ``(A) seeks to deduct the value of such item as a business 
     expense on the individual's income tax return; or
       ``(B) accepts direct or indirect reimbursement or 
     compensation for the item from a client or a firm of which 
     the individual is a member or employee.
       ``(3) For purposes of clause (2), indirect reimbursement or 
     compensation for an item includes an expenditure from an 
     expense account and a fee charged by a lobbyist for the 
     purpose of compensating the lobbyist for the cost of the 
     item.
       ``(b)(1) Except as prohibited by paragraph 1(a)(1) a 
     Member, officer, or employee may accept an offer of free 
     attendance at a widely attended convention, conference, 
     symposium, forum, panel discussion, dinner, reception, or 
     similar event, provided by the sponsor of the event, if--
       ``(A) the Member, officer, or employee participates in the 
     event as a speaker or a panel participant, by presenting 
     information related to Congress or matters before Congress, 
     or by performing a ceremonial function appropriate to his or 
     her official position; or
       ``(B) attendance of the event is appropriate to the 
     performance of the official duties of the Member, officer, or 
     employee.
       ``(2) A Member, officer, or employee who attends an event 
     described in clause (1) of this subparagraph may accept--
       ``(A) a sponsor's unsolicited offer of free attendance at 
     the event for an accompanying spouse if others in attendance 
     will generally be accompanied by spouses or if such 
     attendance is appropriate to assist in the representation of 
     the Senate; and
       ``(B) transportation and lodging in connection with the 
     event if authorized in accordance with paragraph 3.
       ``(3) Except as prohibited by paragraph 1(a)(1), a Member, 
     officer, or employee, or the spouse or dependent thereof, may 
     accept a sponsor's unsolicited offer of free attendance at a 
     charity event in which the Member, officer, or employee is a 
     participant. Reimbursement for transportation and lodging may 
     not be accepted in connection with the event.
       ``(4) For purposes of this paragraph, the term `free 
     attendance' may include waiver of all or part of a conference 
     or other fee or the provision of food, refreshment, 
     entertainment, and instructional materials furnished to all 
     attendees as an integral part of the event. The term does not 
     include entertainment collateral to the event, or meals taken 
     other than in a group setting with all or substantially all 
     other attendees.
       ``(c) For the purpose of this rule--
       ``(1) The term `client' means any person who employs or 
     retains a lobbyist or a foreign agent to appear or work on 
     such person's behalf.
       ``(2) The term `market value', when applied to a gift means 
     the retail cost a person would incur to purchase the gift. 
     The market value of a gift of a ticket entitling the holder 
     to food, refreshments, or entertainment is the retail cost of 
     similar food, refreshments, or entertainment.
       ``(d) When it is not practicable to return a tangible item 
     because it is perishable, the item may, at the discretion of 
     the recipient, be given to an appropriate charity, shared 
     within the recipient's office, or destroyed.
       ``3. (a)(1) Except as prohibited by paragraph 1(a)(1), a 
     reimbursement (including payment in kind) to a Member, 
     officer, or employee for necessary transportation, lodging 
     and related expenses for travel to a meeting, speaking 
     engagement, factfinding trip or similar event in connection 
     with the duties of the Member, officer, or employee as an 
     officeholder shall be deemed to be a reimbursement to the 
     Senate and not a gift prohibited by paragraph 1, if the 
     Member, officer, or employee receives advance authorization 
     to accept reimbursement and discloses the expenses reimbursed 
     or to be reimbursed and the authorization through the 
     Secretary of the Senate as soon as practicable after the 
     travel is completed.
       ``(2) Events, the activities of which are substantially 
     recreational in nature, shall not be considered to be in 
     connection with the duties of a Member, officer, or employee 
     as an officeholder.
       ``(b) Each advance authorization to accept reimbursement 
     shall be signed by the appropriate Member (or, in the case of 
     an employee of a committee, the appropriate committee 
     chairman) and shall include--
       ``(1) the name of the Member, officer, or employee;
       ``(2) the name of the person who will make the 
     reimbursement;
       ``(3) the time, place, and purpose of the travel; and
       ``(4) a determination that the travel is in connection with 
     the duties of the Member, officer, or employee as an 
     officeholder and would not create the appearance that the 
     Member, officer, or employee is using public office for 
     private gain.
       ``(c) Each disclosure of expenses reimbursed or to be 
     reimbursed shall be signed by the appropriate Member (or, in 
     the case of an employee of a committee, the appropriate 
     committee chairman) and shall include--
       ``(1) total transportation expenses reimbursed or to be 
     reimbursed;
       ``(2) total lodging expenses reimbursed or to be 
     reimbursed;
       ``(3) disclosure of any other expenses reimbursed or to be 
     reimbursed (with the exception of any items that may properly 
     be accepted pursuant to paragraphs 1 and 2); and
       ``(4) a determination that all such expenses are necessary 
     transportation, lodging, and related expenses as defined in 
     this paragraph.
       ``(d) For the purposes of this paragraph, the term 
     `necessary transportation, lodging, and related expenses'--
       ``(1) includes reasonable expenses that are necessary for 
     travel for a period that may not exceed 3 days exclusive of 
     traveltime within the United States or 7 days exclusive of 
     traveltime outside of the United States unless approved in 
     advance by the Ethics Committee;
       ``(2) is limited to expenditures for transportation, 
     lodging, conference fees and materials, and meals offered to 
     all attendees as an integral part of the event, including 
     reimbursement for necessary transportation, whether or not 
     such transportation occurs within the periods described in 
     clause (1); and
       ``(3) does not include expenditures for recreational 
     activities, or entertainment other than that provided to all 
     attendees as an integral part of the event.
       ``(e) The Secretary of the Senate shall--
       ``(1) make available to the public all advance 
     authorizations and disclosures of reimbursement filed 
     pursuant to subparagraph (a) as soon as possible after they 
     are filed; and
       ``(2) publish an annual report summarizing (by Member, 
     officer, or employee) travel expenses that are reimbursed 
     pursuant to this paragraph and aggregate more than $250 from 
     any one source.
       ``4. (a) Notwithstanding any other provision of this rule, 
     a Member, officer, or employee of the Senate may participate 
     in a program, the principal objective of which is 
     educational, sponsored by a foreign government or a foreign 
     educational or charitable organization involving travel to a 
     foreign country paid for by that foreign government or 
     organization if such participation is not in violation of any 
     law and if the appropriate Member or committee chairman has 
     determined that participation in such program is in the 
     interests of the Senate and the United States.
       ``(b) Any Member who accepts an invitation to participate 
     in any such program shall notify the Secretary of the Senate 
     in writing of his acceptance. A Member shall also notify the 
     Secretary in writing whenever he has permitted any officer or 
     employee whom he supervises (within the meaning of paragraph 
     11 of rule XXXVII) to participate in any such program. The 
     Secretary shall place in the Congressional Record a list of 
     all individuals participating; the supervisors of such 
     individuals, where applicable; and the nature and itinerary 
     of such program. No Member, officer, or employee may accept 
     funds in connection with participation in a program permitted 
     under subparagraph (a) if such funds are not used for 
     necessary food, lodging, transportation, and related expenses 
     of the Member, officer, or employee.
       ``5. The Committee on Rules and Administration is 
     authorized to adjust the $20 gift limit established in 
     paragraph 1 on a periodic basis, to the extent necessary to 
     adjust for inflation.''.

     SEC. 3. AMENDMENT TO THE HOUSE RULES.

       Clause 4 of rule XLIII of the Rules of the House of 
     Representatives is amended to read as follows:
       ``4. (a)(1) No Member, officer, or employee of the House of 
     Representatives, or the spouse thereof, shall knowingly 
     accept--
       ``(A) any gift provided directly or indirectly by a person 
     registered as a lobbyist or a foreign agent under the Federal 
     Regulation of Lobbying Act, the Foreign Agents Registration 
     Act, or any successor statute;
       ``(B) any gift from any other person.
       ``(2) For the purpose of this clause, the term `gift' means 
     any gratuity, favor, discount, entertainment, hospitality, 
     loan, forbearance, or other item having monetary value. The 
     term includes gifts of services, training, transportation, 
     lodging, and meals, whether provided in kind, by purchase of 
     a ticket, payment in advance, or reimbursement after the 
     expense has been incurred.
       ``(3)(A) The restrictions in subparagraph (a) shall apply 
     to any financial contribution or expenditure relating to a 
     conference, retreat, or similar event for or on behalf of 
     Members, officers, or employees.
       ``(B) The following items are subject to the restrictions 
     in subparagraph (1)(A)--
       ``(i) an item provided by a lobbyist or a foreign agent 
     which is paid for, charged to, or reimbursed by a client or 
     firm of such lobbyist or foreign agent;
       ``(ii) an item provided by a lobbyist or a foreign agent to 
     an entity that is maintained or controlled by a Member, 
     officer, or employee;
       ``(iii) a charitable contribution made on the basis of a 
     designation, recommendation, or other specification made to a 
     lobbyist or a foreign agent by a Member, officer, or employee 
     (not including a mass mailing or other solicitation directed 
     to a broad category of the general public);
       ``(iv) a contribution or other payment by a lobbyist or 
     foreign agent to a legal expense fund established for the 
     benefit of a Member, officer, or employee; and
       ``(v) a contribution, as defined in the Federal Campaign 
     Act of 1971 (2 U.S.C. 431 et seq.) that is made by a 
     lobbyist, foreign agent, or Political Action Committee, to a 
     Member; and
       ``(C) a charitable contribution (as defined in section 
     170(c) of the Internal Revenue Code of 1986) made by a 
     lobbyist or a foreign agent in lieu of an honorarium.
       ``(4) The following items are not gifts subject to the 
     restrictions in subparagraph (1):
       ``(A) Any item for which the Member, officer, or employee 
     pays the market value.
       ``(B) A contribution, as defined in the Federal Election 
     Campaign Act of 1971 (2 U.S.C. 431 et seq.) that is lawfully 
     made under that Act except as provided in subparagraph 
     (3)(B)(v).
       ``(C) Anything provided under circumstances that clearly 
     indicate, in accordance with paragraph (b)(1), that it is 
     provided for a nonbusiness purpose and is motivated by a 
     family relationship or personal friendship and not by the 
     position of the Member, officer, or employee (subject to 
     prior approval by the Committee on Standards of Official 
     Conduct in the case of a gift to a Member, officer, or 
     employee in excess of $250 that is provided on the basis of 
     personal friendship and disclosure under the Ethics in 
     Government Act of a gift to a spouse of a Member in excess of 
     $250 that is provided on the basis of personal friendship).
       ``(D) Items which are not used and which are promptly 
     returned to the donor.
       ``(E) A food or refreshment item of minimal value, such as 
     a soft drink, coffee, or doughnut offered other than as part 
     of a meal.
       ``(F) Benefits resulting from the business, employment, or 
     other outside activities of the spouse of a Member, officer, 
     or employee, if such benefits are customarily provided others 
     in similar circumstances.
       ``(G) Pension and other benefits resulting from continued 
     participation in an employee welfare and benefits plan 
     maintained by a former employer.
       ``(H) Informational materials that are sent to the office 
     of the Member, officer, or employee in the form of books, 
     articles, periodicals, other written materials, audio tapes, 
     videotapes, or other forms of communication.
       ``(5) The restrictions in clauses (B) and (C) of 
     subparagraph (1) shall not apply to the following:
       ``(A) Meals, lodging, and other benefits--
       ``(i) resulting from the outside business or employment 
     activities of the Member, officer, or employee (or other 
     outside activities that are not connected to the duties of 
     the Member, officer, or employee as an officeholder), if such 
     benefits have not been offered or enhanced because of the 
     official position of the Member, officer, or employee and are 
     customarily provided to others in similar circumstances; or
       ``(ii) customarily provided by a prospective employer in 
     connection with bona fide employment discussions.
       ``(B) Awards or prizes which are given to competitors in 
     contests or events open to the public, including random 
     drawings.
       ``(C) Honorary degrees and other bona fide awards presented 
     in recognition of public service and available to the general 
     public (and associated meals and entertainment provided in 
     the presentation of such degrees and awards).
       ``(D) Donations of products from the State that the Member 
     represents that are intended primarily for promotional 
     purposes, such as display or free distribution, and are of 
     minimal value to any individual recipient.
       ``(E) Meals and entertainment provided to a Member or an 
     employee of a Member in the Member's home State having, 
     subject to reasonable limitations, to be established by the 
     Committee on Standards of Official Conduct.
       ``(F) Food and attendance provided at an event sponsored by 
     a political organization described in section 527(e) of the 
     Internal Revenue Code of 1986.
       ``(G) Training provided to a Member, officer, or employee, 
     if such training is in the interest of the House of 
     Representatives.
       ``(H) Bequests, inheritances, and other transfers at death.
       ``(I) Any item, the receipt of which is authorized by the 
     Foreign Gifts and Declarations Act, the Mutual Education and 
     Cultural Exchange Act, or any other statute.
       ``(J) Anything which is paid for by the Government or 
     secured by the Government under a Government contract.
       ``(K) A gift of personal hospitality of an individual, as 
     defined in section 109(14) of the Ethics in Government Act.
       ``(L) Free attendance at an event permitted pursuant to 
     paragraph (b)(1).
       ``(M) Opportunities and benefits which are--
       ``(i) available to the public or to a class consisting of 
     all Federal employees, whether or not restricted on the basis 
     of geographic consideration;
       ``(ii) offered to members of a group or class in which 
     membership is unrelated to congressional employment;
       ``(iii) offered to members of an organization, such as an 
     employees' association or congressional credit union, in 
     which membership is related to congressional employment and 
     similar opportunities are available to large segments of the 
     public through organizations of similar size;
       ``(iv) offered to any group or class that is not defined in 
     a manner that specifically discriminates among Government 
     employees on the basis of branch of Government or type of 
     responsibility, or on a basis that favors those of higher 
     rank or rate of pay;
       ``(v) in the form of loans from banks and other financial 
     institutions on terms generally available to the public; or
       ``(vi) in the form of reduced membership or other fees for 
     participation in organization activities offered to all 
     Government employees by professional organizations if the 
     only restrictions on membership relate to professional 
     qualifications.
       ``(N) A plaque, trophy, or other memento of modest value.
       ``(O) An item for which, in an unusual case, a waiver is 
     granted by the Committee on Standards of Official Conduct.
       ``(b)(1)(A) In determining if the giving of an item is 
     motivated by a family relationship or personal friendship, at 
     least the following factors shall be considered:
       ``(i) The history of the relationship between the 
     individual giving the item and the individual receiving the 
     item, including whether or not items have previously been 
     exchanged by such individuals.
       ``(ii) Whether the item was purchased by the individual who 
     gave the item.
       ``(iii) Whether the individual who gave the item also at 
     the same time gave the same or similar item to other Members, 
     officers, or employees.
       ``(B) The giving of an item shall not be considered to be 
     motivated by a family relationship or personal friendship if 
     the individual providing the item--
       ``(i) seeks to deduct the value of such item as a business 
     expense on the individual's income tax return; or
       ``(ii) accepts direct or indirect reimbursement or 
     compensation for the item from a client or a firm of which 
     the individual is a member or employee.
       ``(C) For purposes of clause (B), indirect reimbursement or 
     compensation for an item includes an expenditure from an 
     expense account and a fee charged by a lobbyist for the 
     purpose of compensating the lobbyist for the cost of the 
     item.
       (2)(A) Except as prohibited by paragraph (a)(1)(A) a 
     Member, officer, or employee may accept an offer of free 
     attendance at a widely attended convention, conference, 
     symposium, forum, panel discussion, dinner, reception, or 
     similar event, provided by the sponsor of the event if--
       ``(i) the Member, officer, or employee participates in the 
     event as a speaker or a panel participant, by presenting 
     information related to Congress or matters before Congress, 
     or by performing a ceremonial function appropriate to his or 
     her official position; or
       ``(ii) attendance of the event is appropriate to the 
     performance of the official duties of the Member, officer, or 
     employee.
       ``(B) A Member, officer, or employee who attends an event 
     described in clause (A) of this subparagraph may accept--
       ``(i) a sponsor's unsolicited offer of free attendance at 
     the event for an accompanying spouse if others in attendance 
     will generally be accompanied by spouses or if such 
     attendance is appropriate to assist in the representation of 
     the House of Representatives; and
       ``(ii) transportation and lodging in connection with the 
     event if authorized in accordance with paragraph (c).
       ``(C) Except as prohibited by paragraph (a)(1)(A), a 
     Member, officer, or employee, or the spouse or dependent 
     thereof, may accept a sponsor's unsolicited offer of free 
     attendance at a charity event in which the Member, officer, 
     or employee is a participant. Reimbursement for 
     transportation and lodging may not be accepted in connection 
     with the event.
       ``(D) For purposes of this paragraph, the term `free 
     attendance' may include waiver of all or part of a conference 
     or other fee or the provision of food, refreshment, 
     entertainment, and instructional materials furnished to all 
     attendees as an integral part of the event. The term does not 
     include entertainment collateral to the event, or meals taken 
     other than in a group setting with all or substantially all 
     other attendees.
       ``(3) For the purpose of this clause--
       ``(A) The term `client' means any person who employs or 
     retains a lobbyist or a foreign agent to appear or work on 
     such person's behalf.
       ``(B) The term `market value', when applied to a gift means 
     the retail cost a person would incur to purchase the gift. 
     The market value of a gift of a ticket entitling the holder 
     to food, refreshments, or entertainment is the retail cost of 
     similar food, refreshments, or entertainment.
       ``(4) When it is not practical to return a tangible item 
     because it is perishable, the item may, at the discretion of 
     the recipient, be given to an appropriate charity, shared 
     within the recipient's office, or destroyed.
       ``(c)(1)(A) Except as prohibited by paragraph (a)(1)(A), a 
     reimbursement (including payment in kind) to a Member, 
     officer, or employee for necessary transportation, lodging 
     and related expenses for travel to a meeting, speaking 
     engagement, factfinding trip or similar event in connection 
     with the duties of the Member, officer, or employee as an 
     officeholder shall be deemed to be a reimbursement to the 
     House of Representatives and not a gift prohibited by 
     paragraph (a), if the Member, officer, or employee receives 
     advance authorization to accept reimbursement and discloses 
     the expenses reimbursed or to be reimbursed and the 
     authorization through the Clerk of the House of 
     Representatives as soon as practicable after the travel is 
     completed.
       ``(B) Events, the activities of which are substantially 
     recreational in nature, shall not be considered to be in 
     connection with the duties of a Member, officer, or employee 
     as an officeholder.
       ``(2) Each advance authorization to accept reimbursement 
     shall be signed by the appropriate Member (or, in the case of 
     an employee of a committee, the appropriate committee 
     chairman) and shall include--
       ``(A) the name of the Member, officer, or employee;
       ``(B) the name of the person who will make the 
     reimbursement;
       ``(C) the time, place, and purpose of the travel; and
       ``(D) a determination that the travel is in connection with 
     the duties of the Member, officer, or employee as an 
     officeholder and would not create the appearance that the 
     Member, officer, or employee is using public office for 
     private gain.
       ``(3) Each disclosure of expenses reimbursed or to be 
     reimbursed shall be signed by the appropriate Member (or, in 
     the case of an employee of a committee, the appropriate 
     committee chairman) and shall include--
       ``(A) total transportation expenses reimbursed or to be 
     reimbursed;
       ``(B) total lodging expenses reimbursed or to be 
     reimbursed;
       ``(C) disclosure of any other expenses reimbursed or to be 
     reimbursed (with the exception of any items that may properly 
     be accepted pursuant to clauses (a) and (b)); and
       ``(D) a determination that all such expenses are necessary 
     transportation, lodging, and related expenses as defined in 
     this paragraph.
       ``(4) For the purposes of this paragraph, the term 
     `necessary transportation, lodging, and related expenses'--
       ``(A) includes reasonable expenses that are necessary for 
     travel for a period that may not exceed 3 days exclusive of 
     traveltime within the United States or 7 days exclusive of 
     traveltime outside of the United States unless approved in 
     advance by the Committee on Standards of Official Conduct;
       ``(B) is limited to expenditures for transportation, 
     lodging, conference fees and materials, and meals offered to 
     all attendees as an integral part of the event, including 
     reimbursement for necessary transportation, whether or not 
     such transportation occurs within the periods described in 
     clause (1); and
       ``(C) does not include expenditures for recreational 
     activities, or entertainment other than that provided to all 
     attendees as an integral part of the event.
       ``(5) The Clerk of the House of Representatives shall--
       ``(A) make available to the public all advance 
     authorizations and disclosures of reimbursement filed 
     pursuant to subparagraph (1) as soon as possible after they 
     are filed; and
       ``(B) publish an annual report summarizing (by Member, 
     officer, or employee) travel expenses that are reimbursed 
     pursuant to this paragraph and aggregate more than $250 from 
     any one source.
       ``(d)(1) Notwithstanding any other provision of this 
     clause, a Member, officer, or employee of the House of 
     Representatives may participate in a program, the principal 
     objective of which is educational, sponsored by a foreign 
     government or a foreign educational or charitable 
     organization involving travel to a foreign country paid for 
     by that foreign government organization if such participation 
     is not in violation of any law and if the appropriate Member 
     or committee chairman has determined that participation in 
     such program is in the interests of the House of 
     Representatives and the United States.
       ``(2) Any Member who accepts an invitation to participate 
     in any such program shall notify the Clerk of the House of 
     Representatives in writing of his acceptance. A Member shall 
     also notify the a Clerk in writing whenever he has permitted 
     any officer or employee whom he supervises to participate in 
     any such program. The Clerk shall place in the Congressional 
     Record a list of all individuals participating; the 
     supervisors of such individuals, where applicable; and the 
     nature and itinerary of such program.
       ``(3) No Member, officer, or employee may accept funds in 
     connection with participation in a program permitted under 
     subparagraph (a) if such funds are not used for necessary 
     food, lodging, transportation, and related expenses of the 
     Member, officer, or employee.
       ``(e) The Committee on Standards of Official Conduct is 
     authorized to adjust the $20 gift limit established in 
     paragraph (a) on a periodic basis, to the extent necessary to 
     adjust for inflation.''.

     SEC. 4. AMENDMENT TO THE ETHICS IN GOVERNMENT ACT.

       Section 102(a)(2)(A) of the Ethics in Government Act (5 
     U.S.C. App. 6, section 102), is amended by--
       (1) inserting a dash after ``and the value of'';
       (2) striking ``all gifts aggregating'' and inserting the 
     following:
       ``(i) all gifts aggregating'';
       (3) striking the period at the end of the subparagraph and 
     inserting ``; and''; and
       (4) adding at the end the following:
       ``(ii) all gifts, other than food, lodging, or 
     entertainment received as personal hospitality of an 
     individual, having a value of $20 or more that are--
       ``(I) provided by a person required to register under the 
     Federal Regulation of Lobbying Act, the Foreign Agents 
     Registration Act, or any successor Act; and
       ``(II) would be prohibited by section 7353 of title 5, 
     United States Code, but for a personal friendship exception 
     contained in implementing rules and regulations issued 
     pursuant to in subsection (b)(1) of such section.''.

     SEC. 5. POST-EMPLOYMENT REFORM ACT OF 1994.

       (a) Short Title.--This section may be cited as the ``Post-
     Employment Reform Act of 1994''.
       (b) Former Agency Ban.--
       (1) Executive branch.--Section 207(c)(1) of title 18, 
     United States Code, is amended by striking ``within 1 year 
     after'' and inserting ``within 2 years after''.
       (2) Congress.--Section 207(e) of title 18, United States 
     Code, is amended in paragraphs (1)(A), (2)(A), (3), (4)(A), 
     and (5)(A), by striking ``within 1 year after'' and inserting 
     ``within 2 years after''.
       (3) Conforming amendment relating to pay levels.--(A) 
     Section 207(c)(2)(ii) of title 18, United States Code, is 
     amended by striking ``the rate of basic pay payable for level 
     V of the Executive Schedule'' and inserting ``120 percent of 
     the minimum rate of basic pay payable for GS-15 of the 
     General Schedule''.
       (B) Section 207(e)(6) of title 18, United States Code, is 
     amended--
       (i) in subparagraph (A) by striking ``which is 75 percent 
     of the basic rate of pay payable for a Member of the House of 
     Congress in which such employee was employed'' and inserting 
     ``which is 120 percent of the minimum rate of basic pay 
     payable for GS-15 of the General Schedule''; and
       (ii) in subparagraph (B) by striking ``payable for level V 
     of the Executive Schedule'' and inserting ``which is 120 
     percent of the minimum rate of basic pay payable for GS-15 of 
     the General Schedule''.
       (c) Foreign Entities Ban.--Section 207(f) of title 18, 
     United States Code, is amended--
       (1) in paragraph (1) by striking ``within 1 year'' and 
     inserting ``within 2 years'';
       (2) by striking paragraph (2); and
       (3) by redesignating paragraph (3) as paragraph (2) and 
     inserting in such paragraph before the period the following: 
     ``, or a corporation, partnership, or other nongovernment 
     entity which is created or organized under the laws of a 
     foreign country or which has its principal place of business 
     outside the United States''.
       (d) Restrictions on Very Senior Personnel.--Section 
     207(d)(1) of title 18, United States Code, is amended by 
     striking ``within 1 year'' and inserting ``within 2 years''.
       (e) Trade and Treaty Negotiation Ban.--Section 207(b)(1) of 
     title 18, United States Code, is amended by striking ``for a 
     period of 1 year'' and inserting ``for a period of 10 
     years''.
       (f) Effective Date.--This section shall be effective after 
     January 1, 1995.

     SEC. 6. PROHIBITION ON CONTRIBUTIONS TO LEGAL DEFENSE FUNDS.

       No person registered as a lobbyist or a foreign agent may 
     make a contribution or other payment to a legal expense fund 
     established for the benefit of an officer or employee of the 
     executive branch.

     SEC. 7. REPEAL OF OBSOLETE PROVISION.

       Section 901 of the Ethics Reform Act of 1989 (2 U.S.C. 31-
     2) is repealed.

     SEC. 8. PROHIBITION ON LOBBYISTS.

       No person registered as a lobbyist or a foreign agent under 
     the Federal Regulation of Lobbying Act, the Foreign Agents 
     Registration Act, or any successor statute shall provide a 
     gift to any Member, officer, or employee of the Senate or the 
     House of Representatives, or a spouse or dependent of the 
     Member, officer, or employee, if the lobbyist or foreign 
     agent knows that the acceptance of the gift by the Member, 
     officer, employee, spouse, or dependent would violate Rule 
     XXXV of the Standing Rules of the Senate or clause 4 of Rule 
     XLIII of the Rules of the House of Representatives.

     SEC. 9. EXERCISE OF CONGRESSIONAL RULEMAKING POWER.

       Except for sections 4, 5, and 6, this Act is enacted by 
     Congress--
       (1) as an exercise of the rulemaking power of the Senate 
     and the House of Representatives, respectively, and 
     accordingly, they shall be considered as part of the rules of 
     each House, respectively, or of the House to which they 
     specifically apply, and such rules shall supersede other 
     rules only to the extent that they are inconsistent 
     therewith; and
       (2) with full recognition of the constitutional right of 
     either House to change such rules (insofar as they relate to 
     that House) at any time and in the same manner and to the 
     same extent as in the case of any other rule of that House.

     SEC. 10. GIFTS.

       The Senate Committee on Rules and Administration, on behalf 
     of the Senate, may accept gifts provided they do not involve 
     any duty, burden, or condition, or are not made dependent 
     upon some future performance by the United States. The 
     Committee on Rules and Administration is authorized to 
     promulgate regulations to carry out this section.

     SEC. 11. LEGAL EXPENSE FUND.

       No provision of this Act shall be interpreted to limit a 
     contribution or other payment to a legal expense fund 
     established for the benefit of a Member, officer, or employee 
     by any person other than a lobbyist or a foreign agent.

     SEC. 12. MEALS AND ENTERTAINMENT.

       The rules on acceptance of meals and entertainment provided 
     to a Member or an employee of a Member in the Member's home 
     State prior to the adoption of reasonable limitations by the 
     appropriate committees shall be the rules in effect on the 
     day before the effective date of this Act.

     SEC. 13. SENSE OF THE SENATE.

       It is the sense of the Senate that the conferees to the 
     upcoming Senate-House conference on omnibus crime legislation 
     should totally reject the so-called Racial Justice Act 
     provisions contained in the crime bill passed by the House of 
     Representatives on April 21, 1994.

     SEC. 14. EFFECTIVE DATES.

       This Act and the amendments made by this Act shall become 
     effective on January 1, 1995.

  The title was amended so as to read: ``A bill to limit the acceptance 
of gifts, meals, and travel by Members of Congress and congressional 
staff, and for other purposes.''
  Mr. WELLSTONE. Mr. President, I move to reconsider the vote by which 
the bill was passed.
  Mr. MITCHELL. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________