[Congressional Record Volume 141, Number 9 (Tuesday, January 17, 1995)]
[Senate]
[Pages S976-S985]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


[[Page S976]]
                      UNFUNDED MANDATE REFORM ACT

  The Senate continued with the consideration of the bill.


                                  vote

  The PRESIDING OFFICER. The pending question is now the motion to lay 
on the table the committee amendment beginning on page 15, line 6.
  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 New Jersey [Mr. Bradley], 
the Senator from Massachusetts [Mr. Kennedy], and the Senator from 
Nebraska [Mr. Kerrey] are necessarily absent.
  I also announce that the Senator from Arkansas [Mr. Pryor] is absent 
because of illness.
  Mr. LOTT. I announce that the Senator from Texas [Mr. Gramm] and the 
Senator from Texas [Mrs. Hutchison] are necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
who desire to vote?
  The result was announced--yeas 55, nays 39, as follows:

                      [Rollcall Vote No. 20 Leg.]

                                YEAS--55

     Abraham
     Ashcroft
     Bennett
     Bingaman
     Bond
     Brown
     Burns
     Byrd
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Frist
     Gorton
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Heflin
     Helms
     Inhofe
     Jeffords
     Kassebaum
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Nunn
     Packwood
     Pressler
     Roth
     Santorum
     Shelby
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--39

     Akaka
     Baucus
     Biden
     Boxer
     Breaux
     Bryan
     Bumpers
     Campbell
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Graham
     Harkin
     Hollings
     Inouye
     Johnston
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Pell
     Reid
     Robb
     Rockefeller
     Sarbanes
     Simon
     Wellstone

                             NOT VOTING--6

     Bradley
     Gramm
     Hutchison
     Kennedy
     Kerrey
     Pryor
  So the motion to lay on the table the committee amendment on page 15, 
line 6, was agreed to.
  Mr. KEMPTHORNE. Madam President, I move to reconsider the vote.
  Mr. GLENN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Michigan.
  Mr. LEVIN. I thank the Chair.
  Madam President, I am wondering if I could engage the managers in 
some colloquy and dialog as to how this bill will function in the real 
world. There are some real problems in terms of the process.
  This bill is different from last year's bill. First, I want to make 
sure that our colleagues are aware of the fact that this is not Senate 
bill No. 993. There is a new point of order which is incorporated in 
this bill which is going to have some very serious ramifications in the 
way we function around here.
  I am somebody who voted for last year's bill. I would like to vote 
for this year's bill. I came out of local office. I was in local 
government for 8 years. I understand the impact of unfunded mandates. I 
believe we have to do more than what we have done and that last year's 
bill was about the right balance to accomplish a greater awareness on 
our part to create a point of order in order to ensure that we would 
have an estimate before us. But this year's bill goes significantly 
beyond that. And that point of order in this year's bill is frequently 
an impossibility.
  We are building into the structure here something which, at times, 
cannot be accomplished. The Congressional Budget Office has told us 
that. They have written to us that it is impossible, or nearly 
impossible, to make estimates as to the cost of mandates 5 or 10 years 
down the road on State and local government. They just simply cannot do 
it.
  This bill says that on every bill and amendment--not just every bill, 
but every amendment--that comes to the floor, it will not be in order 
even to offer the amendment, or to offer the bill, unless there is an 
estimate in that amendment and in that bill which we know, going in, 
cannot be made at times. We know it. The Congressional Budget Office 
has told us.
  We can all close our eyes around here and pretend that these 
estimates can be made all the time. We know they can be made some of 
the time. By the way, it is current law that the Congressional Budget 
Office make these estimates whenever they can, whenever feasible. They 
have been making estimates for the last 10 years. They have made 
hundreds of estimates at the cost of these mandates on local and State 
government. I do not know how many times folks around here have looked 
at those estimates. But they have made hundreds of them. It is not new, 
attempting to make the estimate.
  What is new in this bill is that there is so much that hangs on that 
estimate for the first time. A point of order will be available. It 
will be out of order to offer an amendment on this floor that does not 
contain an estimate. What happens if you cannot get the estimate? What 
happens if you just cannot get the estimate, or the Congressional 
Budget Office cannot make an estimate? Can they tell us they cannot 
make an estimate? Oh, no; they cannot tell us they cannot make an 
estimate.
  If it were in the private sector, they can tell us. If this were a 
mandate that applied to the private sector, the bill says, yes, then 
they can tell us that they cannot do the estimate. But when it comes to 
the intergovernmental sector, to the State and local government, if the 
Congressional Budget Office cannot make the estimate, they are not 
allowed to tell us.
  But the point of order still lies. You cannot offer an amendment 
unless it contains an estimate, and we know going in--I think each one 
of us knows--that there will be times when an estimate cannot be made 
of the cost of something 5 or 10 years down the road on 87,000 local 
jurisdictions.
  We have to spend some time on this mechanism. This is too serious a 
change. This was not in last year's bill.
  This year's bill, in Governmental Affairs, at least, was offered on a 
Wednesday night. This was filed on a Wednesday night. The hearing was 
on a Thursday, and the markup was scheduled for Friday. Well, we 
resisted, some of us, and said, ``There just isn't enough time. Can you 
at least give us a few more days on the markup?'' We fought for that 
and got a markup on a Monday.
  We asked for a committee report. No, that was denied on a party line 
vote. We could not get a committee report in Governmental Affairs on 
the Monday markup. So we did not have a committee report. And then we 
had to delay consideration here using whatever means were available to 
us until we could at least get a committee report.
  The same process in the Budget Committee. A request for a committee 
report. No effort to try to defeat this bill. Most of us are cosponsors 
of this bill. I think this bill has something like 60 or 70 cosponsors. 
Most of us, maybe 80 of us, would like to vote for this bill. This is 
not an effort to kill a bill. This is an effort to produce a bill that 
is workable, that has a decent balance in it that we can live with on 
the floor.
  As I said, I cosponsored the bill last year. But this is a different 
bill this year, and it has a mechanism in it which is potentially going 
to create havoc for us, which we are either going to have to ignore, 
which no one should want to put in place. We do not want a point of 
order that is constantly ignored around here or it is going to have so 
much bite it is going to strangle this process. ``I send an amendment 
to the desk.'' Someone jumps up, ``Point of order. It does not contain 
the language that says that local and State governments will not have 
to comply with the mandate.'' ``There is no mandate in this 
amendment.'' ``Yes, there is.'' ``No, there isn't.''
  Is the Parliamentarian going to decide whether there is a mandate? 
And then who is going to decide how much that mandate costs 5 or 10 
years down the road? Is that just going to be decided here at 8 o'clock 
at night after an 
[[Page S977]]  amendment is sent to the desk, how much it will cost 
87,000 jurisdictions 5 years from now? Are we seriously legislating 
when we put into place a point of order like that?
  No provision for saying that they cannot make an estimate when we 
know full well they cannot. What about a range? Can we get a range? 
Well, some say yes, some say no. Some say this bill will allow for a 
range; some say it will not. What happens if it does? What happens if 
the CBO throws up its hands and says, ``You are asking us to figure 
what this will cost 87,000 local jurisdiction 5 years down the line. We 
say it will cost somewhere between $1 and $500 million. That is the 
best we can do.''
  Well, now you have to have an estimate in a specific amount and you 
have to pay for it or you have to waive it as to local government, 
State government. Or you have to say, in order to avoid the point of 
order, if the Appropriations Committee 5 or 10 years down the line does 
not appropriate what you estimate today or what CBO estimates today, 
then it will be ineffective at that time.
  We are building in a nightmare for ourselves. We have to try to solve 
the problem for State and local governments, and we can, I believe. We 
can force a greater awareness upon ourselves as to what they go through 
when we adopt a mandate. But we just cannot simply here, without 
spending some time on how a point of order would work such as has been 
constructed in this bill, unlike last year's bill, we cannot simply put 
ourselves into a potential grinder here where we have to ignore a point 
of order, routinely ignore it.
  Since this is 50-vote point of order, some people say, ``Well, you 
can just vote down the point of order.'' Well, we do not want to put 
ourselves, on amendment after amendment after amendment, where a point 
of order lies because the amendment does not contain those words which 
are required, either ignoring it routinely or having this thing that 
has so much force that we are in a straitjacket. We have to be able to 
legislate.
  Should we force ourselves in some way to consider what the costs are? 
Yes, I would like to do that. I used to have to live with these 
mandates. For 8 years in local government in Detroit, I had to live 
with these mandates.
  One of the reasons I came to this town was because I was so upset 
with Federal mandates and the way Federal programs were operating. That 
was one of the reasons I ran for the Senate. I understand local 
officials and Governors who have to deal with what we do.
  So we have tried in the last few years to put estimates into law and 
into the committee reports. We have required CBO to come up with 
estimates. And CBO has tried, with bills, at least, reported out of 
committee, to come up with estimates. Sometimes they cannot do it. They 
are unable to tells us. They just cannot do it. But we will not let 
them do it here on the intergovernmental mandates. We will not let them 
be honest. We are adding to the bills as they come to the floor a 
requirement that that same estimate in a specific amount be made by the 
CBO on every amendment that comes to the floor.
  So, Madam President, what I would like to do, and before I go 
further, let me just commend the managers and the sponsors of this 
bill. While I have problems with certain aspects of the new bill, I 
must say they have been steadfast in their determination that we do a 
lot better to force ourselves to consider the costs of these mandates 
on State and local and tribal governments.
  And while I have some disagreements with the new bill, I must say 
that they deserve a tremendous amount of credit and thanks of this 
Senate and of this country for keeping the issue before us. It is an 
important issue. And no one that I know of is trying to sink this bill. 
A number of people are trying to make this bill look more like last 
year's bill in terms of the balance that was struck, and that is going 
to take some time and I think legitimately should take some time of the 
Senate.
  This bill simply goes too far. Unlike last year's bill, which had a 
point of order if there was no estimate and if the estimated amount was 
not authorized. This year's bill, in effect, requires that you either 
fund it or put language in your authorization bill which will direct 
the agency to ignore it for State and local governments unless the 
appropriators downstream put in the amount of money which the estimates 
indicate will be required for State or local governments.
  Now, there is a very basic philosophical issue. What about cases 
where you have businesses competing with local government? My friend 
from Kentucky just mentioned the word ``business,'' which raises a very 
important point that I want to address. And I am not sure it is exactly 
the same point that crossed his mind, but there is a very significant 
issue here.
  You have two incinerators that are competing for the same business. 
You have a government-run incinerator and you have a privately run 
incinerator. Do we want to imply or suggest that there will be a 
mandate that is either not applied to the government-run incinerator--
on clean air for instance, a new clean air requirement--but it will be 
applied to the private incinerator? Do we want to create a presumption 
that when you have business competition between a private and public 
facility such as that, be it an incinerator or a hospital, that we are 
going to apply a new mandate to the private sector but not to the 
public sector?
 Is that the assumption we want to make? Is that the presumption we 
want to create?

  That, I believe, creates a real problem. This is real, folks. We have 
private and public hospitals all the time. Are we saying that there 
will be a presumption that a new increase in the minimum wage will 
apply to the private hospital but not to the public hospital? Is that 
the message we want to send? Should we consider the impact on the 
public? Of course. Should we consider the impact on both public and 
private? I believe we should.
  I hope that this bill will succeed in another one of its purposes, 
which is to get Members to look at the impact on the private sector, as 
well as on the public sector. That is one of the purposes of this bill.
  This bill goes beyond that when it comes to the public sector. On the 
public sector, it creates this point of order that I just described, a 
point of order which does not exist relative to the private sector. I 
think there is a serious problem, philosophically, which is raised when 
we do that in areas where we have competition, where the greater impact 
of a mandate is on the private rather than on the public.
  It seems to me that we have a serious issue philosophically as to 
whether we want to create the expectation that this mandate is going to 
be waived or paid for when it comes to that public incinerator or to 
the public hospital, but not going to be waived or paid for when it 
comes to that private incinerator or that private hospital.
  What I would like to do, if I could, with my friends from Idaho and 
Ohio, is to take a hypothetical case and walk through the steps. What I 
have done is just set forth a hypothetical Senate bill. I believe I 
have given a copy of this description to each Senator so they can have 
it in front of them. This hypothetical bill mandates controls on 
dangerous levels of mercury from incinerator emission after October 1, 
2005. That is the bill. It also designates the EPA to determine what 
constitutes a mercury level dangerous to human health.
  I would like to focus on that hypothetical and ask a number of 
questions of the managers. First of all, what is the effective date of 
that mandate? Now, the reason that that becomes critical is that that 
triggers the estimate, the estimate upon which so much hangs--including 
a point of order--the estimated cost to State and local governments in 
the first fiscal year after a mandate is effective, and in each of the 
4 fiscal years thereafter.
  So the first question I would like to ask the Senators from Idaho and 
Ohio is, what is the effective date of that mandate?
  Mr. DOMENICI. Madam President, will the Senator repeat the last part 
of the precise question?
  Mr. LEVIN. Madam President, I am sorry, I did not give a copy of this 
to my friend from New Mexico. Let me get this to the Senator.
  The PRESIDING OFFICER. If there is no objection, Members may engage 
in a colloquy.
  Mr. DOMENICI. Madam President, I yield the floor.
   [[Page S978]] Mr. LEVIN. Madam President, I ask unanimous consent, 
then, that I be allowed to engage in a colloquy with the managers 
relative to the way in which this bill would be implemented, without 
losing my right to the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. Madam President, in response, first a few points.
  I appreciate the fact that both the chairman of the Budget Committee 
and the chairman of the Governmental Affairs Committee are here. I 
think what is most important, as the Senator from Michigan poses these 
questions, is that either myself, the ranking member on Governmental 
Affairs, the Senator from Ohio, or the two chairmen respond to that so 
we can lay this issue out there.
  Also, a couple of other points I will make, because the Senator from 
Michigan gave a bit of an overview. One of the points that was stated 
is what if CBO simply cannot estimate this? What if we cannot come to 
terms with it?
  The alternative, then, is that we will continue the process we now 
have, which is we do not require this information and we do not really 
make the effort. So we want to have as much information as possible 
before the vote, instead of after the vote, so that if at some future 
point we know the impact to local or State government after the fact, 
then we do the calculation.
  Mr. LEVIN. Madam President, I wonder if my friend will yield on that 
point.
  We do require such a calculation now. We have had something like 850 
of those calculations, I think, in the last 12 years. There is a law, 
the Congressional Budget Act, which requires the Director of the 
Congressional Budget Office, to the extent practicable--very important 
words, to the extent practicable--to prepare for each bill or 
resolution an estimate of the cost, which would be everything incurred 
by State or local governments.
  We do currently require these estimates. Now, sometimes, those 
estimates cannot be made. We have gotten a report from the 
Congressional Budget Office that they cannot make the estimate at 
times. They just simply cannot estimate. They say it. When they cannot 
estimate it, they say they cannot estimate it.
  What this bill does, is say, ``You have to estimate.''
  Mr. KEMPTHORNE. Madam President, if I may, to continue our 
discussion; yes, we do ask CBO to make an estimation. The Senator is 
correct. Since about 1981, CBO has been required to do some estimating. 
They have begun to build some years of information that will help them, 
I think, in making future estimates.
  Now, in the event that CBO undertakes to accomplish what is required 
in this bill, to estimate the cost of the mandate, we asked them to 
make that effort. If they come back and their report says, ``We are 
unable to do so for these reasons,'' then they have fulfilled their 
responsibility.
  Mr. LEVIN. With an intergovernmental mandate.
  Mr. KEMPTHORNE. With an intergovernmental mandate. If they simply 
cannot--but they must make the effort. That is the point.
  Mr. LEVIN. If the Senator will yield, that is not the way I read this 
bill, because this bill explicitly permits in the private sector that 
statement. But there is no such explicit permission to make that 
statement with the intergovernmental sector.
  As a matter of fact, I believe the committee report explicitly notes 
the difference. I think the Budget Committee report explicitly takes 
note of the fact that in the private sector, we do permit the Director 
of the CBO to say that he cannot make the estimate.
  On page 20, line 24, of the bill, it says:

       If the Director determines that it is not feasible to make 
     a reasonable estimate that would be required, the Director 
     shall not make the estimate but shall report in the statement 
     that the reasonable estimate cannot be made and shall include 
     the reasons for the determination in the statement.

  That is referring to ``private sector mandates,'' subsection B. That 
provision is explicitly part of the private mandates section. When it 
comes to the intergovernmental mandates, there is no such language 
which allows the Director to be honest. We have an honesty provision 
when it comes to the private sector. We say, ``If you cannot do it, you 
can tell us,'' but when it comes to the intergovernmental sector, there 
is no such language.
  Mr. KEMPTHORNE. Again, Senator, that is correct. We require, on an 
intergovernmental, that there not be an estimate. But in going through 
that process, it may be that the conclusion of that estimate is that 
they just cannot provide the data that we are after.
  So, Senator, because of the process, there is a waiver. That may be 
the rationale, the justification, to come to the floor and to seek a 
waiver of that point of order.
  Mr. LEVIN. Why, then, do we not have the same language on the 
intergovernmental as we do on the private?
  Mr. KEMPTHORNE. If there is no estimate for CBO, the Chair will have 
no alternative but to rule that the point of order will not lie, 
because there would be nothing upon which to base a decision.
  Mr. LEVIN. But the question is, if we allow for the fact that a 
director in the private sector is unable to make the estimate, why do 
we not have the same language relative to the intergovernmental 
mandates? Why not the same honesty? Why not the same honesty allowance 
relative to the intergovernmental mandate as we have in the private 
sector? Why that distinction in the bill?
  Mr. DOMENICI. Will the Senator yield for an observation?
  Mr. KEMPTHORNE. Sure.
  Mr. DOMENICI. Madam President, first of all, I want to say to my good 
friend, who is managing the bill, I would very much like to be here for 
the whole dialog. I am not sure I can. I have to leave for a little 
while, but I will just address this one this way.
  Mr. LEVIN. If I could interrupt, I will be happy to try to schedule 
this to accommodate my friend, the chairman of the Budget Committee, if 
that would be helpful. Please just let us know and we can try to 
schedule this.
  Mr. DOMENICI. I am one who has been preaching reform measures around 
here that the Senate floor ought to come first, and here I am telling 
the Senate that I have something else that, obviously, is more 
important. But I already had these appointments, and I cannot get out 
of them.
  Let me just answer the precise question and then try to come back 
here.
  I say to both Senators and the managers, if there is something 
further that I might accomplish later on, I will come down again and I 
will go back through the Record and answer them as I see them.
  First of all, let me suggest, on your last question about why in one 
section and not in the other, with reference to the impossibility of 
doing it, we have 11 years, my staff tells me, of experience in 
estimating the cost of public mandates. We do not have any experience 
in estimating the cost of private sector mandates, to speak of. That 
means that clearly the Congressional Budget Office, which has to gear 
up for this entire episode, both public and private--we know it is 
going to take some additional money, but we also know it is going to 
take brand-new staff, and we are fully aware, while we are cutting 
everything, that has to go up a little. We need to give some latitude 
on the private end because we have not done it, and we follow up and 
say since we have been doing it on the public we ought to be able to.
  Let me proceed and take your specific statute and just give a few 
observations. Frankly, while I understand we have passed environmental 
laws in the past that are even harder to estimate than this, because we 
leave to the EPA or some other department almost full latitude, I am 
advised that probably the way the Congressional Budget Office would 
handle this--this is from people who have been there and are 
experienced. I went and called when the Senator from Michigan started 
asking questions--they would get in touch with each other and maybe 
even visit and talk about this mandate. The Environmental Protection 
Agency would hopefully give every bit of information they have as to 
the parameters of this mercury level. It is apt to be here or at least 
give them something to work with. Then they would probably take that, 
in terms of that level and they would give us the best estimate they 
could with reference to maybe either of two levels, but we would get 
something.
   [[Page S979]] If they said it is absolutely impossible, then it 
appears to me that we cannot ask for anything more, and one of two 
things will happen: Either what the distinguished manager has said, 
that the Chair would rule that a point of order cannot be made against 
it, or the point of order could be made and waived on the basis that we 
do not know.
  But let me suggest that there might be a third thing that could 
happen. It may very well be that the looseness with which we delegate 
might be tightened up somewhat. I am not suggesting that a bill with 
that in it is wrong, but I am suggesting that if this bill is saying to 
the American people, ``We want to honestly tell you the cost before we 
pass it to the maximum extent,'' then we may be finding that we have to 
get more clarity in the legislation that passes so it can be evaluated 
more properly.
  I thank the Senator, and I yield the floor.
  Mr. LEVIN. I certainly agree with the third point that the Senator 
from New Mexico made. Let me go back to the first point, the fact we 
have had experience with these estimates. This is not new, making 
estimates on intergovernmental mandates. We have had hundreds of them. 
We are required by current law. What we have never done is hung a point 
of order on it the way this bill does when it is impossible, in some 
cases--and we know it will be--to make the estimate.
  This is the experience of the Congressional Budget Office. Based on 
their experience in intergovernmental mandates, they have told us it is 
impossible sometimes to make these estimates. That is on a bill where 
they are being given a bill in advance of consideration of the floor. 
Multiply that by 100 times when it comes to amendments, because this 
current bill, S. 1, does not just cover bills that come to the floor, 
it covers amendments.
  I believe if we are going to be straight with ourselves, we have to 
acknowledge two things: That with this experience that the 
Congressional Budget Office has in making estimates, they are telling 
us there are times when they cannot make estimates on intergovernmental 
mandates. That is based on their experience.
  Second, I think if we are being straight with ourselves and with this 
process, we are going to have to acknowledge that there is no way that 
when you include all amendments under this point of order process that 
we are going to be able, with any intellectual accuracy, to get an 
estimate of the cost of every amendment and its mandate which is 
offered here so it can be properly considered.
  Every amendment is subject to a point of order. The language of the 
bill is it will not be in order to offer a bill or an amendment unless 
certain language exists in that amendment, unless there is an estimate 
of the cost of an intergovernmental mandate in that estimate.
  There are a number of questions: Can I even get an estimate as an 
individual Member of the Senate so I can offer my amendment? There is 
no provision for an individual Senator to get an estimate. The way I 
read this, the only estimates that are required by the Congressional 
Budget Office are estimates after a bill is marked up in committee and 
is sent to the floor. The chairman and ranking members of committees 
can also seek estimates, as I read the bill. But there is no provision 
in this bill which gives me any assurance as an individual Member, or 
it gives 100 of us an assurance that we can even get the estimate, and 
if we do not get the estimate, a point of order lies.
  Mr. KEMPTHORNE. Will the Senator yield?
  Mr. LEVIN. I will be happy to yield. I will just conclude this point.
  What this bill requires us to do, unlike last year's bill, is to get 
an estimate which at times we know is impossible to make from the 
experience of CBO, even on a bill, and we know it is even more 
impossible on more amendments to get. There is no provision in the bill 
that we even have standing as individual Members of the Senate to 
obtain the estimate, in any event, since the only ones that seem in the 
bill to be guaranteed that estimate from the CBO would be bills that 
come to the floor that have been approved by committees and, to the 
extent practicable, Chairs and ranking members of committees.
  I will be happy to yield. I do want to go back, however, to my first 
question, which is, what is the effective date of the mandate in this 
hypothetical that I have given? And again, so that we are all working 
from the same hypothetical, it mandates reductions of dangerous levels 
of mercury from incinerator emissions after October 1, 2005, and the 
EPA is designated to determine what constitutes a mercury level 
dangerous to human health.
  My specific question is, What is the effective date of that mandate 
since that is what triggers the estimate? It is critical that we know 
the effective date because that is when the 5 fiscal year estimates 
begin.
  Mr. KEMPTHORNE. If the Senator will yield?
  Mr. LEVIN. I will be happy to.
  Mr. KEMPTHORNE. We are calculating that so we can respond to that 
specifically.
  I also, though, want to respond to the point that we are creating 
something unusual, we are creating--I do not know what terms were 
used--but suddenly we are going to make this very difficult for 
legislation to proceed or for amendments.
  If I may, I think this is important. Yes, S. 1 establishes a new 
point of order under the Budget Act against incineration mandate 
legislation in the Senate unless the mandate is paid for. I believe 
strongly in that. So do local and State governments and tribal 
governments. The point of order--this applies to all legislation 
including bills, joint resolutions, amendments, motions or conference 
reports and can be waived by majority vote. It is a process.
  This point of order and the Budget Committee's role in its 
enforcement are modeled after similar provisions in the 1974 Budget 
Act. The language in S. 1, and I think this is very important, applying 
the mandate point of order to amendments, is identical--identical to 
language in the Budget Act. Madam President, 21 separate provisions of 
the Budget Act provide a point of order in the Senate against 
consideration of amendments; five of these provisions establish points 
of order that only apply to amendments.
  This is not new ground. This is not something unprecedented. Madam 
President, 21 separate provisions have a point of order. The Senate, 
the Senate Parliamentarian's office, the budget committees, have 20 
years of experience with these Budget Act points of order and their 
application to amendments.
  In practice, the Senate Budget Committee staff monitors legislation, 
works with the Parliamentarian's office to determine violations, and 
works with CBO to provide the Parliamentarian's office with estimates 
to determine whether legislation would violate the Budget Act. In 
instances where the press of Senate business does not allow CBO 
sufficient time to prepare such estimates, the Senate Budget Committee 
is called on to provide them. Regardless of what estimate is used, the 
Senate is the final arbiter of its rules, that is the rules of the 
Senate. Should a Senator disagree with the estimate, he or she could 
appeal the ruling of the Chair. But as these amendments are brought 
forward, the burden of proof that they exceed--in case of 
intergovernmental, a $50 million threshold--that burden of proof lies 
with the Senator who would make the point of order.
  You can bring your amendment to the floor of the Senate without 
having had it scored by CBO. But, in all reality, it just seems to me 
and it seems to a lot of other folks that if you have an amendment that 
is somehow close to this threshold, it makes sense that you would call 
and get CBO to give you an estimate of the cost, or that you would work 
with the Budget Committee because soon we would be voting on that 
amendment.
  Are we saying that because we may want to take a few minutes to call 
and get that estimate that we should not do that because the hour is 
late? And it is a multimillion-dollar decision that we are going to 
cast votes on, and the implications that it would have?
  Mr. LEVIN. I am saying quite the opposite, if the Senator would 
yield. Quite the opposite.
  It is worth getting an estimate. It is worth getting an honest 
estimate. And 
[[Page S980]] there is no way that in a few minutes, or in a few 
hours--indeed in a few days, if you listen to the Congressional Budget 
Office--that you can get an estimate of the cost of a mandate on 87,000 
jurisdictions. Of course we have points of order in the Budget Act. 
They have to do with levels of Federal spending of the Federal 
Government. What is new here is that a new point of order is going to 
be created, unless you have an estimate in a specific dollar amount of 
the cost. It could be years away--on 87,000 State and local units of 
government. That is very new.
   Is it worth getting? Of course it is worth getting, if you can. But 
you say you can bring an amendment to the floor even without an 
estimate. The way I read the bill: ``It shall not be in order in the 
Senate to consider''--and then the words are ``any bill, joint 
resolution, amendment, motion, or conference report.''
  It is not in order for the Senate to consider those.
  Several Senators addressed the Chair.
  Mr. KEMPTHORNE. I am sorry. If I could just complete that thought. It 
is not self-executing.
  Mr. LEVIN. Someone could raise a point of order.
  Mr. KEMPTHORNE. Someone could raise a point of order but you could 
allow amendments in a given event without anybody making that point 
order.
  Mr. LEVIN. Is that the intent of the Senator, that a point of order 
not be raised when an estimate is not present?
  Mr. KEMPTHORNE. I think I have made it clear. I think it is a 
responsible thing. But if you are going to offer a multibillion-dollar 
amendment, certainly that did not just come to mind that night. 
Certainly you have talked with either the Budget Committee or CBO.
  But, again, it is not self-executing. That would be the basis that a 
ruling could be made that the point of order lies. Then you could seek 
the waiver.
  Mr. LEVIN. I think we are in a way on the same wavelength because I 
think it is important that we get honest estimates, too. My question 
is, If the CBO cannot estimate it--cannot estimate it, it is still out 
of order.
  Let me put it a different way. If the CBO cannot estimate it--it is 
tough. They have to. Because you do not have the language on the 
intergovernmental side that you do on the private side that allows them 
to say they cannot make the estimate. You could still keep your point 
of order, because there is no estimate that meets your test. But what 
you do not do in this bill, for the intergovernmental sector, is to 
allow the CBO to be honest the way you do in the private sector.
  We tried this amendment in conference, to simply say if the CBO 
cannot make the estimate in the--excuse me. We offered an amendment in 
markup, where we said if the CBO cannot make the estimate--which has 
been true in many cases before--that they should be allowed to say so 
on the intergovernmental side, the same as they are allowed to do on 
the private side, so we can know that.
  Mr. GLENN. Will the Senator yield?
  Mr. LEVIN. I will be happy to yield. This may be something where we 
have asked weeks in advance, by the way, not just minutes in advance, 
weeks or months in advance, assuming we can get answers as individual 
Senators from the CBO, which we have no right to do in this bill.
  But assuming we could get an answer from the CBO, they may tell us 
they cannot make this estimate. We have been diligent. We have tried 
for weeks and weeks and weeks and months to get an estimate and cannot 
get it because they say there is no way they can make this estimate for 
various reasons. It may be that the EPA is going to determine a level 
after a public hearing, notice and comment, as to what an unsafe level 
of mercury is. And they are not willing to say in advance of a public 
hearing and comment what that unsafe level of mercury is. And the CBO 
comes back to us and says we cannot make this estimate.
  Why not allow them to say that in the intergovernmental side the way 
we allow them on the private side? The Senator from New Mexico says 
they have more experience on the intergovernmental side. That works 
exactly the opposite way because their experience tells them they 
cannot do it in some cases. Why not let them say it? We offered an 
amendment in committee to allow them to say it, allow them to be honest 
on the intergovernmental side the way we do on the private mandate. But 
that was defeated.
  So, I think it is a matter of just honesty, frankly, in legislating, 
to allow the CBO to say what we all know is true. That there are times 
that, even with a lot of notice, they cannot estimate the cost of 
intergovernmental mandate the way they cannot do a private mandate. I 
will be happy to yield.
  Mr. GLENN. Madam President, If the Senator will yield, I think, 
backing up the Senator from Michigan, I would have to say, in law--
whether being misconstrued or not--but to leave any doubt that CBO can 
say there are things we cannot score, there are things we do not know 
the answers to, there are things we cannot make estimates on, and they 
say that--and to say, ``but you have to whether you can or not,'' or 
something is not going to apply on the floor here, I think is the 
height of folly. I do not see the point of this, in trying to say if 
you cannot make an estimate that you have to anyway.
  What is the worst thing that happens if we say OK, we recognize the 
fact that you cannot make an estimate and if the CBO, with all their 
expertise cannot, I am not going to say that the Budget Committee is 
going to be any more able to do some of these things? There will be 
occasions where the Budget Committee also will say CBO could not and we 
cannot either.
  Does that say that a bill cannot come to the floor? No. I will tell 
you what it says. It says we will not have the waiver and the point of 
order and the waiver vote on it. But the worst that happens is a bill 
comes to the floor like it does now. We say, Here is what we think, and 
debate it, and we pass it or we do not pass it. But to say that a bill 
that CBO has considered and the Budget Committee has considered and say 
there is no estimate we can possibly make on this just by the nature of 
it--we already have a letter from CBO saying that would be the case 
sometimes--but to say you have to have one no matter what or you cannot 
bring a bill to the floor sort of seems to me a little bit ludicrous.
  Mr. DOMENICI. Will the Senator yield?
  Mr. GLENN. Yes.
  Mr. DOMENICI. I have just been called by the leader, so I am leaving. 
But I wanted to make an observation, and then I will come back. If you 
want to come, you and I, sometime to further clarify, I will be here.
  First of all, everybody should know that since the Budget Act has 
been in existence--how many years?--20 years, this same puzzle has been 
there. Some things cannot be estimated--very difficult to do it, I 
should say. Amendments are hard to examine. I give you the best example 
of just forcing it to work. That is health care. The Senator spoke of 
how many thousands of jurisdictions? About 87,000 would be affected. We 
had millions in health care. We never took up an amendment without an 
estimate. In our debate some things had to wait awhile. Some amendments 
had to be set aside. CBO had to beef up. They had to ask for lots of 
help.
  I think those of us who are looking at the effect of mandates on the 
Federal Government versus the States in terms of governance and a lot 
of other things are saying times must change, we have to find a system. 
This system is not perfect, but let me suggest that if the Senate 
desires in the future to offer a bill or an amendment that is so tough 
to estimate that as hard as we try somebody comes down here and says, 
``Senators, that is it,'' what it will permit is for the U.S. Senate to 
work its will, not this bill. The Senate will then have before it what 
is probably an onerous mandate. If it is not very onerous on its face, 
nobody would ever be worried about it. So you probably will have an 
onerous mandate. It is going to cost a lot of money. And the Senate 
will be put to the test. Do you want to pass it anyway? That is by a 
simple majority. Or do you want to say something different for a 
change, and you probably, in living up to the spirit of this, will do 
something different for a change. You will probably say we are not 
going to pass this. I would think that is one alternative. We have to 
get some better way to define what we are 
[[Page S981]] trying to do. Or you might find another way. You might 
pass it and put an amendment in that 3 years from now we will come back 
to the floor because by then we ought to have mandates and it still 
will not be in effect. Then we will pass on that.
  In other words, we will make the kind of senatorial, in the Senate, 
on-the-floor changes to accommodate. But it will be an accommodation to 
a very, very different set of precepts--which I believe my friend 
agrees with--precepts of getting it done if you can, not hanging them 
out there without anything about them, if you can do other business. I 
think he agrees with that. I think that is what this process is going 
to yield. It has been tried a long time.
  Sometimes it is very befuddling when we try to use a point of order. 
But I also say that those who want to amend the 51-vote point of order 
to 60, there is another example why whoever crafted it crafted it well 
because a point of order is a majority vote, not a 60-vote point of 
order. That clearly makes the U.S. Senate work its will on the kind of 
cases you are describing which are brought up by this amendment.
  Mr. LEVIN. If the Senator will yield on that point, it is fine for 
the Senate to work its will, but it ought to have an estimate in front 
of it, if it is feasible, which is reasonably accurate when it works 
its will because a point of order is hanging on this unlike any point 
of order in the Budget Act. This point of order does not relate to 
Federal spending and the level thereof. It relates to what it would 
cost 87,000 jurisdictions. This is a different kind of an animal from 
anything that we have ever had in the Budget Act, No. 1.
  No. 2, I think here my friend would agree with me. If the Senate is 
expected to work its will on waiving the point of order--and both the 
Senator from Idaho and the Senator from Ohio are absolutely correct; 
this is not a no money/no mandate. This says under some circumstances, 
if there is no money, there will be no mandate.
  But what is unique about this is that you are not allowing in this 
bill the Congressional Budget Office to say that you cannot make the 
estimate. We do it in the bill for the private sector. We do it in the 
bill for the private sector, but it does not allow the CBO to be 
honest. Why not allow the CBO to be honest when it comes to the 
intergovernmental mandate?
  It is true, we still have a 50-vote point of order. If they say they 
cannot make the mandate, that point of order still lies. But now you 
have something that you can be aware of. The CBO says it is impossible 
to estimate the cost of that mandate and why. That may cause some 
people to vote no. I think my friend from New Mexico is right. A lot of 
people will vote ``no'' if the CBO says it is impossible to estimate 
the cost. It may on the other hand cause other people to vote to waive 
the point of order because there had been an honest effort made to get 
the estimate and it is simply impossible; it is too far out. It depends 
upon agency determination to have closed rulemaking.
  My question is why not allow honesty on the part of the CBO and, if 
they cannot make an estimate, to say so in the intergovernmental 
mandate the way we do in the private mandate? We being the bill. If the 
bill says, CBO, be honest, if you cannot estimate the cost in the 
private sector, tell us for whatever impact that has on the Senate 
floor, that may cause some of us to vote no on the whole bill. That may 
cause others to vote ``yes.'' We do not know the impact of that 
information. But we do know that, when it comes to the private sector, 
we allow the CBO to tell us if they cannot make the estimate, but when 
it comes to the intergovernmental side, there is no such authority to 
CBO; you must make an estimate. And I want the Senate to work its will. 
But I want it to work its will on the basis of information which is 
solid. If we are going to force the CBO to make an estimate when they 
cannot make an estimate, we are going to be getting bum information 
from the CBO. They are going to take wild, out-of-the-blue guesses as 
to what this thing costs. In order to comply with the law, they must 
make an estimate.
  Is that legislating in the light? Is that legislating knowing the 
cost of estimates? No; what that is saying is we are going to go 
through a formalistic process forcing the CBO to do something which 
they have told us at times they cannot do, and somehow or other we are 
going to feel better if we therefore now know the estimated cost of a 
mandate on State and local government. Do we really feel then that we 
now have information which is usable to us, that we can make a decision 
based on information because we have forced the CBO to do something 
that they have told us at times they cannot do? So what happens if they 
come up with a range? They just throw up their hands. This will cost 
from $1 million to $500 million. That is their estimate.
  By the way, it is unclear that they can even give us a range. But to 
the extent that they are allowed to give us a range--again it is very 
unclear in the bill. We get two different answers on that question. But 
assuming they are allowed to give us a range, is that helpful to us? 
This will be from $1 million to $500 million. Now, are we really 
legislating knowing the impact on local government? That does not tell 
us anything. What level does the appropriations have to reach in order 
to avoid the requirements of this bill? Is it the $1 million or the 
$500 million? Is it a range?
  So, again, I agree with what this bill is trying to do. I think last 
year's bill did it. Last year's bill had the support of all the 
Governors, by the way. This year's bill has even stronger support of 
the Governors, I am sure. But the Governors association and local 
governments supported last year's bill where we did not have this point 
of order that we have in this year's bill. We had the estimates. We had 
a requirement that they get an estimate.
 But we did not say that a point of order would lie, unless there is an 
estimate in a specific amount with certain ramifications.

  I know my friend from Delaware is the chairman of the committee, and 
he has been attempting to get the floor. I certainly do not want to, in 
any way, control the floor. I am in the middle of a colloquy, with the 
unanimous consent of the body, with the manager of the bill. I will be 
happy to either yield further, or whatever it requires, to allow the 
Senator from Delaware to get a question in here.
  Mr. ROTH. Madam President, I say to my distinguished friend and 
colleague, if he will yield without his losing the floor, it does seem 
in a very real way to me that you are comparing apples and oranges. The 
reason I say that is that in the case of a mandate being imposed on the 
public sector, then it is the rule or the general requirement of this 
legislation that funds be provided to finance it.
  On the other hand, in the case of the private sector, while they are 
asking that an estimate be made, if there is no estimate, there is no 
requirement that funds be provided. So there is a very real difference 
between the public sector and the private sector.
  I do not think there is anything being said that says the 
Congressional----
  Mr. LEVIN. If my friend will yield----
  Mr. ROTH. If I may finish. What we are saying is that in the case of 
a mandate on the public sector, it is the general rule that either 
funds be made available to finance it, or a waiver be obtained. So 
there is a very real difference in the policy between the two 
situations.
  But I do not think anything is being said that the Congressional 
Budget Office cannot come back and say: We cannot make an estimate. But 
if they come back and say they cannot make an estimate, and it is a 
mandate on the public sector, then I, as author of that legislation or 
that amendment, either have to clarify the amendment so an estimate can 
be made, or I have to make sure that funds are provided. Or the third 
option is, of course, to get a waiver.
  So it seems to me we are hanging up on whether or not the CBO, in the 
one case, can say it cannot make an estimate. If it cannot make an 
estimate, then we have those three options. Otherwise, we cannot move 
ahead. In the case of the private sector, we can still move ahead 
because the legislation does not require funding.
  Mr. LEVIN. Madam President, the point the chairman makes, it seems to 
me, cuts exactly the opposite way. Since an appropriation is hanging on 
the estimate when it comes to the intergovernmental money, it seems to 
me that is more of a reason that estimate should be accurate.
   [[Page S982]] We should not force the CBO to make wild guesstimates 
in order to comply with the requirement. They have told us over and 
over again that there are times when they cannot make estimates. But 
this bill says, ``Tough.'' That is what you are basically telling the 
CBO when it comes to the intergovernmental estimate: Make it anyway.
  Mr. ROTH. If the Senator will yield.
  Mr. LEVIN. Yes, I yield to the Senator.
  Mr. ROTH. What I am saying is, if the Congressional Budget Office--in 
either situation, whether it involves the private or public sector--can 
make the statement that it cannot make an accurate estimate----
  Mr. LEVIN. I beg to differ with the chairman, because the bill 
explicitly says----
  Mr. ROTH. Where does it forbid CBO, in the case of the public sector, 
from coming back and advising the author or authorizing committee that 
it cannot make an estimate? What this legislation----
  Mr. LEVIN. Here is where it does it, if I may tell you.
  Mr. ROTH. I will make one further statement, and then yield back to 
the Senator who has the floor.
  What we are saying in that situation is that, as a general rule, 
whoever is authorizing the legislation should clarify it so that an 
estimate can be made. What we are really trying to provide and really 
require is a reasonable estimate so that when Congress acts, it knows 
what it is acting on. That is the whole intent, as I understand this 
legislation.
  Mr. LEVIN. Madam President, it is a very good intent. We have a 
current law which says exactly the same thing. The Budget Act now 
requires the Congressional Budget Office to make the estimate, where 
practicable. The chairman, my friend from Delaware, asks, ``Where does 
this bill say that they have to make an estimate in the 
intergovernmental sector?''
  The answer is what it does is it has the explicit language relative 
to the private sector that:

       If the Director determines it is not feasible to make a 
     reasonable estimate that would be required, the Director 
     shall not make the estimate but shall report in the statement 
     that the reasonable estimate cannot be made, and shall 
     include the reasons therefore.

  Mr. ROTH. Will the Senator yield for a question?
  Mr. LEVIN. If I may read from the committee report of the 
Governmental Affairs Committee on this point.
  It says:

       If the Director determines that it is not feasible for him 
     to make a reasonable estimate that would be required with 
     respect to Federal private-sector mandates, the Director 
     shall not make the estimate but shall report in the statement 
     that the reasonable estimate cannot be reasonably made.

  And then the committee report goes on to say this:

       No corresponding section applies for Federal 
     intergovernmental mandates.

  That is very clear. We allow them to be honest when it comes to the 
private sector, yet do not permit them to be honest when it comes to 
the intergovernmental sector. It says they shall estimate. It does not 
have the possibility that they cannot make an estimate in the 
intergovernmental sector the way it does to the private sector.
  Mr. ROTH. If the Senator will yield, the point I was trying to make 
is that nowhere, as far as I am aware, does the legislation forbid 
expressly the CBO from saying that it cannot make an estimate.
  Mr. LEVIN. Why not allow it to do so, to say that?
  Mr. ROTH. The important fact is what flows from that determination. 
The present language permits, in my judgment, CBO to say exactly that.
  Mr. LEVIN. May I then ask the chairman why do we not explicitly say 
that?
  Mr. ROTH. One reason is that it is difficult. You cannot fund a 
mandate for which there is no estimate. So what we are trying to----
  Mr. LEVIN. The point of order would lie.
  Mr. ROTH. So we are trying to require the authors of the legislation 
to go back and spell out the legislation in such a manner that an 
estimate indeed can be made.
  Mr. LEVIN. Which is a good goal. But if the author of the legislation 
attempts to obtain that estimate, and it is impossible for the CBO to 
make it, even if there is a diligent request, why not allow the 
Director to be honest? Why force the Director to make an estimate which 
is absolutely a wild, out-of-the-blue estimate, just so he can comply 
with the law? Is that helpful to us in terms of our legislative 
process?
  Do we really know more about the cost of intergovernmental mandates 
when a Director of the CBO, faced with this kind of a requirement that 
he estimate the specific amount of a mandate, throws up his or her 
hands and says, ``I cannot do it, and if I have to do it--and that is 
what the law says when it comes to intergovernmental mandates--I am 
going to say it is from $1 million to $1 billion; that is the best I 
can do''; is that really helpful to us in terms of understanding the 
impact of mandates?
  I do not think it is helpful. I think we ought to be honest and 
acknowledge that there will be occasions when the Director of the CBO 
cannot estimate. The point of order would still lie if we want to keep 
the point of order in this area, because there is no estimate. But at 
least you would have had the statement as to why there is no estimate.
  Mr. KEMPTHORNE. If the Senator will yield, I think that may be the 
crux of this. When it is a public-sector mandate, we are saying that we 
should pay for that.
  Mr. LEVIN. Unless it is waived.
  Mr. KEMPTHORNE. Unless it is waived. On the private sector, we say we 
will not be paying for that, but we ought to know the cost and impact 
up front.
  With the private sector, if the Congressional Budget Office comes 
back and says, ``We just cannot make an estimate,'' then no point of 
order can lie. The Chair will not rule. They have no alternative. It 
does not lie, because the CBO has said there is no estimate, and so 
there can be no point of order.
  That is the difference with the public sector. The CBO may come back 
and, in their report of estimate, state, ``We have tried this method 
and we have tried that, and we have consulted with the public entities, 
our partners, and this is the conclusion: Our estimate is that we 
cannot come to some conclusive information.''
  But then we have a report. We have a report. We have not allowed a 
loophole that we are not going to deal with the issue of whether or not 
we should still fund it.
  It may cause us to rethink this because if in fact you have the 
Congressional Budget Office--and I underscore the term ``Budget'' in 
Congressional Budget Office--and they say, ``We don't know what this 
will cost; it may well be beyond $50 million,'' if we allow them the 
same language as in the private sector, then we are not going to deal 
with it.
  Mr. LEVIN. Why?
  Mr. KEMPTHORNE. We are just going to vote. There is no point of order 
because the Chair cannot rule that a point of order lies.
  Mr. LEVIN. May I ask my friend from Idaho why not? Why cannot the 
Chair rule that there is no estimate?
  Mr. KEMPTHORNE. Because there will be nothing upon which to base the 
decision. There would be nothing to base the decision upon.
  Mr. LEVIN. There is a failure of the amendment to have an estimate.
  Mr. KEMPTHORNE. But I say to the Senator, with the process as 
prescribed, you will have that report from CBO. You then, as the Chair 
of that committee, can use that and come down to this floor, and you 
can get a majority to vote to waive that. Because you now have a report 
from CBO saying, ``We do not know what it is going to cost. We do not 
know how to estimate this.''
  Mr. LEVIN. What is the amount going to be, then?
  Mr. KEMPTHORNE. That is what we are going to decide. The will of the 
Senate is going to determine that.
  Mr. LEVIN. The Senate has no basis. The CBO told us that they cannot 
make the estimate. You say they can be honest. You ought to say that in 
the bill, they can be honest. But you do not want to say that in the 
bill because then the point of order might be in effect.
  But then my question is, you say they can be honest and tell us they 
cannot make the estimate, but you do not want to put that in the bill 
the way we have for the private sector; then what is the amount of the 
estimate 
[[Page S983]] upon which the point of order will be based? What are we 
going to vote on?
  Mr. KEMPTHORNE. I say to the Senator, it might cause us to then 
rethink the mandate.
  But the Senator keeps going back, saying, let us be honest; let us be 
honest. S. 1 gives us this process to be honest. it is going to give us 
the best information possible.
  Mr. LEVIN. With one exception.
  Mr. KEMPTHORNE. By allowing the private sector process which is 
prescribed here, if you were to apply that to the public sector, then 
we will not come back for that sort of discussion because there is no 
basis from which to make that decision. The Chair cannot rule that a 
point of order exists. But, again, I say this with all sincerity, if 
the Congressional----
  Mr. LEVIN. Why would the Chair rule there is no estimate?
  Mr. KEMPTHORNE. If the Congressional Budget Office comes back and 
says, ``We have run the calculations on the estimate and our conclusion 
is we cannot give you a good number,'' what is wrong with that, to come 
back here with that information?
  Mr. LEVIN. I think that is exactly what they should say, but you do 
not allow for it. I am the one who says the bill should allow for it.
  Let me make sure there is no confusion as to who is saying what. I am 
the one who says that we ought to allow them to do precisely what the 
Senator from Idaho said they should be allowed to do.
  Mr. KEMPTHORNE. The difference, I say to the Senator, is he is saying 
the same language used in the private sector. If you do so, then there 
is no way the point of order can lie.
  Mr. LEVIN. Does the Senator from Idaho believe if they cannot make 
the estimate, that they should be allowed to tell us that?
  Mr. KEMPTHORNE. Of course they should.
  Mr. LEVIN. Should we so state in the bill?
  Mr. KEMPTHORNE. We do not want to provide it so that the CBO can make 
the determination that we do not come back here and deal with the point 
of order. That is what I am saying. I mean, there may be some way we 
can craft this.
  Mr. GLENN. Will the Senator yield?
  Mr. KEMPTHORNE. I am happy to yield.
  Mr. GLENN. It would seem to be going the route my colleague from 
Idaho wants to go on this, where you cannot say there is no cost, which 
seems to me preeminently sensible that you are going away from the $50 
million threshold, because on every single thing that comes before the 
Senate, the $50 million threshold would mean nothing. It means there is 
some expense, even if it is on a postage stamp. If they say they cannot 
estimate this, but you are going to bring it to the floor on a point of 
order, the $50 million threshold means nothing.
  We are now saying, in effect, that on every single bill, every single 
thing that comes before the Senate, even though we cannot make an 
estimate on it, that it is going to have a point of order and it is 
going to have the same treatment as everything else, and the $50 
million threshold, it seems to me, just went down the drain.
  I do not see what is wrong with doing exactly, by amendment, what the 
Senator from Michigan is doing. All he is saying is that where the 
authority is charged with making these estimates, they can say they 
cannot make it. And we have a letter here from them that says on 
occasion it is going to be extremely difficult, if not impossible, to 
make that kind of a judgment.
  If it is impossible, who are we to say you have to do it anyway? 
``You do what you say you don't have the staff, don't have the people, 
don't have the estimates to do on some of these 87,000 communities 
around the country.''
  Why would we tell them to do something that they say they cannot do, 
or the Budget Committee itself say, ``Well, if CBO cannot do it, we 
will,'' just to get a figure out there, when it would be an absolutely 
fictitious, false figure on which nobody could base any vote on the 
floor.
  It seems to me the way to go, which I thought you were about to agree 
to a moment ago, is with language that would say if the CBO cannot make 
an estimate, then they just say that. They say we cannot make an 
estimate and the bill would come to the floor and everybody would know 
that they cannot make an estimate. They would make their own judgment 
on the bills, just as we do now when they come to the floor without an 
estimate.
  But the point is, probably 95 or 98 percent of the bills that would 
come before us would in fact have an estimate hooked up with them, and 
we would have taken much better cognizance of the cost in advance, 
which is the purpose of this bill.
  I think we are all bogged down here on sort of a technicality. The 
purpose of this bill was really to say, we are going to force the 
Senate, where possible--and I underline that; where possible--to take 
account up front of what the cost of the bills are going to be and what 
the Federal mandates to the States are going to be, which we have never 
done before. And that will cover probably 95 or 98 percent of the bills 
that come before us.
  It would seem to me just sensible that when the Budget Committee says 
it cannot make an estimate, with the people and the expertise and 
experience they have had for the last 20 years, and they say, ``We 
can't do that,'' and we are, in effect, telling them, ``You have to do 
it; we are forcing you to do it, even though you cannot do it,'' what 
are they going to do?
  Well, they come up with some fictitious figure just to comply with 
what we have told them to do, and that figure will not mean anything 
because it will not be based on their best judgment. It will be based 
on what they somehow had to do when they told us they could not.
  I think it would be common sense to me to do exactly what the Senator 
from Michigan is saying: Permit them in law--no fudging around; no 
alternate message here or no unclear message to them--to say that if 
you cannot make a judgment, you cannot make a judgment. You tell us 
that, and then the Senate proceeds to work its will, as we do now when 
we have bills where we do not have an estimate.
  So it seems to me very fair to do that. I do not yet see the logic, 
with all due respect, of saying we are going to force them to say 
something that they tell us they cannot say. It just does not make any 
sense to me.
  Mr. KEMPTHORNE. If the Senator will yield, I really believe that--and 
the good Senator from Michigan keeps referencing the 87,000 
jurisdictions--they would be arguing what I am trying to say. Maybe I 
am not very eloquent in saying it.
  It is not in any stretch of the imagination to say that CBO is to 
come up with some number, no matter how fictitious it is. I am saying 
there is a process that says they are to do their best effort in coming 
up with that estimate. That is the report they will receive. But it 
does not stop there.
  Mr. GLENN. What If their estimate is zero?
  Mr. KEMPTHORNE. That is the report, I say to the Senator.
  Mr. GLENN. But they just say: We cannot say whether it is zero or $50 
billion. Then what do we do?
  Mr. KEMPTHORNE. Then I think we ought to rethink the mandate itself.
  Mr. LEVIN. That is a good argument on the floor.
  Mr. KEMPTHORNE. Exactly.
  Mr. LEVIN. The question is, should they be able to tell us they 
cannot make an estimate. The Senator from Idaho keeps saying sure, they 
ought to. A minute ago, he said a good-faith effort. The words ``good-
faith effort'' are not in the bill.
 The words ``good faith effort'' are not in the bill. It says they 
shall make an estimate in a specific amount, acknowledging in the 
private sector it may be impossible. They have told us in the public 
sector it may be impossible. They told us that over and over again for 
the last 12 years.

  Most of the time they can do it, by the way, and should do it. And 95 
or 98 percent of the time they can do it.
  The Senator from Idaho keeps saying if they cannot do it, they should 
tell Members they cannot do it. All I am saying is, great, let Members 
put that in the bill. If they cannot do it, they should tell Members 
they cannot do it. And it is up to Members whether we waive a point of 
order.
  Mr. KEMPTHORNE. Madam President, I agree with that but it is up to 
Members not CBO to certify by note that they cannot do it. So there is 
no 
[[Page S984]] point of order, there is no basis for the Chair.
  I think we may be caught in a bit of a technicality or semantics 
issue. I would be happy to sit down with the Senator and see if we 
cannot craft something here. Again, I am simply saying I do not want to 
see the Senate go with the same procedure as prescribed on the private 
sector because it will then allow the Senate to no longer deal with 
whether or not, as the Senator just said, we ought to come to the floor 
and seek a waiver. We would not be required to do that. I think we 
should when we are using the taxpayers' money in the million- and 
billion-dollar categories.
  Mr. LEVIN. Madam President, the Senator from Michigan simply said we 
should allow the CBO to state that they cannot make an estimate in the 
intergovernmental site, in the same way they are allowing Members to 
say that on the private sector.
  I did not say we should use the same procedure, but I say we allow 
them to be honest when it comes to the inability to estimate the cost 
of a private mandate. We should allow them to be honest when it comes 
to the cost of an intergovernmental mandate. That is all I am saying. 
It is an honesty amendment.
  By the way, it will allow the Senate to legislate a lot better. We 
will not be gaining useful information if we force someone to make an 
estimate which is impossible to make. We are not doing ourselves a 
favor legislatively. Believe me, we are not legislating in a 
knowledgeable way, which is one of the purposes of this bill, and I 
have to say I totally agree with, that we know, where feasible, the 
cost of these estimates to State and local governments. By the way, 
where it is not feasible to know it, that it is a pretty good argument 
for not imposing.
  There may be circumstances, by the way, where you still want to 
impose it. It may be the reasoning it is not feasible is it is 
dependent upon EPA estimates and there is no way, prior to a public 
hearing, prior to notice, prior to an administrative procedure, that 
EPA is going to whisper into the ear of the Budget Committee what their 
level of mercury will be 3 years in advance of their decision. So, 
there may be good reasons to just simply vote ``no" on the mandate 
because we cannot get an estimate.
  On the other hand, the majority may say, no, that would be 
unreasonable in this case to require and we do want to impose that 
mandate on local and State governments. We want all levels to reduce 
their level of mercury in incinerators, not just the local.
  Mr. FORD. Madam President, as I understand, the Senator from Michigan 
retains his right to the floor regardless of the colloquy here.
  The PRESIDING OFFICER. That is correct, the Senator from Michigan has 
unanimous consent.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I am not trying to control the floor here 
at all. I am trying to have a colloquy which will help to illuminate, 
hopefully, and I would be happy to ask unanimous consent that I be 
allowed to yield the floor to the Senator from Kentucky, or if there is 
objection to this process from any one of the colloquies, I am happy to 
yield the floor, period.
  Mr. GLENN. Madam President, reserving the right to object, the 
Senator wanted a couple of minutes, and I wanted to make another point 
on this before we leave this.
  Mr. FORD. Madam President, I will be happy to yield to the Senator.
  Mr. GLENN. Madam President, go ahead and we will come back.
  Mr. FORD. Madam President, the thing that disturbs me here, and I 
think it is a legitimate disturbance, that those in the Senate that 
would like to help business, those that would like to see that business 
gets a fair shake, I think applying the laws to the Senate, that we 
apply to our constituents, was something that was very significant.
  Now in this language we are saying that we can stick it to business 
out there as hard as we want to because we cannot get an estimate. But 
to reverse that and say to the intergovernmental agencies, the 
communities, the counties, and the States that they are going to be 
exempt. So we are coming down as a business-oriented climate, I hope, 
and we are saying that we are going to stick it to business, but we 
will let Government, intergovernmental agencies, cities, counties, 
States, et cetera, I just think that this is wrong.
  If it is fair for Members to say that business--the regulations, et 
cetera, will be imposed on business, but not imposed upon public 
operations, then we have a real problem. It is my judgment, if I was 
business, I would be up here trying to defeat this bill because then I 
would not be allowed to compete because the regulations and fees, or 
whatever, to be imposed upon business, would be excluded from the 
public sector.
  Therefore, we are in competition with incinerators, and Lord, do we 
have problems out there trying to find disposal sites. It would just be 
horrendous in my opinion.
  Hospitals. I see hospitals now trying to make it work where they have 
a private hospital and a public hospital trying to come together on 
some sort of HMO and it makes it difficult. So, in that category we 
would apply rules to the private hospital that we would not apply to 
the public hospital and, therefore, they would not be able to come 
together in an ability to cover communities with health care.
  Schools. What are we going to do to asbestos and all its removal in 
private schools? And the cost is over $50 million, so therefore we 
exclude public schools.
  I think it is time that we all sit down and rethink this. When people 
say we are trying to filibuster this, we are not. I am not. I am for 
the bill. I am for the bill that says we should not put in unfunded 
mandates. I introduced a bill 8 years ago, 6 years ago. The Senator 
from Ohio and I have been on there for a long time. Got two cosponsors 
first time I introduced this legislation. And $50 million was a 
threshold then. Still is the threshold.
  So I am not against this legislation. But we have just gone so far, 
so far and attempted to jam it down our throat here, that some have 
just said, ``No, let's wait a minute.''
  I think the public has benefited, particularly business has 
benefited, by the debate that has developed here. Now this, in my 
opinion, is what the Senate is all about: The right to debate. Now that 
we have had the right to debate, even though we are trying to be 
painted into a different position here, different image, I think this 
debate has been very successful and very useful, particularly as it 
applies to the business community.
  So I want people who are saying this is a filibuster, it is not. Want 
to file cloture? Members can file cloture. Thirty-six amendments are 
floating out there in various and sundry types, on both sides of the 
aisle.
  So we have, I think, played the role that our forefathers expected of 
the Senate when we are now questioning the aspects of this particular 
piece of legislation. So, it is not a filibuster. Not a filibuster in 
any stretch of the imagination. But it sure is, in my opinion, 
developing into something we better take a second look at because it 
has become so broad.
  So I thank the Chair. I thank my friend from Michigan. I hope there 
will be a way to accommodate each side here so that the public and 
private sectors of our economy, both will be treated the same. Right 
now they are not.
  If we are going to help business, we better sit down and try to help 
it out so business will not be placed at a disadvantage rather than the 
public being placed at an advantage. I thank the Chair.
  The PRESIDING OFFICER. The Senator from Michigan has the floor.
  Mr. LEVIN. Madam President, if I could just briefly, to my friend 
from Ohio, thank the Senator from Kentucky, my good friend, for 
focusing on a very important fundamental issue, which is whether or not 
we want to send a message, create a presumption, however we want to 
phrase it, that we are going to put the private sector at a competitive 
disadvantage in those areas where there is a lot of competition.
 And there are a lot of those areas. In the environmental area, we have 
gotten letters, by the way, from the environmental disposal community--
I think three or four associations-- strongly opposing what we are 
doing 
[[Page S985]] here because it could put them at a competitive 
disadvantage.
  So there is some real concern in the private sector, or at least 
parts of the private sector that compete with the public sector, about 
either the assumption or the presumption that we will be funding their 
competitors while we are not funding them.
  And so Senator Lieberman and I, and some others, will be offering 
some amendments later on in this debate to try to address that very 
significant point that the Senator from Kentucky has made.
  Madam President, I am going to yield the floor in just 1 minute. I 
would just like to, before I yield the floor--and I have many more 
questions that I would like to pursue with the managers of the bill as 
to the way in which this process works, but I understand that they wish 
to make a unanimous-consent request, and I do not want to totally just 
dominate here. I want to try to clarify this process because it is very 
important what we are about to undertake.
  My question of the manager of the bill, the Senator from Idaho, is 
this: The first question I asked had to do with when was that mandate 
effective. What is the effective date of that mandate in my 
hypothetical? I am wondering whether or not we can have that answer 
yet.
  Mr. GLENN. Might I respond to that first? I did not get in that 
discussion before. If I might give my view on that, it seems to me you 
do this a couple of ways. The committee should have some idea of how 
long it is going to take for a State or local community to get ready 
for whatever the mandate is. In other words, if it is a water system, a 
sewer system or whatever it is that we are dealing with, they would 
have an idea of how long it is going to take in advance of the 
requirement date, such as the Senator puts down here, the year 2005.
  If there was not a time put in, it would be my opinion that you would 
make an estimate of how many years it would take them to comply, and 
our sharing of the cost of that would start at whatever that time is. 
In other words, if the time limit that the Senator used in his example 
of the year 2005, if it was going to take 3 years in advance of that, 
the Federal funding portion of this, or whatever we worked out on that, 
would take the 3 years or 4 years or whatever the estimate was that 
would help them comply with that, or it would be worked out with the 
States. You could not wait until the mandate is to go into effect, in 
the year 2005 in his example, you could not wait until the year 2004\1/
2\ and then say, ``OK, we are now going to help a little bit because 
their expenditures, if they are going to comply with that mandate, have 
to be made many times years in advance to allow them to comply.''
  Mr. LEVIN. That is the reason, if my friend will yield, the reason I 
requested this information is exactly that. If the law or the bill 
states that after October 1, 2005, emissions of mercury at an unsafe 
level will be permitted and delegates the EPA to make the determination 
of what level is unsafe to human health, my question is: Now you are 
CBO. Is there any way of knowing what is the first year that any local 
government will modify its incinerator? Some local governments may 
start in the year 1998, 2000, 2001. Does it just take a wild stab in 
the dark as to how many incinerators that are publicly owned will be 
modified in each of the 5 years up to 2005? How can it possibly make 
that estimate?
  And if--if--the managers of this bill are saying, in that case, the 
effective date of that mandate is before October 1, 2005, there better 
be a definition in this bill--there is not now--as to how you arrive at 
an effective date. It just simply says ``the effective date of the 
mandate.'' I think anybody reading that mandate that requires 
reductions of dangerous levels of mercury from incinerator emissions 
after October 1, 2005, would say the effective date of that is October 
1, 2005.
  The Senator from Ohio very correctly points out that a lot of the 
expenditures would have to be made in the years up to then. Absolutely. 
But we are triggering a point of order. We are triggering a required 
appropriation in order to avoid a very serious result from occurring.
  The Appropriations Committees in each year, up to 2005--if my friend 
from Ohio is correct, which I think he is--would have to appropriate 
money to local governments. They have to be told how much to 
appropriate and they have to be told that 10 years in advance. This 
estimate of costs to State and local governments must be made in the 
authorization bill now. Someone has to figure out what is the effective 
date. This is not just some casual report. This triggers a point of 
order and a mandatory appropriation downstream in specific amounts, 
some of which are, again, impossible to estimate. But that is the 
earlier debate we had, the earlier discussion.
  The question here is: If we are going to say the effective date is 
earlier than October 1, 2005, which is the first date that they must 
comply with a new mandate, if the effective date is going to be earlier 
than that, we better define ``effective date'' in this bill, because 
there is a lot that hangs on this. There is a point of order and there 
are appropriations downstream in specific amounts which must meet those 
estimates if certain things are going to follow.
  So, again, we are not just talking about reports here. We are talking 
about points of order and specific appropriations that are going to be 
dependent on when this mandate is effective.
  I thank the managers of the bill and, again, they have requested that 
I yield so that they can make a unanimous-consent request, and I am 
happy to yield the floor, but I do hope that at some point after their 
request, I will be able to again seek or obtain recognition so we can 
pick up our colloquy at that point.
  I thank the Chair, and I yield the floor.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER (Mr. Thompson). The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I appreciate the Senator from 
Michigan. It is very apparent that his background in local government 
has helped him to understand. I think we were trying to communicate 
together. I think there may be a way that we can resolve this, and it 
may be something other than what he is recommending and may be 
something other than what I was recommending. I think we may be able to 
resolve this.
  Mr. President, I am going to put in a quorum call just for the 
purpose of notifying a Senator who may have an interest in what will be 
a unanimous-consent request that I will make. I ask unanimous-consent 
that during the quorum call, I will have the right to retain the floor 
so that when we lift the quorum call, I will again have the floor.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. KEMPTHORNE. Therefore, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded and that I be allowed to speak as if 
in morning business.
  The PRESIDING OFFICER. Is there objection?
  Mr. KEMPTHORNE. Mr. President, reserving the right to object.
  Ms. MIKULSKI. I am sorry, I cannot see the Senator.
  Mr. KEMPTHORNE. I certainly have no reason to not allow the Senator 
from Maryland to proceed.
  But, again based on my earlier unanimous consent, I would again ask 
that upon completion of her remarks that I would have the floor?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Maryland?
  Ms. MIKULSKI. Mr. President, knowing there is important legislative 
work to be done on the issue of unfunded mandates, I will not take 
unduly the time of the U.S. Senate. However, I do wish to speak on two 
items, one, an unsung hero from Maryland who has just passed away and 
the other on the issue of national service.

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