Congressional Record, Volume 141 Issue 8 (Friday, January 13, 1995)

[Congressional Record Volume 141, Number 8 (Friday, January 13, 1995)]
[Senate]
[Pages S935-S941]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

UNFUNDED MANDATE REFORM ACT

The Senate continued with the consideration of the bill.
Mr. EXON. Mr. President, I rise in support of S. 1, which the Budget
Committee unanimously ordered reported on Monday, and since that time,
we have come forth with a report that has been suggested and I believe
that is being reviewed at the present time.
I am an original cosponsor of S. 1. I want to take this opportunity
to commend my distinguished colleagues and friends, Senator Glenn,
Senator Domenici, and Senator Kempthorne, for the yeomans' work that
they have put into this bill. We would not be where we are today if it
were not for their dedication.
Mr. President, unfunded mandates are not merely a thorn in the side
of the Nation's Governors and State and local officials. They have
burrowed deep into the Nation's landscape and present a problem of the
utmost gravity.
Washington passes mandates and regulations and then drops them like
an orphan on the doorstep of the States, forcing officials to dig deep
into their own pockets to pay for compliance, to pay for mandates, at a
time when they are confronting their own fiscal shortfalls and the
public's demand for greater services.
Speak to any State or local official from Nebraska to Nevada, from a
mayor to a town manager or a Governor, and they will tell you that this
cost shifting from the Federal level to the State level is wreaking
havoc with their budgets. As my good friend and colleague, Senator
Glenn, rightly observed, we are passing the buck without the bucks.
In spite of the cry of ``enough'' from the States, Washington keeps
heaping unfunded mandates upon unfunded mandates and regulations upon
regulations, and there is no end point to the mandates effect. Like an
entitlement, they go on and on and on, to an endless life of their own.
Unfunded mandates are relentless in their demands upon State and local
treasuries and, unfortunately, the sky seems to be the limit.
According to the Congressional Budget Office, compliance with Federal
legislative and regulatory mandates rose from $225 million in 1986 to
$2.8 billion in 1991. CBO readily admits that its estimates are highly
conservative.
We really do not know the full extent and magnitude of the situation.
Mr. President, it is time we brought these unfunded mandates back to
Earth and back to the realm of reason and responsible budgeting. It is
high time that we not only rethink the relationship between the Federal
and State Governments, it is time that we did something about it. And
that is what this bill does.
The legislation before us today would create a point of order against
unfunded mandates. Under the bill, the Federal Government must provide
direct spending for these mandates. If it cannot, the mandate
requirements must be scaled back to the amount of money appropriated.
That is fair, and that is reasonable. And above everything else, Mr.
President, that is right.
Mr. President, this is a bill that takes in the very broad picture.
It already enjoys great bipartisan support. My last count indicates
that it has 57 cosponsors and probably a few more today that I do not
know about. I predict that it will pass overwhelmingly and in a very
reasonable period of time. But I wish to be clear that there are no
half measures in the legislation. It meets the problem head on.
Of course, there are those who advocate a radical approach to the
issue, what they call a no money, no mandates backstop.
While I commend my colleagues' enthusiasm and dogged persistence in
righting the unfunded mandates inequities, this is a classic case of
correctly diagnosing the problem but applying the wrong treatment, a
treatment which I suggest could have disastrous side effects.
The alternative backstop strategy that some are referencing would
take us down a road which could not only swell the size of an already
bloated Federal bureaucracy, but it could further fan the flames of the
litigation inferno that is raging throughout the Nation.
This draconian approach would require that the CBO reestimate each
year--and I stress ``each year''--the cost of mandates. I do not
believe that we can fathom how much we would have to expand the CBO
staff to meet this formidable and I think unnecessarily forbidding
task.
Mr. President, over the past 2 years, we have made excellent headway
in meeting the American people's rightful demands to reduce the size of
Government. We have much further to go. We will have the smallest
government, though, I would point out, since President Kennedy sat in
the Oval Office. This is not the time to undue the good and the hard
work that has been done in many areas. We must be cautious but we must
be effective.
Second, we would be doing, I suggest, a terrible disservice to our
fellow citizens if we inadvertently fueled further litigation. That is
exactly what would
[[Page S936]] happen if we chose the simplistic measure. The lawyers
would be lining up a hundred deep in the court, challenging at every
turn the CBO reestimates. And I hope that this concern will be
understood by all Members of the body.
The columnist David Broder wrote a very effective piece touching on
this subject that appeared in the newspaper a few days ago. Mr. Broder
endorsed the bill before us today as ``a worthy effort.'' Mr. Broder
further notes that the no-money, no-mandate alternative would ``split
the bipartisan coalition.'' We must not split the bipartisan coalition
that is moving aggressively forward and if followed will pass S. 1 in a
very short period of time. If we proceed through any other course, we
endanger the longstanding civil rights and environmental policy and
perhaps draw a Presidential veto.
Mr. President, I ask unanimous consent that the full text of this
perceptive column be printed in the Record at the conclusion of my
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. EXON. In a similar vein, Mr. President, the proposal of some to
raise the requirement for waiving the new point of order from a
majority vote to 60 votes would also split the bipartisan coalition.
Another 60-vote point of order in this context would tie the Senate in
knots. If we have seen gridlock over the last decade, this kind of a
60-vote point of order would lead to a glacial gridlock.
Mr. President, I was involved in the negotiations that led to the
unfunded mandates bill currently before the Senate. There were a few
items of the bill that merit further clarification.
retroactivity

There has been a great deal of confusion surrounding the question of
retroactivity in S. 1. Namely, to what mandates does S. 1 apply? And,
will mandates already enacted into law be affected by S. 1?
The drafters of S. 1 intended that reauthorization of existing laws
not be subject to the requirements of S. 1 where the net costs of the
legislation do not exceed existing costs of the mandate plus the
thresholds established in the legislation.
The no-retroactivity clause would apply to laws for which
authorizations of appropriations may have expired, such as the 1987
Water Quality Act.
I would add that this same principle would apply equally to
regulations that are issued pursuant to existing laws, but which have
not yet been proposed or finalized. However, let me stress that the
existing law must be in effect at the time S. 1 became effective
regardless of whether an authorization of appropriations has expired.

exclusions

The bill contains a broad exclusion for legislation that establishes
or enforces any statutory rights that prohibit discrimination.
The drafters of S. 1 believe this language to mean provisions in
bills and joint resolutions that prohibit or are designed to prevent
discrimination from occurring through civil or criminal sanctions or
prohibitions.

points of order

The legislation ensures that a simple majority in the House or Senate
will be required to waive a point of order, if raised, for an unfunded
intergovernmental mandate, or where a CBO statement does not accompany
a bill or joint resolution.

procedures

The situation may arise where a mandate--already in effect for a
year--is declared ineffective and enforcement or judicial action has
already commenced. In such a case, the drafters of S. 1 intend that
where enforcement actions have begun, the mandate in question would
continue to consider applicable law preceding the declaration of
ineffectiveness.
For example, in a case where a mandate is fully funded in the first 2
years, but not in the third, the mandate is effective for the first 2
years, but not in the third.

administrative processes and procedures

When an intergovernmental mandate is either declared ineffective or
scaled back because of lack of funding, these changes in the mandate
will be effectuated consistent with the requirements of the
Administrative Procedures Act.
This will ensure that all affected parties including, the private
sector, State, local and tribal governments and the intended
beneficiaries of the mandate will have adequate opportunity to address
their concerns.
In closing, Mr. President, I would like to say that after much though
and analysis we have found in the legislation before us today the
solution to the problem of unfunded mandates. It might not be a perfect
one. Certainly we all can say that we have passed few perfect pieces of
legislation. It does not mean that we may not have to revisit this from
time to time. But I think it is time we move aggressively ahead to
solve the problem of unfunded mandates.
On January 5, the Budget Committee, of which I am the ranking
minority member, and the Governmental Affairs Committee held a joint
hearing on S. 1. Both of our respective committees favorably reported
out the measure earlier this week. We have heard loud and clear the
call from the States. It is now time that we acted and passed this
critical legislation.
[Exibit 1]

Money and Mandates

(By David S. Broder)

Before George Voinovich became governor of Ohio four years
ago, he was a member of the Ohio legislature, a Cuyahoga
County commissioner and the mayor of Cleveland. That may
condemn him as a career politician in some people's eyes, but
it also placed him in a unique position to help move what may
become the first law passed by this new Congress--the
unfunded mandates bill.
Voinovich, a Republican, last year used his friendships in
both parties to construct an unusually broad and solid
coalition of state and local government groups to press for
enactment of a long-overdue measure that will require
Congress to look twice before saddling states, counties and
cities with the costs of carrying out policies the federal
government finds desirable.
The measure was stymied in the last Congress by Rep. Henry
Waxman (D-Cailf.) and some of the other veteran mandate-
writers, but this year it has high priority in the Senate and
House, with their new Republican majorities. For reasons I
will explain in a moment, this measure may not provide all
the relief the states and localities expect. But it is an
effort to address a real problem: the increasing tendency of
a federal government which has spent itself into $4 trillion
of debt to make its partners in state and local government
pay for Washington's good deeds.
The governors, legislators, mayors, and county officials
have griped about this for a long time. But it was not until
they put aside their internal differences and came together
last year as the State and Local Coalition that Congress
began to take notice. As Voinovich commented over coffee last
week in Washington, ``It is rare that an idea that was on no
one's screen in Washington one year becomes the top priority
in Congress the next year.'' Members of Congress ``can ignore
any one of our groups, but they can't ignore all of us.''
Voinovich's political acumen also was important in keeping
the legislation within bounds of reason. Some conservatives
want to enact a ``no money, no mandate'' law that would stop
the federal government from requiring any cost-sharing by
state and local governments on programs of national
importance.
Voinovich recognizes that would split his bipartisan
coalition, which includes many liberal Democrats, endanger
long-standing national civil rights and environmental
policies, and perhaps draw a presidential veto. So he has
worked diligently to persuade conservatives, including
Speaker Newt Gingrich, to back bills by Sen. Dirk Kempthorne
(R-Idaho) and Reps. William Clinger (Pa.) and Rob Portman (R-
Ohio) that take a more measured approach.
The bills do not repeal existing mandates, leaving an
examination of their financing to a bipartisan commission.
They exempt measures necessary to enforce constitutional or
statutory rights prohibiting discrimination of any kind--
including disability.
They allow future Congresses to pass unfunded mandates--but
only if, on a separate roll-call vote, before final passage,
a majority of the House and Senate say, deliberately and
explicitly, that the purpose is so compelling they believe
they should waive the rule against unfunded mandates. In
other words, senators and representatives would have to tell
their constituents, in effect, ``We're voting to raise your
state or local taxes.''
The difficulty I mentioned earlier arises from the
enforcement mechanism. Somebody has to decide how much an
unfunded mandate would cost and whether it exceeds the
threshold set in the proposed law--$50 million in costs for
state and local governments, $200 million for private
business. That agency is the Congressional Budget Office
(CBO), a nonpartisan arm of Congress.
That is a huge power to give to a group of unelected
bureaucrats, even if they are required by law to consult with
local and state officials and are supervised by the House and
Senate Budget committees. Robert D. Reischauer, the director
of CBO, has written
[[Page S937]] members of Congress a letter warning that ``in
some of the situations that will matter most . . . [it] will
be very difficult if not impossible to determine'' the costs
the proposed mandate will impose.
Local officials, as Reischauer delicately put it, ``are
likely to have a strong interest in having the costs of a
proposed mandate appear as high as possible''; congressional
sponsors, the opposite motivation. In truth, the added costs
will vary enormously, depending on the severity of the
problems in the locality and the degree of effort already
being made.
Voinovich is right in arguing that the bill will force
Congress to consider future mandates with care. It will
provide a forum where the states and cites can argue their
case. But this law is altogether too likely to have
unintended consequences. I can see the same local officials
who are enraged now by Congress's caprice in passing unfunded
mandates being equally enraged--and frustrated--by future CBO
cost estimates.
The unfunded mandate bill is a worthy effort. But in the
end, the real solution lies in sorting out more clearly what
responsibilities should be financed and run by each level of
government. Voinovich and other governors are ready for that
kind of dialogue to begin. President Clinton should take the
lead in seeing that it happens.

Mr. EXON. Mr. President, I yield the floor and suggest the absence of
a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Grams). Without objection, it is so
ordered.
Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that the
remaining committee amendments be temporarily laid aside in order to
consider the Dorgan amendment; that no second-degree amendments be in
order, and that at 2:30 a vote will occur on the amendment.
Mr. BYRD. Mr. President, reserving the right to object. Will the
Senator kindly restate the request?
Mr. KEMPTHORNE. Yes. The unanimous-consent request is that the
remaining committee amendments be temporarily laid aside in order to
consider the Dorgan amendment; that no second-degree amendments be in
order, and that at 2:30 a vote will occur on the Dorgan amendment.
Mr. LEVIN. I wonder if the Senator who reserved the right to object
will yield for a question to the manager.
Mr. BYRD. Yes.
Mr. LEVIN. The Dorgan amendment that the Senator is referring to, as
I understand it, is an amendment which would substitute the ACIR, in
lieu of the new commission which the bill would create, the ACIR being
an existing commission on intergovernmental relations. As I understand
Senator Dorgan's amendment, it would utilize the ACIR in lieu of
creating a new commission, as the bill currently provides; is that just
the nature of the amendment, so the folks know what it is the unanimous
consent refers to?
Mr. KEMPTHORNE. In response to the Senator from Michigan, that is
correct.
Mr. BYRD. Reserving the right to object, Mr. President, this seems to
me to be a positive amendment, one that has considerable merit, as I
understand it. I do not plan to object to setting the amendments aside
to take up this amendment. But before I complete my reservation, I
started out saying I wanted a committee report, so that our minority
people on both committees--not just the Budget Committee, but on the
Governmental Affairs Committee--who had been denied the committee
report with individual views or minority views, knowing full well
nothing about the content of the bill, but knowing that there is a
steamroller coming down the road, to put all these wonderful things. I
have seen the number 10 used, 10 plans in the Contract With America--
maybe 12. All these wonderful things are in the Contract With America.
And realizing that this bill, being No. 1, must be a very important
bill, not just a simple sense-of-the-Senate resolution, but a very
important bill. No. 2, S. 2 was passed earlier, and I voted against S.
2. But in this case, I said I want, on behalf of the Senate, on behalf
of the minority, and on behalf of myself, and on behalf of all other
Senators who do not know any more about this bill than I do, I want to
see a committee report. I want to see the minority view. I want to see
the votes that were taken inside the committee. I want all those things
in the committee report that we are instructed to have in the committee
reports by the Senate rules. Senators and listeners who do not know
what I am talking about, read the Senate rules and find out. I wanted
those, and I wanted an opportunity not just to have it given to me in
my hand but an opportunity to study it. I have the reports now, but I
want this weekend to study this bill.
In the meantime, I do not want to appear to be filibustering,
although I do not mind being a filibusterer when the right time comes.
Senators will know when I am filibustering. I have been called worse
names than a filibusterer. But I have no interest in killing the bill.
I may be for it. I probably will be, but I am not sure. I probably will
be for the bill. But I resist the temptation to roll over and play
dead. I resist that temptation. I am not going to be cowed like a
whipped dog because of threats or charges that I may be obstructing or
filibustering. I am not doing that. I want to know what is in these
bills. We have plenty of time. We do not have to ram them through. Let
us take the time. This is an important bill. I hear a lot of whispering
and murmuring about problems with this bill from my colleagues. I want
to know what is in it. So I want to study that bill this weekend, after
I do the mopping of the kitchen. I always mop the kitchen. Every
Saturday that is my job and I mop the washroom where she does the
washing, where the washer and dryer are. I mop, yes. I clean all the
commodes. I clean all the bathroom structures. I clean out the
bathtubs.
Mr. BIDEN. Will the Senator yield?
Mr. BYRD. Not yet. I will shortly. I do all the vacuuming. I do the
dusting. I dust the furniture in the family room and dust the furniture
in the living room, and so on. My wife does the buying and the cooking
and the washing and the ironing and the pressing of suits and taking
care of my little dog, Billy. But over this weekend, whenever I get
through with doing my chores, which I have sworn on to for a number of
years, then I want to study this bill. That is a legitimate reason not
to rush pell-mell at this point.
I want to be a reasonable man. Here is an opportunity to vote on
something that is positive. I will listen to the Senator's explanation
of the amendment. It is my understanding, in talking with the
distinguished Senator from North Dakota and the distinguished Senator
from Michigan, that this is a good amendment. So I am not going to
interpose an objection to setting these committee amendments aside. I
have no objection to setting those amendments aside and letting the
Senate go forward and dispose of the amendment by Mr. Dorgan. There may
be another amendment that would fit into that. All I am asking is that
I want this weekend, after I get through with mopping the kitchen and
mopping the washroom, and all those things, I want the opportunity to
study this bill. That is a reasonable request. I am saving my strength
for a filibuster on another day, on another bill. I am not
filibustering this bill. Give me a break here.
So I have no objection to that if the leader wants to do that.
Mr. DOLE. Will the Senator yield?
Mr. BYRD. I am merely reserving the right to object.
Mr. DOLE. Last night we talked about your dog, Billy, and my dog,
Leader. So I have had Leader inscribe a picture for Billy, and here is
the picture.
Mr. BYRD. Will wonders never cease? Sweet smoke of rhetoric, my, what
a handsome dog that is. I wish someone would call my office downstairs
and have a picture of Billy brought up here. That is a pedigree. That
is a blue ribbon dog.
I will read the inscription: ``To Billy:''
There is only one Billy, and that is Billy Byrd.
``To Billy, with best wishes.'' The signature, ``Leader.'' Leader;
that is a beautiful dog. It really is.
I thank the distinguished leader.
But I do want to bring a picture of Billy up.
So I have no objection to setting the amendments aside for that
purpose.
The PRESIDING OFFICER. Is there objection to the request? Without
objection, it is so ordered.
[[Page S938]] Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.

Amendment No. 18

(Purpose: To provide for certain studies and reports to be performed by
the Advisory Commission on Intergovernmental Relations, and for other
purposes)

Mr. DORGAN. I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:

The Senator from North Dakota [Mr. Dorgan] for himself, Mr.
Graham, Mr. Levin, and Mr. Kempthorne, proposes an amendment
numbered 18.

Mr. DORGAN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

On page 39, strike out lines 4 through 11 and insert in
lieu thereof the following:

SEC. 301. BASELINE STUDY OF COSTS AND BENEFITS.

(a) In General.--Not later than 180 days after the date of
enactment of this Act, the Advisory Commission on
Intergovernmental Relations (hereafter in this title referred
to as the ``Advisory Commission''), in consultation with the
Director, shall begin a study to examine the measurement and
definition issues involved in calculating the total costs and
benefits to State, local, and tribal governments of
compliance with Federal law.
(b) Considerations.--The study required by this section
shall consider--
(1) the feasibility of measuring indirect costs and
benefits as well as direct costs and benefits of the Federal,
State, local, and tribal relationship; and
(2) how to measure both the direct and indirect benefits of
Federal financial assistance and tax benefits to State,
local, and tribal government.

SEC. 302. REPORT ON UNFUNDED FEDERAL MANDATES BY ADVISORY
COMMISSION ON INTERGOVERNMENTAL RELATIONS.

(a) In General.--The Advisory Commission on
Intergovernmental Relations shall in accordance with this
section--
On page 43, beginning with line 1, strike out all through
line 17 on page 49 and insert in lieu thereof the following:

SEC. 303. MONITORING IMPLEMENTATION.

(a) In General.--The advisory Commission shall monitor and
evaluate the implementation of this Act, including by
conducting such hearings, and consulting with such Federal,
State, local, and tribal governments, as the Advisory
Commission considers appropriate for obtaining information
and views about the purpose, implementation, and results of
this Act.
(b) Biennial Report.--The Advisory Commission shall submit
a report to the President and the Congress every 2 years
which--
(1) presents the findings of the Advisory Commission under
subsection (a); and
(2) presents recommendations for improving the
implementation of this Act, including regarding any need for
amending this Act.

SEC. 304. SPECIAL AUTHORITIES OF ADVISORY COMMISSION.

(a) Experts and Consultants.--For purposes of carrying out
this title, the Advisory Commission may procure temporary and
intermittent services of experts or consultants under section
3109(b) of title 5, United States Code.
(b) Detail of Staff of Federal Agencies.--Upon request of
the Executive Director of the Advisory Commission, the head
of any Federal department or agency may detail, on a
reimbursable basis, any of the personnel of that department
or agency to the Advisory Commission to assist it in carrying
out this title.
(c) Contract Authority.--The advisory Commission may,
subject to appropriations, contract with and compensate
government and private persons (including agencies) for
property and services used to carry out its duties under this
title.

SEC. 305. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Advisory
Commission--
(1) to carry out section 301, $1,000,000 for each of fiscal
years 1995 and 1996;
(2) to carry out section 302, $500,000; and
(3) to carry out section 303, $200,000 for each of fiscal
years 1995, 1996, 1997, 1998, and 1999.

Mr. DORGAN. Mr. President, I am offering this amendment along with
the Senator from Florida [Mr. Graham]; the Senator from Michigan [Mr.
Levin]; and the Senator from Idaho [Mr. Kempthorne].
Mr. President, it says on page 39 of S. 1, which the Senate is now
considering, at the top of the page, under:

Title III--Review of Unfunded Federal Mandates

SEC. 301. ESTABLISHMENT.

There is established a commission which shall be known as
the ``Commission on Unfunded Federal Mandates'' (in this
title referred to as the ``Commission'').

And then it goes on in subsequent pages to describe the duties and
responsibilities of this commission.
My amendment would substitute the Advisory Commission on
Intergovernmental Relations for this new commission.
I offer this amendment because, prior to a week or so ago, all of the
drafts of this legislation, going back to last year, written by the
Governmental Affairs Committee under the chairmanship of Senator Glenn,
and more recently negotiated in biparitisan discussions, all of those
drafts included in this section a commission to study unfunded mandates
and that commission was going to be the Advisory Commission on
Intergovernmental Relations. It is called ACIR. ACIR is an organization
that has been in existence a long, long time, one with which I have a
great deal of familiarity from the time when I was a statewide elected
official.
ACIR has done a substantial amount of research in many, many areas
dealing with intergovernmental relations. Its membership includes
members from virtually all levels of government, members appointed by
the President, members appointed by the Presiding Officer of the
Senate, the House; we have mayors and Governors and we have private
citizens.
The fact is, it is an outstanding commission that has done
outstanding work for a long, long while. And it has especially done an
enormous amount of work on the subject of unfunded mandates. It has for
over 10 years done credible and thoughtful studies on this subject of
unfunded mandates.
If this organization, the ACIR, one with such a distinguished
reputation, one which I have worked with personally for over 20 years
on many intergovernmental issues, if this organization has been the one
that has done over a decade's worth of research and work on unfunded
mandates, the question for me was: Why would we pass legislation that
creates a new commission to give us some studies and some answers on
unfunded mandates? That does not make any sense. In fact, it did not
make any sense over recent months to all of those Republicans and
Democrats who were constructing this. Only in the last week or so was a
new commission put in here in substitute for ACIR.
My amendment says, let us replace it with the Advisory Commission on
Intergovernmental Relations. It makes little sense to create a new
commission. We are in Government these days talking about reinventing,
about downsizing, about trying to be more efficient, trying to avoid
duplication and overlapping of duties.
And this amendment simply moves us in that direction, to say a
commission already exists, a commission that has expertise in this very
matter, and that is the commission that ought to appear on page 39.
So my amendment is relatively simple. It simply substitutes the ACIR
for the new commission that otherwise would be created.
The advantages to this are obvious. First of all, the Advisory
Commission on Intergovernmental Relations is ready to do this work. No
new commission has to be created. No new members have to be appointed.
No new staff has to be hired. No new space to house a staff need be
created. No new rules. No new relationships. It already exists. It can,
because of that, realistically, in my judgment, meet all of the
timetables. So it is a perfect fit.
I indicated that the ACIR has done studies going back 10 years on
this very issue. In fact, they have done five major studies and have
been the major resource used by most of us in the Congress who have
been concerned about unfunded mandates. The mission of the Advisory
Commission on Intergovernmental Relations is to strengthen the Federal
system, strengthen the cooperation between levels of government. And
so, again, it is uniquely situated, in my judgment, to perform this
task.
I have watched with interest the discussion on the floor of the
Senate recently about unfunded mandates. As I conclude and prepare to
allow my distinguished friend from Florida and others, hopefully, to
support this amendment, I just want to say that it is not without
merit, in my judgment, for us to proceed with deliberation and proceed
in a manner that allows all Members of this body to have some comfort
that they understand exactly what is
[[Page S939]] in this legislation. This will be a better bill if we
proceed in a manner that allows everyone to understand it, ask all of
the questions, improve it, modify it, change it, accept it and then
finally vote on it and move this along so that it becomes law.
I expect, in the end, to cast a ``yes'' vote on a piece of
legislation that I think has great merit. But there are questions that
will be asked. I have two additional amendments I will offer next week.
But I believe that this bill moves us in the right direction of being
more responsible on a subject where we have acted in the past without,
in my judgment, full information.
And so I appreciate very much the discussion that has gone on among
the principal sponsors of the legislation and Senator Byrd and many
others on this floor in recent hours and recent days. I thank him for
his willingness to allow this amendment to be offered and allow the
other amendments to be set aside. It demonstrates, I think, that we
want to make some progress on this legislation. And this amendment
itself is one with merit and one that I think will demonstrate
progress.
I know Senator Graham and Senator Kempthorne and others wish to speak
in support of it. With that, Mr. President, I yield the floor.
Mr. BYRD. Would the Senator allow me to compliment him, and also I
would ask that he add my name as a cosponsor of this amendment.
As I understand, the pending bill authorizes more Federal staff at
CBO and more Federal spending, $4.5 million per year, to hire
additional CBO personnel to carry out their new, largely unachievable,
responsibilities under the bill. In addition, the bill would set up yet
another Federal commission.
And we have in the bill that was passed earlier this week--which I
was against, the so-called coverage bill--we have in that bill a new
bureaucracy under the auspices of a so-called bicameral commission that
will spend almost unlimited funds. That was one of the reasons why I
voted against the bill. Is this what the Senators mean by Government
reform, continuing to establish commissions?
A bill which passed earlier this week, as I say, S. 2, created a
whole new board and authorized that board to employ such staff and
consultants as were considered appropriate. I voted against that bill
for a number of reasons, one of which, I opposed the creation of that
new board.
Mr. President, I want to commend the Senator from North Dakota on his
amendment, and I hope he will allow me to be a cosponsor.
Mr. DORGAN. Mr. President, I thank the Senator very much for his
generous remarks. I ask unanimous consent that the Senator from West
Virginia [Mr. Byrd] be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, thank you.
First of all, let me congratulate Senator Dorgan on this amendment. I
think he has experience in intergovernmental relationships. I believe
he has actually served on that commission, although I may be mistaken.
I know I have served on that commission.
There is no reason for Members to be creating another commission. It
is the last thing we ought to be doing when we are reinventing
Government.
This bill, I believe, was deficient in that regard by creating
another commission. Unlike last year's bill 993, which used the
Advisory Commission on Intergovernmental Relations, an existing
commission, this bill before Members created a new commission. It was
unneeded. It will lead to delay and expense.
I congratulate Senator Dorgan on going back to what was in last
year's Senate bill 993, which was utilizing the ACIR for this purpose.
I am pleased to cosponsor his amendment.
Mr. GRAHAM addressed the Chair.
The PRESIDING OFFICER. The Senator from Florida.
Mr. GRAHAM. Thank you, Mr. President.
I want to first express my support for the objectives of S. 1, and I
look forward to voting for it on final passage. I believe that there
has been a tendency, particularly during a time of restrained Federal
resources, to look to the imposition of obligations on State and local
government as a means of accomplishing national objectives which we at
the National Government are either unable or unwilling to pay for. This
will not preclude such behavior in the future, but it will require the
Congress to understand what it is doing and make a discreet judgment
that that is the course of action that it is willing to undertake.
Having said that, I think there is going to be a surprise and
disappointment, however, upon the final passage of the bill if it is in
basically the form that is currently before Members. That is that many
feel it is going to undo existing mandates.
I have seen news accounts of Governors and other executives at the
local level who have talked about the amount of savings that will be
derived as a result of passage of this bill. As I read the bill and
understand its processes, it is all prospective in operation. That is,
it will make it more difficult to impose new unfunded mandates, but it
in no way deals directly with those mandates that are already in place.
That is what makes this amendment so important.
What title III does is it sets up a parallel process that gives us a
greater capacity to look at current unfunded mandates and, on a case-
by-case basis, particularly through the reauthorization process, to
begin to deal with those unfunded mandates.
I recognize that the bill provides that in a reauthorization,
whatever the current status of unfunded mandates is does not trigger
the mechanisms of this bill. It is only if we elevate further an
additional $50 million of imposition on State and local governments,
will the mechanisms of this specific bill relate to existing, enhanced,
enlarged, engorged, unfunded mandates.
But what title III--which is what we are amending--provides is there
will be a systematic look back at all of the unfunded mandates. That
will provide Members the opportunity to receive a thoughtful,
quantitative analysis of the unfunded mandates which are in the current
law, present those to the appropriate authorization committees so that
when bills are being considered at the committee level in hearings and
then later considered on the floor to final adoption, we will be in a
position to offer amendments that relate to those current levels of
unfunded mandates. And if successful, if we believe it is appropriate
and wise, to eliminate, reduce, or redirect the nature of the current
unfunded mandates.
The reason it is so important we pass this amendment and place that
responsibility for doing that analysis of existing unfunded mandates in
the Advisory Commission on Intergovernmental Relations is because it is
competent to do that job; it has a high level of confidence by persons
at the local, State, and Federal level. It has been in business since
1959.
It is not an entity which is going to be new to this issue, as
Senator Dorgan said. In fact, the ACIR has conducted some five major
studies of unfunded mandates within the last 10 years. So it will bring
a tremendous amount of expertise to this issue, and the ability to
apply that expertise on an expedited basis.
There are some very important reauthorizations which contain some of
the most egregious examples of unfunded mandates that are going to be
coming before this 104th Congress. It is very much in our interest that
we have an entity which can quickly move to do that analysis and make
that information available to Members so that during the course of the
next 2 years, we will be in a position to make some thoughtful
judgments in existing legislation as to whether we wish to continue
existing unfunded mandates.
Mr. President, for those reasons, I want to commend Senator Dorgan
for having offered this amendment and I am very pleased to join with
Senator Dorgan and his colleagues in its support.
I urge to my colleagues its adoption.
Mr. KEMPTHORNE. Mr. President, I, too, appreciate what the Senator
from North Dakota has carried out. It just makes a great deal of sense
to use an existing commission where we already have different
representatives from the impacted organizations serving as opposed to
creating a new commission. I think that makes very good sense.
[[Page S940]] Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, I send a modification to the desk.
Mr. LEAHY. Mr. President, parliamentary inquiry. What is the regular
order?
The PRESIDING OFFICER. Does the Senator yield for inquiry?
Mr. DORGAN. I would be happy to yield.
Mr. LEAHY. What is the regular order?
The PRESIDING OFFICER. The regular order will be to vote on the
Dorgan amendment.
Mr. LEAHY. A further parliamentary inquiry. And I appreciate my
friend from North Dakota yielding for this purpose. Further
parliamentary inquiry. Does that mean absent unanimous consent we would
have the vote that originally had been scheduled at 2:30?
The PRESIDING OFFICER. The Senator is correct.
Mr. LEAHY. Unmodified.
The PRESIDING OFFICER. The Senator is correct.
Mr. LEAHY. Further reserving the right to object--I probably will
not, but further reserving the right to object, if it would be in order
for me to ask the distinguished majority leader, might he tell me, if
this modification occurred, how many more votes we would have and when
we would finish voting?
Mr. DOLE. I would like to accommodate the Senator from Vermont and
others by having back-to-back votes and have the Senator out of here by
5 after 3 or 6 or 7 after 3. I do not know whether that accommodates
the Senator or not. So if we work it out, if we have back-to-back
votes, that will be it for today.
Mr. LEAHY. I will not object. I would only note, not that it affects
it, if we had had the vote at 2:30, I would have been able to make my 3
o'clock flight to Vermont to be with my family today. This way I will
not.
On things that we know we can work out, I would hope, for those of us
who do have families and do have homes in our home States and do prefer
to be there on weekends, that we might be able to have some more
exactness when some of these votes will occur. I know the leaders on
both sides were working hard on it, but it is unfortunate something is
happening now that could easily have happened 1\1/2\ hours ago.
I will not object.
The PRESIDING OFFICER. The Senator from North Dakota has the floor.

Amendment No. 18, as modified

Mr. DORGAN. I ask unanimous consent to modify my amendment. I have
sent the modification to the desk.
The PRESIDING OFFICER. Is there objection? Without objection, the
amendment is so modified.
The amendment, as modified, is as follows:

On page 39, strike out lines 4 through 11 and insert in
lieu thereof the following:

SEC. 301. BASELINE STUDY OF COSTS AND BENEFITS.

SEC. 302. REPORT ON UNFUNDED FEDERAL MANDATES BY ADVISORY
COMMISSION ON INTERGOVERNMENTAL RELATIONS.

SEC. 303. SPECIAL AUTHORITIES OF ADVISORY COMMISSION.

(a) Experts and Consultants.--For purposes of carrying out
this title, the Advisory Commission may procure temporary and
intermittent services of experts or consultants under section
3109(b) of title 5, United States Code.
(b) Detail of Staff of Federal Agencies.--Upon request of
the Executive Director of the Advisory Commission, the head
of any Federal department or agency may detail, on a
reimbursable basis, any of the personnel of that department
or agency to the Advisory Commission to assist it in carrying
out this title.
(c) Contract Authority.--The Advisory Commission may,
subject to appropriations, contract with and compensate
government and private persons (including agencies) for
property and services used to carry out its duties under this
title.

SEC. 304. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Advisory
Commission--
(1) to carry out section 301, and section 302 $1,250,000
for each of fiscal years 1995 and 1996.

Mr. DORGAN. Mr. President, if I might just in brief seconds explain
the modification. The modification is one that we have discussed with
the sponsors of the amendment, and it would make a change with respect
to the number of years and the number of dollars and the duties of this
commission. It would eliminate something called section 303, and it
would provide funding for the exercise of duties under section 301 and
302 for $1.25 million each of the years 1995 and 1996. This new version
still comports with this bill's original thinking of what the
commission would do. It accomplishes the result of the amendment. And I
appreciate the indulgence of my colleagues to explain the modification.
Mr. KEMPTHORNE. Will the Senator yield?
Mr. DORGAN. I will be happy to yield.
Mr. KEMPTHORNE. Does the Senator request the yeas and nays?
Mr. DORGAN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. KEMPTHORNE. Mr. President, also we have another amendment. I am
going to ask unanimous consent that it follow immediately after the
vote that is going to occur on the amendment of Senator Dorgan. This
simply deals with that issue, to further clarify that S. 1 will be able
to, in a report, define if there is any area of competitive
disadvantage to the private sector.
So I ask unanimous consent a rollcall vote on the Kempthorne-Cochran-
Levin amendment regarding committee reports on competitive balance
immediately follow the vote on the Dorgan amendment.
Mr. BYRD. Mr. President, reserving the right to object, we cannot
order rollcall votes by unanimous consent.
I have no objection to setting the amendment aside for this
amendment. I think it improves the bill and that is what I have been
advised by Senator Levin and others. But we cannot get that consent.
Mr. DOLE. Set it aside, offer it, and then have a rollcall vote.
Mr. BYRD. I have no objection, if the Senator makes the request to
set the amendment aside and that a vote occur immediately on the
second. I have no problem with that but we have to order the yeas and
nays by a show of hands.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Then my unanimous consent would embody what the
Senator from West Virginia has so stated, and following that, so we
would have a recorded vote, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there an objection that it be in order to
order the yeas and nays at this time? Without objection, it is so
ordered.
Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Will the Senator from Idaho please send the
second amendment to the desk.

Amendment No. 19

Mr. KEMPTHORNE. Mr. President, I now send the second amendment to the
desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

[[Page S941]]

The Senator from Idaho [Mr. Kempthorne], for himself, Mr. Cochran and
Mr. Levin, proposes an amendment numbered 19.

The amendment is as follows:

On page 15, line 12, after ``nesses'' insert the following:
``including a description of the actions, if any, taken by
the Committee to avoid any adverse impact on the private
sector or the competitive balance between the public sector
and the private sector.''

vote on amendment no. 18

The PRESIDING OFFICER. Under the previous order, the question now
occurs on amendment No. 18, offered by the Senator from North Dakota.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Montana [Mr. Baucus], the
Senator from California [Mrs. Boxer], the Senator from Hawaii [Mr.
Inouye], the Senator from Louisiana [Mr. Johnston], the Senator from
Arkansas [Mr. Pryor], the Senator from Nevada [Mr. Reid], and the
Senator from West Virginia [Mr. Rockefeller] are necessarily absent.
Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the
Senator from Utah [Mr. Hatch], the Senator from North Carolina [Mr.
Helms], the Senator from Utah [Mr. Jeffords], and the Senator from
Virginia [Mr. Warner] are necessarily absent.
I further announce that, if present and voting, the Senator from
North Carolina [Mr. Helms] would vote ``yea.''
The PRESIDING OFFICER (Mr. Santorum). Are there any other Senators in
the Chamber who desire to vote?
The result was announced--yeas 88, nays 0, as follows:

[Rollcall Vote No. 18 Leg.]

YEAS--88

Abraham
Akaka
Ashcroft
Bennett
Biden
Bingaman
Bond
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Grams
Grassley
Gregg
Harkin
Hatfield
Heflin
Hollings
Hutchison
Inhofe
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Robb
Roth
Santorum
Sarbanes
Shelby
Simon
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Wellstone

NOT VOTING--12

Baucus
Boxer
Gramm
Hatch
Helms
Inouye
Jeffords
Johnston
Pryor
Reid
Rockefeller
Warner
So, the amendment (No. 18), as modified, was agreed to.
Mr. GLENN. Mr. President, I move to reconsider the vote.
Mr. KEMPTHORNE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

vote on amendment no. 19

The PRESIDING OFFICER. Under the previous order, the question occurs
on amendment No. 19, offered by the Senator from Idaho [Mr.
Kempthorne]. The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm], the
Senator from Utah [Mr. Hatch], the Senator from North Carolina [Mr.
Helms], the Senator from Vermont [Mr. Jeffords], the Senator from
Virginia [Mr. Warner] are necessarily absent.
I further announce that, if present and voting, the Senator from
North Carolina [Mr. Helms] would vote ``yea.''
Mr. FORD. I announce that the Senator from Montana [Mr. Baucus], the
Senator from California [Mrs. Boxer], the Senator from Hawaii [Mr.
Inouye], the Senator from Louisiana [Mr. Johnston], the Senator from
Arkansas [Mr. Pryor], the Senator from Nevada [Mr. Reid], the Senator
from West Virginia [Mr. Rockefeller] are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 88, nays 0, as follows:

[Rollcall Vote No. 19 Leg.]

YEAS--88

NOT VOTING--12

Baucus
Boxer
Gramm
Hatch
Helms
Inouye
Jeffords
Johnston
Pryor
Reid
Rockefeller
Warner
So the amendment (No. 19) was agreed to.
Mr. GLENN. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. KEMPTHORNE. Mr. President, I move to lay that motion on the
table.
The motion to lay on the table was agreed to.

____________________