[Congressional Record Volume 140, Number 62 (Wednesday, May 18, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 18, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
                          TAKINGS LEGISLATION

  Mr. LEAHY. Mr. President, all too often, an organized minority can 
impose its will on the public as a whole. The opponents of regulation 
often argue that environmental extremists impose their will on the 
general public. Now the shoe is on the other foot.
  Recently, a well organized lobby has developed around the so-called 
takings issue. The proponents of this theory believe that whenever the 
Government limits to use of private property, the landowner must be 
compensated.
  This view is extreme. Never in the tradition of Anglo-American law 
has anyone been permitted to use his property in a way that hurts his 
neighbor. Common law called it nuisance. Common sense says that your 
freedom ends where your neighbor's nose begins.
  This extreme theory of what constitutes a takings would undermine 
everything from child labor laws to public health. Should a town have 
to pay a landowner to stop him from building a hazardous waste dump 
next to the town reservoir?
  Our Constitution appropriately provides for compensation for 
citizens' private property taken by the Federal Government. However, 
the Constitution was never meant to allow an individual to use their 
property to the detriment of the public good.
  The Senate has considered and passed, on several occasions, 
legislation requiring that all new environmental regulations be 
extensively studied to see if they are consistent with the extreme view 
of takings. The proposed amendment echoes these earlier efforts.
  These studies might be intellectually stimulating, if they were not 
so expensive.
  How much will they cost the Government and the taxpayers? A 
conservative estimate puts it at over $150 million a year.
  Legislation similar to this proposal has been considered in State 
legislatures across our Nation. The Governor of Kansas, Joan Finney, 
recently vetoed a so-called takings bill which would have cost that 
State $1.5 million a year to produce new reports and studies.
  A takings provision that costs Kansas $1.5 million, will cost the 
Federal Government, which is 100 times larger, over $150 million. That 
is why I have asked President Clinton to conduct an assessment of the 
costs of this type of legislation. This proposal and others like it are 
being touted as a way to reel in the Federal Government to the benefit 
of taxpayers. They are not.
  As Governor Finney said,

       The language of the takings legislation is vague and 
     unnecessary and creates bureaucracy which would divert at 
     least one million dollars in taxpayer's money from more 
     productive uses.

  Let me give you an example of how destructive this amendment could 
be. When I became chairman of the Senate Agriculture Committee I made 
it my top priority to extend the coverage of the Women, Infants, and 
Children Program to every child in America. This program makes sure 
that infants receive the nutrition they need in those crucial and 
formative, early years of life. This program has been praised by every 
administration and every assessment of its effectiveness.
  The committee found that the prices that WIC paid for baby formula 
varied widely. Where competitive bidding of WIC formula was required, 
its price was much lower than where it was not. So I put through 
legislation that required competitive bidding for the infant formula 
supplied to WIC recipients.
  This so lowered the price of formula, that now there are 1 million 
children receiving WIC assistance that could not receive it before--at 
no additional costs to the taxpayers.
  Now the big drug companies that produce infant formula do not like 
competitive bidding. It lowers the prices they receive for formula. If 
this amendment were law when that bill was passed, not only would the 
USDA have to do an extensive study on the effect of competitive bidding 
on the price of formula, it would have required a study of the effect 
that this would have had on everyone who made or sold infant formula in 
the United States. Now Congress knew it was going to cut the prices of 
infant formula when it passed the law. That is why it passed the law. 
But the waste of the taxpayers funds for this study would not have been 
the real tragedy.
  The real tragedy is that the drug companies could have gone to court 
and blocked this competitive bidding requirement from going into 
effect. This would have meant that millions of children would not have 
received the infant formula they need.
  As the chairman of the Agriculture Committee I am deeply disturbed 
about the implications that this proposed amendment would have on 
agriculture programs.
  This amendment will cripple disaster programs. Aid to farmers hurt by 
a disaster could be argued to be a taking from farmers benefiting from 
a disaster.
  This amendment will threaten the Conservation Reserve Program and any 
program like it in the future. Any action to extend or not extend 
contracts will have an impact on the property of farmers and the 
commodity market as a whole.
  This amendment will jeopardize our ability to protect our livestock 
and crops from pests and disease. The Secretary of Agriculture's 
ability to eradicate animal diseases and destroy invested material 
would be severely compromised.
  This amendment will cause fluctuations in commodity prices and 
supply. It will lower the overall quality of American produce and 
destroy markets for American agricultural products. All Federal 
marketing and promotion orders would be threatened by this amendment.
  As the chairman of a subcommittee of the Senate Appropriations 
Committee, I know how tight the discretionary spending available to 
each of the subcommittees is. Just a few weeks ago this Senate voted to 
reduce those levels $13 billion lower. Now we have an amendment which, 
conservatively, will require the U.S. Government to spend $150 million 
more to perform studies.
  I urge all of my fellow members of the Appropriations Committee to 
think carefully about this amendment. This proposal will be an immense 
unfunded mandate. Instead of the taxpayers funds being used to protect 
veterans health, to fund a space program, to rebuild our highway 
systems, to protect our public health and the environment, instead of 
providing disaster assistance to hard hit areas, instead of feeding 
children, instead of retraining workers, the legislation will require 
the Federal Government to spend $150 million on studies of a spurious 
legal theory.
  Just a few years ago, when the 1990 farm bill was on the floor, a 
Senator offered an amendment which said that USDA should do no more 
than 12 studies. The USDA reorganization bill, which passed the Senate 
by a 98 to 1 vote just 4 weeks ago, contained a provision, included at 
the request of the ranking member of the committee, requiring that 30 
reports be done.
  And now, we have an amendment on this floor that will require the 
Government to spend $150 million on more studies.
  The fifth amendment to the Constitution does not require studies, it 
requires compensation if property is taken. These amendments are not 
about takings at all, they are about 150 million dollars' worth of 
studies that we do not need and that we cannot afford.
  Perhaps, we should do a cost-benefit analysis of legislation which 
tries to improve on the Constitution, but ends up costing $150 million.
  I urge my colleagues to think twice about this action.

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