[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.
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