[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.

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