[Congressional Record Volume 140, Number 122 (Tuesday, August 23, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: August 23, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
            CONSEQUENCES OF FAILING TO WAIVE THE BUDGET ACT

  Mrs. FEINSTEIN. Mr. President, tedious though it may be, I think it 
is important to understand exactly what the Republican leadership's 
proposed point of order to kill the crime bill will and will not do.
  To that end, we asked the Congressional Research Service to analyze 
it. I ask unanimous consent that the CRS' memorandum, dated August 22, 
be printed in full at the end of my remarks.
  The PRESIDENT pro tempore. Without objection, the material will be 
included at the end of the remarks by the Senator.
  (See exhibit 1.)
  Mrs. FEINSTEIN. While the crime bill killer's gambit has a well-
polished veneer of reasonableness, like all veneers, it just takes a 
scratch of the surface to show the ugliness underneath.
  The bottom line is, if 60 Senators do not vote to waive the Budget 
Act, because the crime bill creates a trust fund, Congress--not just 
the Senate--will be back almost at square one in the legislative 
process. As a result, we will not have a crime bill this year.
  Here is why. If the point of order is not defeated--waived, to be 
technical--the rules of the Congress permit the Senate no choice but to 
pick up the crime bill as it came to the Senate from the House before 
the first conference--that is the bill passed by the House after the 
Senate revised it, not as just refined after two conferences and round-
the-clock, bipartisan negotiations this past weekend.
  That means, to name just two controversial issues, the Senate will 
start over with a bill that does not contain the anti-assault-weapons 
provision and that does contain the Racial Justice Act over which this 
bill was nearly lost.
  To add assault weapons back in, we will need another separate vote in 
the Senate and before we get to that point, the bill as written now 
will be subject to unlimited killer amendments.
  The same will hold true for amendments to change or strike the racial 
justice provisions.
  And it gets worse from there. Even if the Senate is able to get the 
bill back to its original Senate-passed form on those two issues--
assault weapons in and the racial justice clause out--it will still be 
subject to other amendments, relevant and not, without limitation. 
Debate will not be limited either.
  But even after all that we still would not be done. It gets worse 
yet. Assuming that the Senate can reconstruct a reasonable bill despite 
all those obstacles, and that is quite an assumption, the new Senate 
bill will have to go back to the House for its review of all provisions 
not in the preconference version of the original House bill.
  Moreover, every provision of the House bill also will be subject to 
review and amendment unless expressly limited by the Rules Committee. 
That would provide another venue for unlimited opportunities to take 
the entire bill down.
  At best all of this will take more weeks and months that the American 
people, our police, our children, can ill afford. More weeks for them 
to be robbed, raped, shot, and terrified of violence even in their own 
homes.
  Congress has not passed a major crime bill since 1988. When I came to 
the Senate in 1992 I pledged to work as a member of the Judiciary 
Committee to break the gridlock that had stalled the crime bill for 
years. I pledged to support a Republican crime bill, if necessary. I 
pledged to support a Democratic crime bill, if necessary. But I pledged 
to do my level best to get a crime bill that had meaning, that truly 
would fight crime in America.
  When I proposed legislation to prospectively ban the manufacture, 
sale, and possession of semiautomatic assault weapons, I worked with 
Republicans and Democrats alike. Ten Republicans along with 46 
Democrats voted in favor of the amendment which is part of the crime 
bill conference report. Listening to the debate of the last 24 hours in 
the Senate, frankly, makes me angry and heartsick. As I understand it, 
it is the intention of the minority's leadership to reverse its 
position on the need for the crime bill trust fund--a need eloquently 
articulated on the floor by the senior Senator from Texas on May 19, 
1994. The Senator stated, quoting directly now:

       * * * the first thing I want our conferees to do is stay 
     with our funding mechanism. It was endorsed earlier in the 
     House and has been adopted three times in the Senate. Every 
     time we have gotten down to the goal line, trying to make it 
     the law of the land, it ended up being killed. I do not want 
     it to die this time. Without it, there are no prisons, no 
     additional police officers on the street, and no effective 
     crime bill. We cannot put people in jails we do not have.

  These are the words of the senior Senator from Texas who, today, is 
expected to propose the budget point of order against the crime bill 
trust fund, against the bipartisan conference report now before the 
Senate, and, as a result, against a crime bill in this Congress.
  I yield the floor.

                               Exhibit 1

                                   Congressional Research Service,


                                      the Library of Congress,

                                  Washington, DC, August 22, 1994.
     To: The Honorable Dianne Feinstein, Attention: Adam Eisgrau.
     From: Richard S. Beth, Specialist in the Legislative Process, 
         Government Division.
     Subject: Budget Act Point of Order on the ``Crime Bill,'' 
         H.R. 3355.
       This memorandum responds to your request for a description 
     of the procedural situation in the Senate on the conference 
     report on the crime bill, H.R. 3355. The House rejected (210-
     225) a special rule for consideration of this conference 
     report on August 11, but agreed to recommit the report to the 
     conference committee on Saturday, August 20, and agreed (235-
     195) to a new report of the conference committee on Sunday, 
     August 21. This conference report is now before the Senate.
       The matter submitted to conference was a House amendment to 
     a Senate amendment to the House bill, H.R. 3355. Accordingly, 
     the conference report proposed that both chambers agree to a 
     conference substitute for the House amendment to the Senate 
     amendment to the bill. A point of order was raised in the 
     Senate against the conference substitute on the grounds that 
     it violated the Budget Act.
       The Senate may entertain a motion to waive the Budget Act. 
     Senate adoption of this motion would protect the conference 
     report against the point of order, and the conference report 
     could then be voted on. However, to waive the Budget Act in 
     this case would require a three-fifths vote of the full 
     Senate (60 votes).
       If the Budget Act waiver is defeated, or not offered, and 
     the point of order is sustained, the conference report as a 
     whole will fall, for a conference report represents a package 
     that cannot be broken up. The Senate will then have before it 
     again the House amendment to the Senate amendment to the 
     bill. The Senate disagreed to this House amendment in order 
     to go to conference, and is therefore still in the stage of 
     disagreement with respect to this amendment.
       At this point the Senate would have three alternatives. It 
     could not recommit the conference report to the committee of 
     conference, because the House has dissolved the committee of 
     conference by its action in adopting the conference 
     report. The Senate could, however, move to insist on its 
     disagreement to the House amendment and request a new 
     conference thereon. At such a conference, formally, all 
     points in disagreement between the Senate amendment and 
     the House amendment to it would be subject to 
     renegotiation. Any new conference agreement would have to 
     be accepted anew by both houses of Congress before the 
     bill could be cleared for the President.
       Another course of action available to the Senate if the 
     conference report falls on a point of order, would be to 
     entertain a motion to recede from its disagreement to the 
     House amendment and concur in the House amendment. This 
     action would clear the bill for the President, but because it 
     would involve Senate acceptance of the entire original House 
     position it is unlikely in the circumstances.
       The third available course of action for the Senate would 
     be to entertain a motion to recede from its disagreement to 
     the House amendment and concur in the House amendment with a 
     further amendment. This motion is known for short as a motion 
     to ``recede and concur with an amendment.'' the ``further 
     amendment'' proposed in this motion could represent the same 
     substance as the defeated conference report, with certain 
     agreed-upon changes. However, if the ``further amendment'' 
     contained the same language that made the conference report 
     subject to a Budget Act point of order, the same point of 
     order could be raised against the motion to recede and concur 
     with an amendment, and if sustained, that motion to recede 
     and concur with an amendment would fall. A different motion 
     to recede and concur with an amendment (or simply to recede 
     and concur) could then be offered.
       While a motion to recede and concur with an amendment was 
     pending, it would be subject to debate and to amendment in 
     two degrees. In this process all issues dealt with by the 
     conference committee could be reopened, and proposals could 
     be made to bring in additional matters not now dealt with by 
     the bill. If the Senate adopted such an amendment, the body 
     would then have to send this new proposal to the House to see 
     if the House would accept it. Only if the House accepted the 
     same amendment could the measure be cleared for the 
     President.
       Under the practices of Congress, the Senate's amendment to 
     the House amendment to the Senate amendment to the House bill 
     would be considered an amendment in the second degree. The 
     House would therefore have before it only the alternatives of 
     concurring in the Senate amendment or disagreeing with it. In 
     the latter case it could also request a new conference. By 
     adopting a special rule for the purpose, the House could also 
     permit itself to concur in the Senate amendment with a 
     further amendment. This further amendment might again raise 
     additional new issues or reopen existing ones. If the House 
     adopted such an amendment, it would then have to send its new 
     proposal back to the Senate to see if the Senate would accept 
     it. The Senate would again have the options of concurring, 
     disagreeing (and going to a new conference), or (by unanimous 
     consent) concurring with a further amendment.
       By these means, the process of amendments between the 
     Houses, or of shifting between such amendments and attempts 
     to resolve differences through conference, could in principle 
     continue indefinitely. This memorandum will not pursue any 
     possible additional iterations of the process.
       I trust this information meets your needs. Please call me 
     at x78667 if I can be of further assistance.

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