[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.
____________________