[Congressional Record Volume 141, Number 8 (Friday, January 13, 1995)]
[Senate]
[Pages S928-S934]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNFUNDED MANDATE REFORM ACT
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 1, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (S. 1) to curb the practice of imposing unfunded
Federal mandates on States and local governments; to
strengthen the partnership between the Federal Government and
State, local and tribal governments; to end the imposition,
in the absence of full consideration by Congress, of Federal
mandates on State, local, and tribal governments without
adequate funding, in a manner that may displace other
essential governmental priorities; and to ensure that the
Federal Government pays the costs incurred by those
governments in complying with certain requirements under
Federal statutes and regulations, and for other purposes.
The Senate resumed consideration of the bill.
Pending:
Committee amendment on page 15, line 6.
The PRESIDING OFFICER. The pending question is the committee
amendment on page 15, line 6.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Thank you very much, Mr. President.
Mr. President, we have begun a good discussion on S. 1, a bill that
is designed to realign federalism so that our State and local partners
realize that they are indeed partners and not special interest groups
that are out there. It also pays attention to the private sector so
that we will know as a decisionmaking body the cost and the impact of
these mandates before we vote to impose them. Of course, it provides
for a waiver so that if we choose to take some altered course we may do
so.
It enhances our decisionmaking ability. As a result of many hours of
discussion yesterday where we talked about this, a number of Senators
were able to address some of their points and the support that they
have for this bill. Some raised concerns of specific aspects of that
bill. But as a result of that, we realize that reporters all across
America are beginning to truly focus on this issue by calling the city
halls and county courthouses and the school districts in their regions.
And they are asking the mayors and the county commissioners, ``What
about these unfunded mandates? Is this truly a problem and can you give
us some examples?'' So the stories are starting to come forward of what
these unfunded Federal mandates are, which are hidden Federal taxes.
In today's USA Today, for example, is a good story talking about
Columbus, OH, and the unfunded Federal mandates. Really Columbus, OH,
is one of those cities--Mayor Gregory Lashutka is not only an effective
mayor but a good friend of mine--one of the first cities to document
these unfunded Federal mandates. It has become a good source of
information for many of us.
I received in the mail, also, Mr. President, a letter. Because we
talked about the cities, the counties, and the States, we referenced
the schools. But I think this helps make the point about the impact on
the schools.
This is a letter from James B. Appleberry, president of the American
Association of State Colleges and Universities, and C. Peter Magrath,
president, National Association of State
[[Page S929]] Universities and Land-Grant Colleges. I would like to
just read a couple of statements that they make in their letter dated
January 6.
We write on behalf of the institutions----
--Which I just referenced.
in support of S. 1, the Unfunded Mandate Reform Act of 1995.
Together AASCU and NASULGC represent virtually all of the
nation's public four year colleges and universities,
enrolling more than 5.5 million students.
They go on to cite that:
Our associations have a long-standing public policy
position of discouraging congressional efforts to pass
legislation that imposes unfunded Federal mandates on the
states. We know that Federal mandates are generally for
worthy purposes, but our concern rests on the fact that
Federal mandates diminish a State's ability to address its
own priorities.
They go on to point out the reduction that they have experienced in
funding at the State level. They say:
In recent years, states have been forced to divert scarce
discretionary dollars from vital state programs in order to
comply with new Federal directives. Public higher education,
funded primarily from state discretionary funds, is one of
those areas where State appropriations have been severely
diminished as a result of newly mandated federal initiatives.
Since 1982, financial support of higher education from State
and local funds has dwindled from 7.6 percent of all revenues
to 6.2 percent in 1993. When inflation and decreased State
funding are taken into account, higher education's purchasing
power has dropped by $7.7 billion since 1990.
This reduction in funding is not happening because the
states have stopped valuing higher education, but rather
because unfunded Federal mandates have dried up all sources
of a State's discretionary revenue. The main response to
depleting state of discretionary funds available to public
colleges and universities has been to cut services and raise
tuition. The subsequent tuition increases force students is
to either borrow greater amounts or to forgo a postsecondary
education.
This is at the heart of the education of this Nation, but because of
these unfunded Federal mandates, the end result may be that students
are forgoing postsecondary education, students who would like to
continue in their educational opportunities.
What about the children at the elementary and secondary grade level?
This is the letter dated January 11, 1995, from Boyd Boehlje, who is
the president of the National School Boards Association. They state
that:
The National School Boards Association, on behalf of the
more than 95,000 locally elected school board members
nationwide, strongly supports S. 1, ``The Unfunded Mandate
Reform Act of 1995" and urges you to reject all weakening
amendments.
They go on to say that:
S. 1 will bring an open, accountable, and informed
decisionmaking process to future proposals and regulations
that impact school districts and other local and State
governments. School districts in your state need the
protection.
He says:
The bill is reasonable, workable, and long overdue. It has
our strongest support, and needs to move through the process
without weakening amendments.
Today, school children throughout the country are facing
the prospect of reduced classroom construction because the
Federal Government requires, but does not fund, services or
programs that local school boards are directed to implement.
School boards are not opposed to the goals of many of these
mandates, but we believe that Congress should be responsible
for funding the programs it imposes on school districts. Our
Nation's public school children must not be made to pay the
price for unfunded federal mandates.
Strong statements, Mr. President, from leaders of elementary,
secondary, as well as the universities of this Nation pointing out the
impact of unfunded Federal mandates on our children and on our students
of this country.
Mr. President, we have received the committee reports, one from the
Governmental Affairs Committee, the other from the Budget Committee.
They have now been presented to Members of the Senate. They have been
published. I know this was a concern of the Senator from West Virginia.
So again, that has been taken care of so that all Senators have the
opportunity to examine them.
Unanimous Consent Request
Mr. KEMPTHORNE. Mr. President, because the reports are now in
Senators' hands, I ask unanimous consent that the Republican planing
committee amendments be considered, en bloc, agreed en bloc, and the
motion to reconsider be laid upon the table with the following
exceptions: the amendment on page 25, the amendment on page 27, and the
amendment on page 33; I further ask unanimous consent that all adopted
committee amendments be considered as original text for the purpose of
further amendments.
The PRESIDING OFFICER. Is there objection?
Mr. PRYOR. Mr. President, reserving the right to object, if I might,
I want to compliment our distinguished friend from Idaho for his long-
time commitment to the goals and to the premises that this piece of
legislation represents. But I think, Mr. President, it needs to be said
that this is a far-reaching, a very, very far-reaching piece of
legislation.
It is the most far-reaching piece of legislation that this body, the
104th Congress of the U.S. Senate, has yet considered.
Mr. President, I sat through, the other morning, a very extensive
debate in the Committee on Governmental Affairs relative to this
particular piece of legislation. And in that committee, there were two
issues that very much concerned me, two issues that I am afraid, at
least for the moment, at that time were disposed of. One of those
issues was a vote taken by the committee relative to a committee
report. That committee report, by the way, as the Senator from Idaho
has now demonstrated, has been filed. We have that particular report
from the Committee on Governmental Affairs. However, the committee at
first voted not to accompany this bill with a committee report.
I want to compliment my friend from West Virginia, Senator Byrd, who
has in the last 2 days--in my opinion, justifiably so--requested,
before this measure be considered, a committee report from the other
committee of jurisdiction, which is the Committee on the Budget. In my
opinion, even though I am a member of the Governmental Affairs
Committee, the Budget Committee report is more meaningful to this
particular bill than the Governmental Affairs Committee report.
The Budget Committee has now made its report. It has been given to
the Senate, but only in the past few hours. This morning, we received
this particular report on the Unfunded Mandates Reform Act of 1995. We
now have the report. I must say, and tell my colleagues that it is no
news that since 10 o'clock, we have been in a meeting with Mr.
Greenspan, Alan Greenspan, relative to the financial and economic
crisis in Mexico. That has consumed most of our morning. We have been
in recess most of this Friday morning, I might add. I do not know how
many people have had the opportunity, I respectfully submit, to look at
this particular committee report.
Finally, I think the issue of a sunset of 3 years, which was left
unresolved by the Committee on Governmental Affairs, is an issue that I
think needs to be addressed as we proceed with this bill. A measure of
this far-reaching impact and consequence is a measure which, in my
opinion, at this time needs a careful consideration of a sunset
provision, where all of this measure would sunset at the end of 3
years, in order to afford the Congress --the House and Senate--the
mayors, Governors, and all of us who are involved in this vast
restructuring process, the opportunity to see if we have made the right
or the wrong decision, and to see if we need to make changes in this
particular concept that we have brought to this great country of ours.
So with that being said, Mr. President, I have reserved the right to
object, and I have not entered an objection. I see the distinguished
Senator from West Virginia; and I see the distinguished Senator from
Michigan, who has been very much involved in the formation of this
particular legislation.
I yield the floor at this time.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER (Mr. DeWine). The Senator from West Virginia.
Mr. BYRD. Mr. President, I must begin by saying that Senator
Kempthorne came to my office earlier and showed me this request. I am
much impressed with this Senator. He is a decent, fine Senator who
wants to move on with this bill. He is certainly extending every
courtesy and every cooperation that one could expect. I applaud him for
that.
[[Page S930]] As to the request itself, I was supplied this morning
with a copy of the report by the Committee on the Budget. I had said
yesterday a number of things; perhaps I should repeat some of them. I
said, first of all, that I am not taking on the role of traffic cop.
That is somebody else's job. It is not my job to be a traffic cop. Then
they say: Why, Senator Byrd, are you up here? Why are you here being a
traffic cop yesterday and today?
If that is the role I am being perceived as playing, I should say
that this is a massive bill. I am not for it; I am not against it. I do
not know where I am on this bill. I have not had an opportunity to
study a committee report, although the committee report that was
accompanying the bill which came from the Committee on Governmental
Affairs was available yesterday.
I was on the floor all day and into the evening. I personally have
not had any opportunity to read that. I never had any opportunity to
read the bill. That is nobody's fault that I had no opportunity to read
the bill. But I was not aware that the bill the Senate was going to act
on would be the bill reported out of the Committee on Governmental
Affairs. I had read about a Budget Committee bill, and I also had read
that the minority--meaning the Democrats on that committee--had not
been permitted to have a committee report in which they had hoped to
express individual views or minority views, or whatever.
I have always stood for the rights of the minority. When I was in the
majority, I stood for the rights of the minority. I stood for the
rights of the minority just recently, when there was the effort to
modify the filibuster rule. I have been in the minority; I have been in
the majority. So I have had some experience in both situations.
I have also been a Member of the House, a long time ago, and there
was a reason for the constitutional Framers' decision to have two
Houses, each with a particular role to play in its sphere of action. I
have never been very convivial with respect to making the U.S. Senate a
second House of Representatives. I want the Senate to remain what it
is; namely, the premier upper body in the world today. Two reasons
being--among others--that we have the right to offer amendments here,
as long as we want to offer amendments and feel the need to offer
amendments; also, that we have unlimited debate, which can only be
proscribed by cloture motion agreed to or by unanimous-consent
agreements.
So I felt that the minority--in this case, on the Budget Committee--
had a right to ask for a report, as I stated yesterday, so that the
whole record would be clear. As I stated earlier, every bill or
resolution that comes to the floor does not necessarily have to have a
committee report. There are a lot of minor bills that come to the floor
and there are often no committee reports accompanying those bills.
Nobody raises any fuss about that. But this is not a minor bill. I do
not know what is in the bill, but I know enough about this bill to know
it is no minor bill.
I have read that it is part of the Contract With America. I do not
know what the Contract With America states. I have read that there is
one, but I have not read it. Well, some would say: Why have you not
read it? Well, I have never read the Democratic platform. I have been
in politics now going on 49 years, and I have never yet read a
Democratic platform. Why? Because I did not have any part in writing
that platform. I am going to be guided by my own conscience and by the
facts in a given situation, not by some party platform.
I do not read party platforms; do not expect ever to read a party
platform. Why waste my time on a party platform? I have my own platform
to deal with my conscience and try to do what is right and best as I
see it for the Nation, for my State, for the U.S. Senate, this
institution, and for my fellow man.
There are a couple of things that even supersede those. My dedication
to my family and my Maker--and I am not of the religious right or the
religious left. I do not claim to be a religious man, but I have some
very definite ideas concerning religion and concerning the fact that I
am going to have to meet my Maker one day and live in eternity. I
believe that.
Eternity is a long time. Would Senators like to know how long
eternity is?
I take this handkerchief in my hand. Let us suppose that a bird flew
over Mount Everest carrying this handkerchief--once a minute--drawing
this handkerchief across Mount Everest, just as I am drawing it across
this microphone--and that that bird could live forever. When Mount
Everest had been worn down to a level with the sands of the sea, by a
bird dragging that handkerchief across the top of Mount Everest,
eternity would have just begun.
I have some pretty strong opinions, but I am no religious rightist
and I am no religious leftist. And I resented it when Joycelyn Elders--
whose nomination I opposed--was reported to have made some snide
comments about Christians.
No man is good. We all sin.
But I have some strong beliefs. I will not have anything other than
the King James version of the Bible in my House. Why? Because that is
the book that my foster mother and father read. I grew up with the King
James version and I will stay with that version until I am laid beneath
the sod.
I say all of that to say this. I have not signed any Contract With
America, and I have not read it. But there is a great rush around here,
there is a great stampede to enact the contract within the first 100
days.
I did not sign any Contract With America. I may like some parts of
it. I may not. I am not a signatory.
I know that our distinguished leader, Mr. Dole, with whom I have
worked many years here in various capacities, is under pressure. I am
not saying that he does not believe in the so-called Contract With
America. I have not discussed it with him. But he is under great
pressure. He is under pressure from the other body. That steamroller
over there across the Capitol is coming our way.
And that Speaker, in my judgment, has more power than any Speaker
since Sam Rayburn, under whom I served when I was in the House. I was
also in the House when Joe Martin was Speaker.
But I am sure that Senator Dole is also under pressure from people
within his own ranks. So I try to understand--because I have been down
that road--I try to understand his problems. And I can understand why
he wants to move on to get this work done. I congratulate him for
bringing in the Senate here during days when ordinarily we might have
expected to be out following the swearing in of Senators. I applaud
that.
I am glad he has kept us in. We ought to be here. We ought to be here
debating this bill. We ought to know what is in this bill.
I am an old-time Senator, and I am also a brand-new model.
I say that I want to know how badly my State is going to be hurt by
this so-called contract, if it is passed.
We have all this push to get these bills through, ram them through
the Senate and House. What happened in the Budget Committee, I would
assume, was an effort to get the bill to the floor in a hurry. The
majority leader had asked to get those bills out of committee as soon
as possible, which is a reasonable request. I understand that the
chairman said, ``Well, we are going to get this out and we are not
going to have a committee report.''
Well, it came out without a committee report. And then we were told,
``Well, the statement is in the Record. The committee report is no
different from the statement, so read the statement. Why wait on the
committee report? All you are going to get in that committee report is
that statement, plus this page,'' which says, ``Unfunded Mandate Reform
Act of 1995, Report of the Committee on the Budget.''
Well, that is not quite the case. The statement is not exactly like
the committee report. I understand that Mr. Exon's views had not been
included in the statement, at least that is what I understood Mr. Dole
to say last night.
But, be that as it may, there are many other reasons why we need a
committee report. And I can explain a few of those reasons later.
But, for now, I said I want to be a reasonable man. And I feel that I
am on legitimate, solid ground when I ask for a committee report.
[[Page S931]] Why should I be up here asking for a committee report?
I have a responsibility as a Senator. I want to protect my State.
I voted against the so-called Coverage Act, the only Senator to vote
against it. I had good reasons. If Senators are still around here long
enough, they will all understand some of those reasons. If Senators
stay around here long enough, they will understand the kind of
straitjacket the legislation will put the Senate into. I alone, voted
against that bill and have no apologies.
But I am saying to my friends on both sides of the aisle, just
because the House has rules that will allow it to ram bills through,
does not mean that the Senate has to roll over and play dead. Let
Members slow down a little bit here. This is only the 13th day of
January, Friday the 13th. This is early in the session. We are not up
against the fiscal year deadline. We are not up against a deadline to
raise the debt limit. We are not up against any emergencies this
morning. We will have, possibly, an emergency supplemental come along
one day, but this bill is not an emergency bill. We have some time. Let
Members slow down and look at what is in this bill. That is, as I see
it, my duty as a Senator.
It sparked my notice when I heard that the minority on the Senate
committee had been denied the right to file minority views in a
committee report. It kind of got the adrenalin flowing; stimulated my
blood pressure just a bit. So I came to the floor yesterday and
suggested we have a committee report and an opportunity to study it a
little bit so we could better understand what we are being asked to
vote on. I have not yet had an opportunity to study that committee
report. I know that the distinguished majority leader, when he comes to
the floor, has the first right of recognition, which he should have.
His party also has the chair, which I insist on.
The new Senators who are presiding are doing an excellent job. They
are paying attention. They are not up there reading or signing mail.
There used to be a telephone behind the Presiding Officer's chair.
Senators would be in the chair and they would talk on the telephone.
When I became majority leader, I took that telephone out.
Mr. President, is there something the Chair wishes to say?
The PRESIDING OFFICER. Is there objection to the request of the
Senator from Iowa?
Mr. BYRD. Mr. President, I object.
Mr. President, am I recognized?
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. BYRD. Mr. President, I thank the Chair.
The minority does not have a right to that chair. If Republicans are
in the majority, they should have that chair, and vice versa. So, when
friends have asked, ``Do you not think it would be a good thing to
share the chair,'' I said, ``No.''
The majority leader, when he comes to the floor, will have that arrow
in his quiver--the arrow--of first recognition. I may not have another
chance today to say a few words on this.
Mr. President, the first item of legislation passed by this Congress
was S. 2, the Congressional Accountability Act. The Senate now has
under its consideration S. 1, the so-called unfunded mandates bill.
When I think about the paradoxical effects of those two bills, I
sincerely hope I am not the only one to marvel at the utter
inconsistency of what we see going on.
On the one hand, when the Senate passed S. 2, it agreed to apply to
the Congress and its employees many of the same worker protection and
environmental safety laws currently enjoyed by the rest of the Nation.
Yet here we are today debating the unfunded mandates bill, which, if
enacted, could turn right around and endanger many of those same
protections.
In principle, I am not opposed to the idea of requiring congressional
funding for programs that we enact. I agree that in some cases we have
passed along to the States the cost of increased benefits that we knew
we could not fund. But dealing with the problem on a case-by-case
basis, which I believe is a prudent course, is a completely different
approach from that which we have in this bill. The plain truth is, Mr.
President, the approach taken by S. 1 seems to me, at this point and
until I have a better understanding of it, a little bit like using an
elephant gun on a squirrel hunt.
As currently drafted, if I listen to my colleagues and some of the
staff around here, and as I understand it--and I want to verify this--I
fear that the bill may be too broad a solution to the problem. The
answer to unfunded mandates is not going to be found through enactment
of legislation that may irreparably quash important health,
environmental, and quality-of-life measures already on the statute
books.
I know that a good many Senators have problems with the Clean Air
Act. When I was majority leader I would not bring it up. I had a lot of
Senators on my side of the aisle, including the former majority leader,
Mr. Mitchell, very much a supporter of that act. When I was majority
leader I would not bring it up. As majority leader, I did not feel that
I necessarily had to bring up every bill that some colleague on this
side of the aisle wanted. I did not bring it up.
I ended up voting against the Clean Air Act. It had some good things
in it and some things I did not like. Of course, the Senate took the
hill country boy from West Virginia and ran over him.
I had an amendment which was called the ``coal miner's amendment.'' I
had the then majority leader, Mr. Mitchell, against me, and I had the
then minority leader, Mr. Dole, against me, and I had the President
against me. I had to go up against that vast array of formidable
persons who were opposed to my poor little old coal miner's amendment.
But I worked hard, and I managed almost to win the fight. My problem
was that three Senators who had committed to vote with me did not vote
with me but voted against me. So I lost my amendment by 1 vote.
You might call that Clean Air Act an unfunded mandate. I voted
against it. Many Senators here today who want this unfunded mandates
legislation voted for that bill. They voted for that bill, and they
have voted for most of the legislation--most of the legislation--that
they now refer to as unfunded mandates legislation. Various Senators
who are now pushing hard for this bill, voted for what is now attacked
as unfunded mandates laws.
So I say, again, the answer to unfunded mandates is probably not
going to be found through enactment of legislation that may irreparably
quash important health, environmental, and quality-of-life measures
already on the statute books.
Incidentally, I should alert my colleagues that there will be votes
today. I hope that they do not leave under any impression or false hope
that, now that I have the floor, I will be talking the rest of the day
and the night. I do not intend to do that. I am not filibustering this
bill. I am sure the majority leader will have a vote or two at some
time.
I want my colleagues to be fully aware of that. This is not one of
these Fridays we have become accustomed to around here in which we show
up for an hour, and go out early. The custom that has grown up around
here is, we get an agreement to finish up everything next Tuesday and
we will not be in session on Friday. We need more debate around here,
not less. But this is not one of those Fridays in which we will vote by
10:30 and then hie away to the four winds.
To my colleagues, I say we better learn how to be a minority again.
The Senators over here on this other side of the aisle know how to act
as a minority. I am going to tell you another bit of news: They also
know how to operate as a majority. You watch that leader over there. He
will not hesitate to use the rules. He will not hesitate to rock the
boat.
I have to kind of get used to being in the minority again.
We do not need to put the Family and Medical Leave Act or the
National Voter Registration Act or the OSHA Reform Act or the Clean
Water Act, among others, on the chopping block in an effort to solve
the problem of unfunded mandates.
In saying that, may I say that I have some sympathy with efforts to
deal with these unfunded mandates. But this legislation would do that
precisely, put them on the chopping block in an effort to solve the
problem of unfunded mandates.
[[Page S932]] Any time one of those programs or any one of almost
200 other such mandates currently tracked by the National Conference of
State Legislatures is reauthorized or amended, they could be put in
jeopardy.
Mr. President, I am well aware that there are those in the Senate who
would like to accomplish that goal, the goal of rolling back what has
previously been accomplished. Some of what has previously been
accomplished, I would like to roll back, but I am not sure that this
bill, until I understand it better, is the way to do it.
For some--not all, of course, but some--this bill appears to me, from
listening to others and some of those who have even ``whispered in my
ear,'' I get the impression that the bill is simply a back-door way of
gutting progressive legislation enacted over the past several years. I
am not saying all the legislation that has been passed in the last
several years has been progressive. I voted against some. Some may say
the bill we passed earlier this week is progressive legislation, S. 2.
I did not think so. I voted against it.
If that is what they want to do, then come forward and say so. Bring
a bill to the floor that would repeal the minimum wage law. Bring a
bill to the floor that would repeal the regulations relating to toxic
waste disposal. If that is the agenda, bring a bill to the floor that
repeals it. Lay it out on the desk in open view. Let us debate the
merits of one of those bills if that is the intention of some. But we
should not continue on this headlong rush to pass legislation whose
impact is not completely known.
I am also concerned, as I listen to members of my staff, that S. 1 is
simply impractical in its method of addressing the problem. The
requirements placed on congressional committees and the Congressional
Budget Office are totally unworkable. Now that is what I understand in
talking to Jim English, who is the former director of the
Appropriations Committee staff in the Senate, and others. I consider
them the experts. I understand from them that the requirements placed
on congressional committees and the Congressional Budget Office are
totally unworkable. As an example, they point to the need of every
piece of legislation reported out of an authorizing committee to
include a report on the aggregate cost of that legislation to State,
local, and tribal governments. Well, at least if we ever pass this
legislation as it is we will get committee reports. We will not have
that problem again. We will get committee reports that have minority
views in it.
Mr. President, there are more than 80,000 governmental units in this
country--80,000. How in the world is CBO going to survey each and every
one of those organizations in their effort to determine a program's
cost?
The fact is that it cannot be done. Dr. Reischauer, the Director of
the Congressional Budget Office, even stated as much in a letter last
month to our colleague who is in the Chamber, Senator Levin. Dr.
Reischauer said it would be ``very difficult, if not impossible, to
determine with precision'' the required cost estimates.
Mr. President, I have an impulse to suggest the absence of a quorum
and make it a live quorum. I am not doing that yet, but why should I
not do it? Here we are, debating this very important bill. We have only
five Senators in the Chamber, including the Senator in the chair.
Why are Senators not here talking about this bill, explaining it? I
will sit down and listen to anyone who wants to explain the bill or the
amendments. I will be happy to have anyone explain the amendments. I
desire that somebody come and explain this bill and answer questions
about it.
I know I am not the only Senator, other than the four who are in the
Chamber besides me, who does not understand this bill.
Estimating the costs of various proposals on a State-by-State basis
requires very detailed and comprehensive information on the issue under
study. Such data are needed for each State, local, or tribal
government. But the necessary data bases are not always available, and
so developing a single methodology that can be used in the estimating
process is not a viable option. Consequently, Mr. President, the staff
of the CBO, I am told, would have to address each bill and each
amendment that contained a mandate separately in order to identify and
find the needed data. And obviously that is an extremely time consuming
and costly endeavor.
Now, Senators and staff advise me that S. 1 mandates that the
estimates be made for a full 5-year period. How ironic that is, Mr.
President, since we have some in this body who have complained that
they cannot provide the American people details of how they would
comply with a balanced budget constitutional amendment because the data
cannot be reliably projected that far into the future.
Now, that opens up an interesting subject. We have some in this body
who have complained that they cannot provide the American people
details of how they would comply with a balanced budget constitutional
amendment because the data cannot be reliably projected that far into
the future. What is going on here? This bill mandates that the
estimates be made for a full 5-year period. There are some in this body
who are proposing that we, that those who support the balanced budget
amendment, provide the details, provide the roadmap that will point the
way and tell us what the costs are, what the sacrifices are, what the
burdens are, what is going to be cut. And the American people have the
right to know. Other Senators have the right to know.
The American people do not know. I do not have the newspaper in front
of me, but I saw something in a newspaper recently to the extent that
80 percent of the American people favor a balanced budget amendment--80
percent favor it. But in reading the fine print as to what does this
mean; what does this entail; does it mean cutting Social Security or
does it mean cutting veterans pensions or veterans compensation or law
enforcement, health care, Medicare; what does it mean--suppose that is
the question: How do you feel about it?--well, no longer did 80 percent
favor a balanced budget amendment. When they saw, ``Oh, it means that
they might cut my veterans pension; they might cut my Medicare; I am
not in favor of it,'' I began to see that the 80 percent came down to
59 percent in one case or some such, 53 percent, and 34 percent or 33.
Now, that was not 33 percent of the 100. That was 33 percent of the
80 percent. In other words, as I read it, all those who favor a
balanced budget amendment--well, if 80 percent favored it, obviously 20
percent did not. That is what I assume. But of the 80 percent who
favored it, who favored this if such was cut, and then when it said
that 59 percent, only 59 percent favored it if a certain item was cut,
they did not mean that 59 percent of the total pie, 59 percent of the
100 percent of those who were opposed to it. It meant 59 percent of the
80 percent who said they were for it.
So when people come to understand what the punishment is, affecting
their particular circumstances, their particular lifestyle, or whatever
it may be, then the 80 percent falls away.
That is why I voted for Mr. Exon's amendment the other day. He
suggested that we know what the details are in connection with the
balanced budget amendment. And our leader, Mr. Daschle, and the House
Minority Leader, Mr. Gephardt, and others are seeking to know what is
in this poke along with this pig that we are being asked to buy. I
think that is a legitimate objective.
There are those who say, ``Well, we can't provide the American people
details on how they could comply with a balanced budget constitutional
amendment because the data cannot be reliably projected that far in the
future.'' Others say, ``Oh, if we do that, we won't be able to pass it,
we won't be able to ram a constitutional amendment on the balanced
budget through the Congress. No, we can't begin to pass it if we do
that. Why, then the American people wouldn't be for it.''
Somebody has said, in essence: ``We can't afford to let the American
people know what's good for them; or what's bad for them. If we do,
they won't buy it.''
So here, with S. 1, those who say that they cannot provide the
American people with the details of how they would comply with such an
amendment because the data cannot be reliably projected that far in the
future, here they turn right around and say that CBO
[[Page S933]] will be required to do just that--provide 5-year
estimates which, as I noted, the Director has said will be nearly
impossible to determine.
Illogical, too, is that the cost estimates are required before the
legislation is enacted, even though the regulations to implement the
law are proposed by executive branch agencies, and then only after
enactment of the law. How on Earth can we expect CBO--or anyone else,
for that matter--to come up with reasonable cost estimates before the
precise regulations for implementing the law are available? The answer
is, we cannot. The answer is that we cannot.
As I said, the only way that CBO can determine the cost of
legislation is to rely on information from the various State, local and
tribal governments. But those officials may not be familiar with all
the details of a particular piece of legislation. The full
ramifications may not be obvious to a county commissioner or a county
manager or township clerk, notwithstanding the fact that they may
otherwise be quite competent. Likewise, I question the wisdom of
relying on those entities for input. If officials--particularly at the
State level--know that the cost will be fully funded by the Federal
Government, they clearly have an interest in inflating the potential
cost. They have an interest in it, as I say, a basic self-interest.
That is what I am talking about, basic self-interest. And basic self-
interest will undoubtedly skew many of these estimates.
I also fear that one of the unintended consequences of this bill will
be to set up a disparate system between the Government and the private
sector--a disparate system between the Government and the private
sector. For example, my staff tells me that a point of order can lie
against any mandate directed at a governmental unit if we do not fully
fund that mandate. I have heard some discussion of that here on the
floor, I believe, on yesterday. But the same point of order would not
be appropriate if the mandate is aimed solely at the private sector.
That difference is especially troubling in those areas where the
private sector competes with the Government.
What happens? What happens if, for instance, a publicly owned utility
is exempt from additional clean-air regulations because the cost of
those regulations have not been fully funded and a point of order could
not be overcome, while a similar utility, wholly owned by a public
company, must comply? Such a scenario could easily crop up, it seems to
me. What happens then, Mr. President? In effect, we will have imposed
an additional and costly burden on a private business.
My point is simply to suggest that while the intent behind S.1 may be
laudable, the fact remains that this is a substantially different bill
than what we considered last year. I heard that last night. My friend,
the distinguished Senator from Michigan, I believe--I either heard him
say that on the floor or he said it somewhere within the reach of my
hearing. I still have pretty good hearing. I do not have a hearing aid
yet. I am doing very well without one. But I thought I heard him say
that this is a substantially different bill than what we considered
last year. I thought I heard that Senator say that. I see he is nodding
his head in the affirmative. He is on the record with me that he did,
he did say so.
It is a substantially different bill. And, as such, I do not believe
we know enough about all its possible ramifications. Therefore, and
until we have a fuller discussion, we cannot turn a bind eye to any
potential problems in the apparent rush to pass as much legislation as
soon as possible. There is no reason to expedite this bill to the
extent the effort is being made to expedite it through the Senate. We
are not in a race, here. I understand that no committees are meeting
today, so some parts of the Senate, apparently, feel that we are not in
a big rush on things. We certainly have no obligation to bow to the
whims of those who have set false timetables.
I do not blame them for setting timetables. That is all right. Those
who subscribe to the Contract With America, they have laid out a 100-
day timetable. I am not part of that timetable. I did not subscribe to
that. We have plenty of time. Let us see what is in these bills. Let us
take a moment and dissect them. And the members of the committees, if
they have an opportunity to fully debate these bills and explain them
and offer amendments, then the rest of us will understand what is in
them.
I do not have any obligation to say: Oh, yes, I will just roll over
and play dead. I hear that a steamroller is coming, a steamroller is
coming down the track. I want to know what is in that steamroller. We
do not have the rules of the House. As long as this Senator is here we
are not likely to have the rules of the House, if I can have anything
to do with stopping any impulse to stampede in that direction.
If unfunded mandates are a genuine and unreasonable burden on State
and local governments or private organizations--and I believe in some
cases they may be; I don't have any doubt that they are--then we should
deal with them directly. There is absolutely no need, it seems to me,
to establish some elaborate new procedural scheme within the Congress
in order to do that.
But if it comes to that, if we do establish such a scheme, let us
know what it is about. I only represent one vote here and I have always
said that, with respect to the filibuster, the filibuster will not
eternally kill something, kill legislation that the American people
really want. It may slow it down for a while. It may stop it for a
while. But in the process of education of the American people through
unlimited debate, the American people often become more aware of what
they are being asked to buy.
That is the case with the balanced budget amendment. As I have read
in the newspapers, there are some groups, now, that are raising some
questions about that balanced budget amendment. I even see that some
Governors are beginning to have second thoughts, who are beginning to
wonder if this thing is all it is cracked up to be. So that is the way
these things happen. But I have maintained that if the American people
really understand a question, if they really understand it and they
really want it, they will get it regardless of the filibuster.
Sadly, though, erecting these ``process'' fixes is symptomatic of an
extremely bad habit into which the Congress has fallen over the past
several years. When confronted with a difficult problem for which there
is no easy or painless solution, the tendency is to resort to some sort
of procedural fix rather than dealing with the problem head-on.
So here we have a procedural fix. The balanced budget constitutional
amendment is a procedural fix. The balanced budget constitutional
amendment is the greatest unfunded mandate that was ever imposed since
Adam and Eve were driven from the Garden of Eden, the greatest unfunded
mandate ever imposed.
So here we are going in two different directions meeting ourselves
head on. Here we have this bill dealing with unfunded mandates. But
behind it is the so-called ``balanced budget constitutional
amendment.'' You talk about an unfunded mandate. Wait until that thing
settles its claws into legislative bodies throughout the land. Wait
until that thing settles its roost on the Government's doorstep. It
will peck on the windows; and unfunded mandates. If they think that
this bill is going to relieve their concerns about the balanced budget
amendment, they had better think twice, three times and more, as we
will have an opportunity to discuss in due time. Just mark that down.
The balanced budget constitutional amendment, contrary to what it is
being purported to do, is not only the biggest hoax that is perhaps
about to be perpetrated on the American people but it is the largest
unfunded mandate. I will not take the time of the Senate today to
explain what I mean by that.
I want to repeat this word ``caution'' for those who think that S. 1
is some kind of cure for mandates. They need to think about it. S. 1
does nothing to protect any State or local government as I understand
it--I may understand it better later--but as I understand, it will do
nothing to protect any State or local government from the costs of
Federal budget cutting of any program that is not presently mandated.
How about that? They just say it applies prospectively. It does not
protect any program that is not presently mandated. Therein lies the
tale. For example, S. 1 would not apply to Federal
[[Page S934]] programs whereby the Congress provides grants for use in
housing programs, programs that provide social services for the
homeless, child immunization, Federal aid to States and localities for
education, or even transportation grants.
Mr. President, I ask unanimous consent that I may be permitted,
although I have the floor, to ask a question of the distinguished
Senator from Michigan [Mr. Levin].
Is Federal aid to education a Federal mandate or is that simply a
grant to the States? Is that a mandate?
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. I thank the Chair.
To the best of my knowledge, that is not a mandate. That is just a
grant to the States.
Mr. BYRD. Very well. Then, if in this budget-cutting fever that is so
infectious, Federal aid to education is cut--and I might be one who
would support such a cut. Here we are pouring billions of dollars into
Federal aid to education for our poorer students on the whole, more
than the other industrialized countries. So I have some second thoughts
about the way we handle Federal aid to education.
But that is, according to Mr. Levin, not a mandate. So the cost of
replacing Federal dollars which may be cut by the Congress in the
future will be dumped directly on the States by cuts in grants to the
States. This bill does not cure that. If any of the dollars that go to
the States to help those areas are reduced, the States will still be
stuck with the problem and, most importantly, the expense of the
homelessness or poor transportation system. This legislation does
nothing to protect the States from increased costs which are caused by
future actions of the Federal Government; in other words, cuts in
grants and other Federal programs.
Think about that possible scenario, Mr. President. I hope that the
proponents of the bill will stop the mad rush to pass this legislation
now and go back to the drawing board and come up with a workable and
practicable piece of legislation.
Mr. President, I hope the Chair will momentarily indulge me as I have
the right to the floor.
The PRESIDING OFFICER. That is correct.
Mr. BYRD. I thank the Chair.
Mr. President, as I stated earlier, it is not my desire to hold the
floor inordinately today. I have accomplished most of what I had hoped
to do; namely, have a report by the Committee on the Budget and an
opportunity to understand what is in the report. The report is
available. I have not had an opportunity to study it, but it is not my
desire to hold the floor. Senators know if I wanted to filibuster the
bill--and the Senator from Arizona knows full well--I could talk for
the rest of the day. That is not my intention. So I intend to yield the
floor shortly.
Let me say, again, that the distinguished Senator from Idaho has
extended every act of cooperation and courtesy to me, and I appreciate
his decency and his spirit of good will. I did not want to give up the
floor until he returned.
Mr. President, I yield the floor.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho [Mr. Kempthorne] is
recognized.
Mr. KEMPTHORNE. Mr. President, I appreciate the comments that the
Senator from West Virginia has made and, of course, I have great
respect for him and for his understanding of legislation. I know that
he will be an integral part of the overall discussion of this Senate
bill No. 1. I know, also, Mr. President, that it will be my intention
that on final passage--I have full intentions of having the Senator
from West Virginia vote for this bill because--I think he used the
terms he was ``not sure how it could hurt his State.'' I think he will
learn that it will not hurt the States. This is what States are asking
us to do in reestablishing and reaffirming the federalism that is
intended.
Also, Mr. President, this issue is tied with the Contract With
America that the Senator from West Virginia pointed out. I would like
to just comment about that. When I took the oath of office here 2 years
ago, the day that I took the oath of office as a Senator was the day
that I resigned as mayor in Boise, ID. One of the items that I was very
intent on doing was to somehow deal with these unfunded Federal
mandates. So the first bill that I ever introduced in my Senate career
was a bill dealing with these unfunded Federal mandates. Ultimately,
that bill, Senate bill No. 993, which gained bipartisan support and
which went through the Governmental Affairs Committee last session on a
vote of 16 to 0--much of what is in today's bill, S. 1, was derived
from Senate bill No. 993. The definitions are the same and, again, much
of it is the same, but there are changes to it. I say that so that you
see a bit of a history here.
The Contract With America, which happened a few months ago, took
place after we had been moving this legislation. And so while the issue
of unfunded mandates--dealing with that is part of the Contract With
America in the House of Representatives, and while I am delighted and
proud that they have included that issue to be part of the things
discussed and dealt with in the Contract With America, really this
issue in the Senate, this legislation, precedes that.
Also, the Speaker of the House agreed to take that element of the
Contract With America dealing with unfunded mandates and to pull it out
of the Contract With America so that it could be freestanding and so
that we could deal with this issue and have this sort of discussion.
So I assure the Senator from West Virginia that this is not part of
just some large package that we have to hurriedly get through. It is a
critically important issue, the impact of which has been taking years,
and our cities and States and the private sector has heard about it.
The Senator also referenced the Congressional Budget Office. I wish
to assure the Senator from West Virginia that through the Budget
Committee we have stayed in close contact with the Congressional Budget
Office, so that as modifications from S. 993 were made to S. 1 they
were able to tell us every step of the way what their needs would be in
order to accomplish the responsibilities that this legislation would
assign to them, including the funds to carry that out. So we have dealt
with that issue.
I believe that, at some point later, we are going to be coming up
with possible amendments dealing in this area, and so I will withhold
further comment on that. By the fact that there has been objection to
that unanimous-consent request, it would be my understanding that we
have before us the next committee amendment; is that correct?
The PRESIDING OFFICER. The pending question is the ninth reported
committee amendment.
Mr. KEMPTHORNE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Coverdell). Is there objection?
Mr. FORD. There is an objection. I apologize to the Senator, but I
have been asked to protect the rollcall and, if the Senator will allow
me, I will see if I can give him the time.
The PRESIDING OFFICER. Objection is heard.
Mr. SPECTER. Mr. President, if I might amplify.
The PRESIDING OFFICER. The clerk will continue the call of the roll.
The bill clerk continued to call the roll.
Mr. SPECTER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. SPECTER. I ask unanimous consent that I may proceed as in morning
business for 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________