[Congressional Record Volume 141, Number 10 (Wednesday, January 18, 1995)]
[Senate]
[Pages S1028-S1064]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
UNFUNDED MANDATE REFORM ACT
Amendment No. 139 to Amendment No. 31
(Purpose: To prevent the adoption of certain national history
standards)
Mr. DOLE. Mr. President, I send a second-degree amendment to the
desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from Kansas [Mr. Dole] proposes an amendment
numbered 139 to amendment No. 31.
[[Page S1029]] Mr. DOLE. Mr. President, I ask unanimous consent that
the reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike all after ``SEC.'' and add the following:
. NATIONAL HISTORY STANDARDS.
(a) In General.--Notwithstanding any other provision of
law, the National Education Goals Panel shall disapprove, and
the National Education Standards and Improvement Council
shall not certify, any voluntary national content standards,
voluntary national student performance standards, and
criteria for the certification of such content and student
performance standards, regarding the subject of history, that
have been developed prior to February 1, 1995.
(b) Prohibition.--No Federal funds shall be awarded to, or
expended by, the National Center for History in the Schools,
after the date of enactment of this Act, for the development
of the voluntary national content standards, the voluntary
national student performance standards, and the criteria for
the certification of such content and student performance
standards, regarding the subject of history.
(c) Sense of the Senate.--It is the sense of the Senate
that--
(1) the voluntary national content standards, the voluntary
national student performance standards, and the criteria for
the certification of such content and student performance
standards, regarding the subject of history, that are
established under title II of the Goals 2000: Educate America
Act should not be based on standards developed by the
National Center for History in the Schools; and
(2) if the Department of Education, the National Endowment
for the Humanities, or any other Federal agency provides
funds for the development of the standards and criteria
described in paragraph (1), the recipient of such funds
should have a decent respect for United States history's
roots in western civilization.
Mr. DOLE. Mr. President, I ask for the yeas and nays on the
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Is there further debate?
Mr. GLENN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll to ascertain the
presence of a quorum.
The legislative clerk proceeded to call the roll.
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. JEFFORDS. Mr. President, I would like to address the pending
amendment.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. JEFFORDS. Mr. President, if one is not aware of the history of
this issue over the past decade or so, this amendment might seem like
one that we ought to concentrate on and seriously consider.
It brings up the issue of educational standards, but it takes our
attention away from the basic reasons for the development of the Goals
2000.
When these goals were developed by the Governors in 1989, it came as
a result of a 1983 report called ``A Nation at Risk.''
That report was released by the Secretary of Education at the time,
Ted Bell, who served as Secretary of Education during the Reagan
administration. It described serious deficiencies in our educational
system. Those results have been verified by many studies including the
somewhat recent Work Force 2000 report which pointed out very
importantly and very critically that this Nation is not presently
prepared to compete in the international market and will be less so in
the future.
Here are some of the problems that created the demand for Goals 2000.
Too many of our people right now do not even graduate from high school.
But much more seriously is that only half of those who presently
graduate have what is considered an acceptable basic education. Even
more troubling is the fact that two-thirds of that half are
functionally illiterate to one degree or another. They do not have the
basic skills necessary to handle an entry level job. This means that
our school system turns out millions of young people each year needing
remedial education before they can effectively help us compete in the
world economy.
The purpose of ``A Nation at Risk'' was to raise awareness that our
Nation was facing a serious crisis. The standard of living had been
slipping for the past decade or more and would continue to slip if we
did not raise the quality of our education.
In the late 1980's, the business community was concerned that
educational reform was not being implemented, even after President Bush
had convened the national education summit and the Nation's Governors
had created the goals which, with the input of Congress, are now
referred to as Goals 2000.
The need for progress on this issue was important to the business
community. I remember very well the first meeting I had in my office as
a new Senator and as member of the Education Subcommittee with a group
of this Nation's top CEO's whose firms were involved in international
ventures. I expected that they might come to me and say, ``We have to
do something about capital gains.''
They did not. They said that we must fully fund Head Start. If the
United States did not make sure that everyone had the advantage of
preschool training, early childhood education, and other compensatory
programs, we would not produce the kind of high school graduates who
would be able to compete internationally.
Our educational failures impact the business community, especially in
those areas of graduate education which are so critical to our
competitive edge in high-technology fields. Right now, about 40 percent
of the slots for graduate schools in critical areas of science,
engineering, and mathematics go to foreign students because they are
more competitive for those slots.
That used to be fine, and I remember in my own State we had many
foreign students who went to graduate school and ultimately worked for
IBM. These days, unfortunately, foreign graduate students are not
staying here. They are not returning the advantage of their skills and
knowledge to our industries. They are all going home. In other words,
we are sending about 40 percent of graduates from our schools, which
are the best in the world, to work for our competitors.
I wished to raise this specter because this is the kind of problem
which national standards should address. When we passed Goals 2000, we
set forth a set of voluntary national goals and standards. In addition
to the original goals proposed by President Bush and the 50 Governors,
we expanded upon the goal for math and science competitiveness and
added such subjects as history and arts.
What we are talking about today is the beginning of a process of
developing standards which are necessary for our ability to compete in
the international economy. I would hate to think we will begin debating
subjects which are important but unrelated to the more important issue
of competitiveness and thereby disparage our national and worldwide
standards.
Recently, members of the business community spoke about job training
before the Labor Committee and said that we must enforce worldwide
educational standards for our people can become qualified for the work
force of the future. If people do not understand the requirements, they
will continue presuming that the standards which we have been
utilizing, the ones which we feel are an acceptable education, are
quite all right.
People fail to realize that students in Taiwan graduate 2 years ahead
of our students in science and math. In addition, studies show that not
only are we removed from the list of top nations in science and math
achievement, but that we are at the bottom of the heap.
My point is that we must concentrate on why the Goals 2000 bill was
developed. It was deemed necessary to improve the standard of living of
the Nation: To improve our standards and our competitiveness. While it
is important for us to stay informed about recommendations for
important subjects such as history, I am concerned that we will begin
to forget why we are here, and that is to save the Nation.
I will introduce a second-degree amendment at an appropriate time
which will address the concern of my good friend, the Senator from
Washington, regarding the development of certain standards at the UCLA
Center for History in Schools, those standards
[[Page S1030]] which have raised considerable controversy. But we must
remember that those standards have not been adopted by anyone, and they
are not in a form to be adopted. In fact, the panel which would approve
them has not even been named yet. So we are prematurely criticizing
something which is not even ready to be adopted.
But more importantly, the amendment requires that anything
meritorious or relevant or acceptable that is in those standards should
not be used. Now, I am not sure whether that means the acceptable
elements could be proposed and later approved, or not. The amendment
does not say. It simply states that the standards cannot be used and
that no more money can go to them.
Therefore my amendment will leave in the final paragraph of the
amendment of the Senator from Washington, which states the concern
about how we adopt the history standards, but will remove that part
which states that we should simply throw away everything that has been
done in this area and prohibits the information from being used.
Out of a very substantial number of examples in the history
standards, only a very few have provoked great controversy. Therefore,
I will speak again later, when I offer my amendment. But I just want
everyone to realize that the critical goal is to have an educational
system second to none which will keep the United States competitive in
the next century by providing the necessary skilled work force.
I will also mention the cost of doing nothing and the cost of trying
to do away with these standards. Right now, over $25 billion each year
are spent by our businesses on remedial education because of the
failures of our school system. In addition, we have about a half a
trillion dollars loss in the economy due to illiteracy, imprisonment,
and the many other social ills that result from educational shortfalls.
This is an extremely important issue, and I hope that we will remain
focused on the primary issue of developing a more competitive nation
for the future.
Mr. President, I must oppose the amendment offered by my colleague
from Washington. The amendment, which has not been subject to any
hearings or review by the committee of jurisdiction, prohibits the
National Education Goals Panel and the National Education Standards and
Improvement Council from certifying any voluntary national content
standards in the subject of history.
As my colleagues may recall, under the Bush administration grants
were awarded to independent agencies, groups, and institutions of
higher education to develop worldclass standards in all the major
subject areas.
The history standards were developed by the UCLA Center for History
in Schools with the contribution of hundreds of individual teachers,
scholars and historians. The standards, which have just recently been
published, have raised concern among some readers. Criticism has
focused not on the standards themselves but upon the examples of
activities for students in each grade level. Of the thousands of
examples, not more than 25 were considered controversial. However, upon
receipt of public input and criticism the Center for History in Schools
is reviewing and altering its work. This, in fact is, and should be,
the appropriate process and primary purpose of public commentary.
But, I am not here to defend the specific content of these
standards--that is best left to teachers, educators, and parents.
Instead, I am concerned that this amendment has much broader
implications.
At issue is not so much the specific substance of these standards.
Indeed, the standards have neither been endorsed by any Federal body
nor, for that matter, even been finalized. Rather, the issue is whether
or not we have in place a process for developing world class standards.
I cannot overstate the importance of this matter. Countless reports
have outlined that our country is falling behind in international test
comparisons because our children have not learned the necessary skills
in order to compete successfully.
A recent survey of Fortune 500 companies showed that 58 percent
complained of the difficulty of finding employees with basic skills.
The chief executive officer of Pacific Telesis reported: Only 4 out of
every 10 candidates for entry-level jobs at Pacific Telesis are able to
pass our entry exam, which are based on a seventh-grade level.
It is no longer enough for Vermont to compare itself to the national
average. Comparing one State with another is like the local football
team believing itself to be a champion of national stature because it
beat the cross town rival. No, we must compare ourselves with our real
competitors--the other nations of this global marketplace. To date, it
appears that they are quickly outpacing us in many pivotal areas.
I have had meetings upon meetings with the chairmen and CEO's of
major U.S. corporations to urge me to support the development of high
academic standards. Why? Because the status quo in our schools has
failed. Too many of our graduates finish school without knowing the
three R's, much less more rigorous content standards. For our country
to remain competitive, it is essential that our schools prepare our
future work force for the demands of the 21st century. Unfortunately,
until we present our students with challenging content standards that
goal will not be realized.
Instead, estimates indicate that American businesses may have to
spend up to $25 billion each year just for remedial elementary math and
reading instruction for workers before they can train them to handle
modern equipment. Not only does this drain critical funds from our
corporations but it dramatically affects our ability to compete in the
global marketplace.
For the past decade the average wage has gone down. The standard of
living is slipping and wealth is accumulating only at the top.
Until we are able to prepare our children for the future we will have
failed ourselves, the next generation and this country. The first step
to success is establishing strong academic standards so that our
children leave school ready for the work force or for postsecondary
education. Remedial education should not be the main function of our
institutions of higher education or our businesses and corporations. By
preparing our students while they are in school, we will reduce the
need for catchup courses so many of our graduates now have to take.
We have a process in place to get our children ready for the 21st
century. That process includes reforming our school and creating high
benchmarks for students. That process is done through the National
Council on Education Standards and Improvement. NESIC will be a 19-
member council composed of professional educators, representatives of
business, industry, higher education, and members of the public. The
council is authorized to certify voluntary national education standards
and pass their recommendations to the goals panel for final approval.
The role of the council is to certify that the standards developed in
each subject area are credible, rigorous and have been developed
through a broad-based process.
NESIC provides a mechanism for ensuring that standards remain
national rather than Federal. If this duty was not being performed by
such a council, the responsibility for certifying national voluntary
standards would fall squarely upon the shoulders of the Secretary of
Education--which would positively result in greater Federal
involvement.
This body is a separate entity created to oversee the certification
of voluntary national standards. It has absolutely no oversight
authority over States. In other words, States are not required to agree
with the voluntary national standards, they are not required to accept
or incorporate any portion of the national standards or even
acknowledge existence of standards.
Yet such a national council is essential to States and local schools
to assist them in weeding out and reviewing voluntary standards.
Without such an entity, each State will have to undertake that review
by itself. To do that 50 times over simply does not make sense.
Clearly, the recommendations of the council are not binding on States.
The council's certification process is simply a Good Housekeeping seal
of approval to assist States in determining which standards are
rigorous and competitive.
For us to step in and derail this process makes no good sense. By
passing
[[Page S1031]] this amendment and legislating a Federal override of
NESIC's responsibility we not only jeopardize the whole independent
nature of NESIC, we also jeopardize the process of creating tough
academic standards. I don't think we have that luxury.
The PRESIDING OFFICER. The Senator from Kansas.
Mrs. KASSEBAUM. Mr. President, if I may enter into this debate for a
moment from a little different angle. I have enormous respect for the
Senator from Vermont, who has just spoken with great dedication to the
issue of education. He has devoted a great deal of time to the issue,
both when he was in the other body as a Member of Congress and since he
has been in the Senate and is now chairman of the Education
Subcommittee of the Labor Committee.
I also can understand where the Senator from Washington is coming
from in his concerns about the model national history standards which
have been developed with Federal funds. However, as the Senator from
Vermont has pointed out, they have not been adopted or certified as
national standards yet.
There has been a lot of controversy about these standards as they
have been proposed--controversy which, I may say, could have been
anticipated. I was troubled when we first started down the path of
providing Federal funding for the development of national standards. I
would like to note that standards in various subject areas have been
developed by professionals in the field, not by Federal employees as
some may think. However, where Federal moneys are involved, there is
often misunderstanding about the nature of the Government's
involvement.
I am sure that developing these standards was very difficult for
these professionals. It is far easier to develop standards, say in the
field of mathematics or science, because there is more preciseness in
both of those fields. When you get to history, however, so much
revolves around a teacher's interpretation of the material that they
may have in front of them. So I think when you get into particular
areas of study like history, that it becomes much more difficult to
develop standards on which there is going to be agreement. Whether it
is with the particular standards we are discussing now or a totally
different set of standards, I think you would find just as many people
with concerns about them.
Although these are voluntary standards, as has been repeatedly
emphasized whenever we have had these debates, this is a point which
often gets lost. One reason I opposed the Goals 2000 legislation which
was enacted last year is that it took Federal activities in this area
yet another step further by including an authorization for a national
council to review and endorse the national standards.
There is certainly a difference between voluntary national standards
and mandatory Federal standards--but this is a distinction which is
generally lost when such standards are put forward, particularly when
they are likely to come before a group such as the national council
which is charged with reviewing them. As one who believes strongly that
the strength of our education system lies in its local base and
community commitment, I have not felt it wise to expand Federal
involvement into areas traditionally handled by States and localities.
I will support the Gorton amendment due to my concern about Federal
involvement in national standards, even voluntary ones. At the same
time, I believe the real issue is far broader than the current
controversy over the history standards. Prohibiting a federally
authorized council from certifying a particular set of voluntary
standards is not the real answer. The real problem is that we have
established in legislation such a group--the National Education
Standards and Improvement Council, or NESIC--in the first place.
In the near future, I will be introducing legislation to repeal
NESIC. My legislation would get the Federal Government out of the loop
in an area which I believe is best handled by States and localities.
Many of our States are already developing standards that the teachers
and educators in the field of history feel is important for the schools
in their States. But those States do not need to have a Federal seal of
approval for those standards, voluntary or not. That is why I believe
we may be missing the heart of this debate.
Nevertheless, I think the Senator from Washington has addressed a
real concern regarding the model national history standards that have
been developed with Federal funds.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, I wish to speak against the Gorton
amendment. I think the Gorton amendment fails to recognize the immense
amount of work that has gone into trying to put this country on a road
to having and pursuing higher national standards, higher standards in
education throughout the country. This is work that has primarily been
done by the Governors of this country. I will point out that it began
in Charlottesville, when President Bush was there with our 50 Governors
some 5 years ago.
Today, the National Education Goals Panel is made up primarily of
Governors. There are eight Governors on this panel, there are two
administration representatives, and there are four representatives from
Congress. But clearly the Governors are those who set up the National
Education Goals Panel. They are the ones who have led the way for this
country to pursue national education goals and standards.
The Governors who currently serve on that are an extremely
distinguished group: Governor Romer, Governor Bayh, Governor Fordice of
Mississippi, Governor Hunt, Governor Engler, Governor Carlson, Governor
Edgar, and Governor Whitman of New Jersey. They are a very
distinguished group of Governors.
The amendment of Senator Gorton, in my view, would be an insult, if
we were to pass this amendment, given the current state of
deliberations by the National Governors and by the National Education
Goals Panel on national standards. Essentially, this amendment says the
National Education Goals Panel shall disapprove some proposed standards
which have not even been presented for consideration before the panel
as yet. It completely puts the Congress in the position of preempting
the National Education Goals Panel.
It further puts us in the business of preempting the National
Education Standards and Improvement Council, which has not even been
established. The members of that group, NESIC for short--that is the
acronym that has been applied to this National Education Standards and
Improvement Council--have not even been appointed. Yet, we are here
being asked to adopt legislation directing this unappointed panel not
to certify certain standards which have not yet been presented to them
since they are not in existence.
It strikes me that this is the height of arrogance on the part of
Congress, to be stepping into an area where we have not had the
leadership. Just to the contrary, the Governors have had the
leadership. And we are saying by this amendment, if we adopt it: Do not
take any action to approve standards. You, the Governors and the other
members of this panel, disapprove these proposed standards that have
not yet even been presented to you. And second, if and when we get a
National Education Standards and Improvement Council appointed, they
are also directed not to certify any standards along the lines that
have been proposed.
I certainly agree that there are major problems with the national
standards that were proposed on history. I do not think that is the
issue that is before us today. This whole business of getting standards
in history is something which was started by the former administration,
during the Bush administration. I recall the then Chair of the National
Endowment for Humanities, Lynne Cheney, let the contract at that time
to have these national standards developed. She has also, I would point
out, been the main spokesperson objecting to the standards that have
come back, or the proposed standards.
My reaction is that clearly she is right, that there are problems
with what has been proposed, and we need to change what has been
proposed or, on the contrary, we need to get some
[[Page S1032]] other standards adopted in the area of history before we
go ahead.
But we are not in a position in my opinion as a Congress to be
directing the National Education Goals Panel, made up primarily of
Governors in this country, directing them as to what action to take or
not to take on specific standards at this point.
The whole standards-setting process I believe has been a very
healthy, forward looking, progressive effort in this country, and it
has been bipartisan. It was bipartisan when it was started in the Bush
administration with the Governors. It has remained so since then.
I have the good fortune of serving on a council that was established
by the Congress to look at the whole issue of whether we should have
national standards. That council came up with a report which said the
high standards for student attainment are critical to enhancing
America's economic competitiveness, the quality of human capital, and
the knowledge of skills. The knowledge and skills of labor and
management helps determine a nation's ability to compete in the world
marketplace. International comparisons, however, consistently have
shown the academic performance of American students is below that of
students in many other developed countries. The standard setting
process was a reaction to our concern in this area, and it is a
reaction which the Governors took the lead in because of the primary
responsibility for education has always been at the State and local
level, and should remain there.
But we found in that council that I served on--this is a quotation
from the report they came out with:
In the absence of demanding content and performance
standards, the United States has gravitated toward having a
de facto minimal skills curriculum.
That is what the Governors were trying to deal with in the standard
setting process. We should not allow our concern about some specific
set of proposed standards which have not even been presented to the
National Education Goals Panel for approval yet but we should not allow
our concern about those specific standards to deflect us from the long-
term objective of having standards, and holding ourselves accountable
to reaching those standards. They are voluntary standards. They ought
to be voluntary standards. But still they are standards. They are
standards for which we believe certain benchmarks are appropriate. And
clearly I believe that the standard setting process is an extremely
important part of improving the American education system.
It would be a tragedy for us to step in before the first set of those
standards have been presented to the National Education Goals Panel for
approval and pass legislation directing how the National Education
Goals Panel and the Governors who make up the majority of that group,
are to dispose of standards.
So I hope very much that we will defeat the Gorton amendment. I know
Senator Jeffords has an alternative which I will plan to support and
speak for at that time. But I hope very much that the Congress does not
overreach and try through this amendment that has been presented by the
Senator from Washington to usurp the authority which I think has
rightfully been seen as resting with the Governors of this country.
I thank you, Mr. President. I yield the floor.
Mr. PELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. PELL. Mr. President, I rise in opposition to the amendment
offered by the Senator from Washington.
To my mind, this amendment is an unwarranted governmental intrusion
into what is basically a private effort. It also constitutes
micromanagement to a degree that is neither wise nor necessary.
First, the national standards that are being developed, whether in
history or any other discipline, are purely voluntary. This was made
clear in the Goals 2000 legislation and reinforced in the
reauthorization of the Elementary and Secondary Education Act.
Second, the voluntary standards do not have to be submitted to either
the National Education Standards and Improvement Council or the
National Goals Panel. That, too, is voluntary. If the organization that
developed the standards wants to submit them, they may do so at their
own volition. It is not required.
Third, certification is nothing more than a Good Housekeeping Seal of
Approval. It carries no weight in law, and imposes no requirements on
States or localities. They are free to develop their own standards, and
may use or not use the voluntary national standards as they wish.
Fourth, the history standards in question are proposed standards.
They have not been finalized. Quite to the contrary, representatives
from the National History Standards Project have met with critics and
have indicated their willingness to make changes in both the standards
and the instructional examples that accompany the standards. Their
commitment is to remove historical bias and to build a broad base of
consensus in support of the proposed standards.
Fifth, make no mistake about it, these proposed standards were not
developed in secret or by just a few individuals. They are the product
of over 2\1/2\ years of hard work. Literally hundreds of teachers,
historians, social studies supervisors, and parents were part of this
effort. Advice and counsel was both sought and received from more than
30 major educational, scholarly, and public interest organizations.
Mr. President, I strongly believe that we should not interfere with a
process that is still in play. We should not inject ourselves in a way
that might impede both the important work being done in this area and
the effort to develop a broad base of consensus. Accordingly, I would
urge my colleagues to oppose this amendment, and to support instead the
substitute to be offered by the Senator from Vermont.
I yield the floor.
Mr. LIEBERMAN addressed the Chair.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. Mr. President, I rise to support the amendment offered
by the Senator from Washington [Mr. Gorton]. In fact, I ask unanimous
consent at this point that I be added as an original cosponsor of the
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LIEBERMAN. I thank the Chair.
Mr. President, I support this amendment because it puts the Senate on
record opposing the national standards for U.S. and world history
which, while not endorsed by any Federal agency, were developed with
Federal tax dollars first issued in 1991. While not a Federal mandate
in that sense, they are voluntary, nonetheless, I rise to speak in
opposition to them because they carry the imprimatur of the Federal
Government, and have the capacity to broadly affect the course of
education and the teaching and understanding of history by succeeding
generations of our children, the American children.
Mr. President, I should make clear, as I believe the Senator from
Washington has made clear, that I support the idea of setting national
voluntary standards to upgrade our education and to give us something
to aim for. But I must say that the standards that were produced, the
national standards for U.S. and world history that are at the core of
what this amendment is about, were a terrific disappointment and may
undercut some of the fundamentals, the core values, the great
personalities and heroes of America and Western civilization and world
history. By doing so, we put our children at risk of not being fairly
and broadly educated.
While the hope of those involved at the time that these standards
were authorized, which goes back some years, was clearly to encourage
State and local educators to raise standards in the teaching of history
to elementary and secondary school students, the draft proposed is full
of the kind of valueless, all-points-of-view-are-equally-valid nonsense
that I thought we had left behind--and I certainly believe we should
leave behind--in the teaching of our children.
The history that many of us who are older learned in school obviously
had its failings. It was not as inclusive as it should have been in
many ways. But at least it provided core information about who we are
as a nation and how our world and our Nation have progressed over time.
Mr. President, we have a lot to be proud of in American history.
This
[[Page S1033]] great idea of America grew out of the Enlightenment and
was established--now more than 200 years ago--by a courageous,
principled, and patriotic group of Founders and Framers who were not
casual about what they were doing.
They were motivated by an idea, by a set of values, and it is part of
our responsibility as this generation of adults, let alone as this
generation of elected officials and national leaders, to convey that
sense of our history--about which we have so much to be proud--to our
children.
First, in the interest of truth, because the American idea is a
unique idea and has dramatically and positively affected the course of
world history since the founding of this country--not just the course
of world history in a macro sense, in a cosmic sense--it has positively
affected, in the most dramatic way, the course of the lives of millions
of Americans and millions of other people around the world who have
been influenced by the American idea and by American heroes. And we
ought not to let that be disparaged. We ought not to let that
uniqueness, that special American purpose, be lost in a kind of
``everything is equal, let us reach out and make up for the past
exclusions in our history'' set of standards.
So to me this is consequential. I guess the social scientists tell us
that our children should think well of themselves if we expect them to
do good things; that they have to have a good self-image. They mean
this in the most personal sense of how parents raise children, how
society gives children an impression of themselves. I say that in a
broader sense of citizenship, our country has a responsibility,
honestly and accurately conveying some of the blemishes as well as the
great beauty of our history, to give our children a sense of self-worth
as Americans. And part of that is respecting the great leaders in
America that have gone before.
Mr. President, these draft standards are, alternatively, so
overinclusive as to lose major events in American and world history,
major participants, leaders, heroes in American and world history, in a
tumble of information about everybody and everything. And then, on the
other hand, they are oddly underinclusive about important events,
people and concepts. Robert E. Lee, Thomas Edison, Albert Einstein,
Jonas Salk, and the Wright Brothers, just to name a few, appear nowhere
in these standards.
Thomas Edison, whose most memorable invention has become the very
symbol of a good idea--the light bulb--is not mentioned. Albert
Einstein, whose extraordinary contributions to our sense of the
physical universe, let alone beyond, who changed our understanding of
our existence in so many dramatic ways--not mentioned. The Wright
Brothers, whose courage and boldness and inventiveness, steadfastness--
with the development of airplanes, flight--has dramatically affected
the lives of each of us and of society--not even mentioned in these
standards.
In another way, in the world history standards, slavery is mentioned
briefly in reference to Greece. The only other discussion of slavery
concerns the transatlantic slave trade.
Slavery, to the world's shame, existed in many cultures over many
centuries, and those examples are not mentioned.
The Holocaust in Nazi Germany received significant attention, as it
should. But the death, persecution, and humiliation in a cultural
revolution in China go by with barely a whisper. There is nothing in
the cold war section of these standards, this experience that dominated
the lives of most of us in this Chamber from the end of the Second
World War to 1989, when the Berlin Wall collapsed. The section on the
cold war does not give the reader, the student, the teacher, the sense
that that conflict involved principles at all, involved ideals. It
describes it, in my opinion, solely as a contest for power. There is no
indication that we were fighting a battle for democracy--not just a
system, a way of government, but a way of government that has a
particular view of what humans are all about, and a particular view
that is rooted, I think, in the idea and the principle that people have
a Creator. We say it in our founding documents, ``that all men are
created equal, that they are endowed by their Creator with certain
inalienable Rights,'' not a casual accident of nature, but a conscious
act by a Creator. Democracy is on the one hand, and totalitarianism is
on the other, which denies all of that. The cold war is described
blandly and revealingly in one sentence as ``the swordplay of the
Soviet Union and the United States.'' Inadequate, to put it mildly;
insulting, to put it more honestly and directly.
We do not need sanitized history that only celebrates our triumphs,
Mr. President. But we also do not need to give our children a warped
and negative view of Western civilization, of American civilization, of
the accomplishments, the extraordinary accomplishments and
contributions of both.
I recognize that the Federal Government is not talking about forcing
these standards on anybody. These standards were always intended to be
voluntary, and I recognize that the standards we are talking about are
not final. They are in a draft form. But the standards, by virtue of
their being developed with Federal funds, have the unavoidable
imprimatur of the Federal Government. Ten thousand of these are
available throughout America. It is a very official-looking text. I,
for one, worry that some well-meaning official of a local school
district will get hold of it and think this is what we in Washington
have decided is what the teaching of American and world history ought
to be all about. In fact, I have been told that text book publishers
are waiting to see what happens next with these standards so they can
make their own plans as to whether to adopt the draft standards
wholesale. In fact, I have heard also that some school districts are
close to adopting them.
I think it is particularly appropriate that my colleague from
Washington has chosen this bill about mandates and Federal involvement
in our society for us to speak out, to make sure that no one
misunderstands these standards, to hope that teachers, parents, and
students will understand the ways in which some of us feel they are
deficient, and that, as the business of setting such standards goes
forward from here, they will be developed with a better sense of
balance and fairness and pride.
History is important. We learn from it. It tells us who we are, and
from our sense of who we are, we help determine who we will be by our
actions. The interest in these standards, in some sense, confirms the
importance of history. And what I am saying, and what I believe Senator
Gorton is saying, is that we should celebrate the vitality of that
interest in history by starting over to develop standards that more
fairly reflect the American experience, not to mention world history,
and to particularly give better and fairer attention to the positive
and optimistic accomplishments and nature of the American people.
I thank the Chair, and I congratulate my friend from Washington for
taking the initiative on this matter.
I yield the floor.
Mr. BINGAMAN addressed the Chair.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, let me just make one additional point. I
heard my good friend from Connecticut and my friend from Washington.
I think it is particularly ironic that this amendment is being
considered on the so-called Unfunded Mandate Reform Act of 1995. This
bill that is being considered before the Senate today, the bill that is
proposed to be amended, says in its preface:
To curb the practice of imposing unfunded Federal mandates
on State and local government; to strengthen the partnership
between the Federal Government and State and local and tribal
governments; to end the imposition, in the absence of full
consideration by Congress, of Federal mandates on State,
local and tribal governments.
Mr. President, we did try to defer to the States when we set up the
education goals panel in the legislation, the Goals 2000 legislation,
last year. We established that panel with eight Governors, four State
legislators. And those 12 who represent the States would be offset by
six representing the National Government, two from the administration
and four Members of Congress.
Now we have taken this 18-member panel, the National Education Goals
Panel, set them up and given them the responsibility to review
proposals that
[[Page S1034]] are made for national standards. And here in Senator
Gorton's amendment, we are proposing to step in before any standards
have been presented to them and to legislatively prohibit them from
adopting a set of as yet unproposed standards.
Now this is a Federal mandate, it is a mandate by this Senate, by
this Congress to that National Education Goals Panel, made up primarily
of State government representatives, and telling them what they shall
and shall not do.
I, quite frankly, think it is insulting to the Governors, who are
giving of their very valuable time to serve on this National Education
Goals Panel, for us to be rushing to the Senate floor and passing
legislation of this type before they have even been presented with
anything in the National Education Goals Panel.
I am one of the two Senators that serves on the National Education
Goals Panel. I represent the Democratic side. Senator Cochran
represents the Republican side. We have not had a meeting to discuss
these proposed standards. In fact, the proposed standards have not even
been put on the agenda to be discussed at future meetings, and yet the
Senate is considering going ahead and adopting an amendment by the
Senator from Washington which says, ``Notwithstanding any other
provision of law, the National Education Goals Panel shall disapprove''
these standards in whatever form they ever come to us.
Mr. President, I have no disagreement with my friend from Connecticut
about the substance of the proposed standards that have been developed
under the funding of the National Endowment for Humanities and the
contract that Lynne Cheney let when she was in that position. I agree
there are some serious problems there. But let us defer to that group
primarily representing States and allow them at least to do some of
their work before we step in and dictate the result. Particularly, let
us not dictate the result as an amendment to a bill which is designed
to end the imposition of Federal mandates on State, local and tribal
governments.
I think it is the height of irresponsibility for us to proceed to
adopt this amendment at this stage. I really do think those Governors
and State legislators who are serving on that National Education Goals
Panel deserve the chance to do the job which they are giving of their
valuable time to do before we step in and try to overrule them and
second-guess something which they well may decide not to do. I have no
reason to think they are less patriotic or less concerned about a
proper depiction of U.S. history than we here in the Senate are. And I
think we should give them a chance to do the right thing.
Mr. President, I yield the floor.
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, first, I should like to say with respect
to my friend and colleague, the Senator from Connecticut, that it is
always a pleasure to deal with him on the same side of an issue just as
it is very dangerous to disagree with him and attempt to prove a case.
But as I have listened to the case presented against this amendment
by three of my colleagues, one of my own party and two of the other, it
seems to me that they argue in an attempt to have it both ways. Each of
them was a strong supporter of Federal legislation, Goals 2000, which
was designed to come up with national standards for the teaching of
various subjects in our schools. Each of them, as far as I can tell,
approved of spending some $2 million of Federal taxpayer money to
finance a private study which resulted in these national standards.
But when it comes to our debating these highly controversial and I
firmly believe perverse and distorted standards for world and American
history, we are told we should butt out; we, the Congress of the United
States, should have nothing to say about national standards for the
teaching of American history. Or, in the alternative, the Senator from
New Mexico says it is too early because they have not been adopted yet.
Would his argument be different if this commission had in fact
adopted these standards? Well, of course not. His argument would be
even stronger that we should have nothing to do with this process. Far
better to express the views of Members of this body, and I hope of the
House of Representatives, on a matter which is of deep concern to many
of our citizens before some potential final action has been taken than
to wait until afterwards.
But, Mr. President, this volume does not look like a rough draft.
Nothing in this volume, for which we have paid $2 million, indicates
that it is only tentative, it is subject to huge revisions. This is a
set of standards which without regard to whether or not it is approved
by a national entity has already been distributed in some 10,000 copies
to educational administrators and interested people all across the
United States which already has behind it the force of being a national
project financed with national money.
I believe it more than appropriate that this technically nongermane
amendment should be added to a bill on mandates, the bill we are
discussing here today. While the Goals 2000 entity, the National
Education Standards and Improvement Commission, cannot enforce its
judgments on the States, they will certainly be given great weight by
each of these States. And that council is a Federal entity. It may well
be made up of some Governors as well as some Members of this body and
some legislators and the like, but it is a national body created by the
Congress with a national purpose.
Nothing in my amendment, in which the Senator from Connecticut has
joined, tells any Governor or State educational administrator that he
or she cannot accept this book today, lock, stock, and barrel, if he or
she wishes to do so.
It does say that a Federal entity will not certify it as worthy of
consideration as a guide for the teaching of American history. In that
sense, each of these people is part of a national entity created by the
Congress with a Federal purpose. Not only is it appropriate for Members
to instruct such a group, I believe it to be mandatory.
We created the group. If it is our view that this is, in fact, a
perverse document that should not be the basis for teaching American
history, now is the time we should say so. Not after it has been
adopted by several States. Not after it has been adopted by this
national organization, but right now.
Opponents cannot duck behind the proposition that somehow or another
they are taking no position. By voting against this amendment, they are
taking the position that it is perfectly appropriate for these
standards to be presented to the States of the United States as the way
in which to teach the history of the United States of America.
The very individual, Lynne Cheney, then Chairman of the National
Endowment for the Humanities, who came up with much of the financing
for this, finds these standards to be totally outside of what she or
the Endowment expected or participated.
And the critics are not from some narrow group in the United States.
They represent the broadest possible mainstream of American thinking.
Former Assistant Secretary of Education, Chester Finn, now at the
Hudson Institute, called these history standards ``anti-Western,'' and
``hostile to the main threads of American history.'' Elizabeth Fox-
Genovese, professor of history of women's study at Emory University
declared ``The sense of progress and accomplishment that has
characterized Americans' history of their country has virtually
disappeared'' from these standards.
The president of the Organization of History Teachers, Earl Bell, of
the University of Chicago Laboratory Schools, called the world history
standards ``even more politically correct than U.S. history
standards.'' Charles Krauthammer, writing in the Washington Post, said
that these proposed standards reflect ``the new history'' and ``the
larger project of the new history is to collapse the distinction
between fact and opinion, between history's news and editorial pages.
In the new history, there are no pages independent of ideology and
power, no history that is not political.'' Herman Beltz, history
professor at the University of Maryland said ``I almost despair to
think what kids will come to college with. I'm going to have to teach
more basic things about the Constitution
[[Page S1035]] and our liberal democracy.'' Albert Shanker, president
of the American Federation of Teachers, described the original draft of
World History Standards as ``a travesty, a caricature of what these
things should be--sort of cheap shot leftist view of history.''
Finally, of course, Lynne Cheney said ``the World History Standards
relentlessly downgrade the West just as the American history standards
diminish achievements of the United States,'' both calling into
question ``not only the standard-setting effort but the Goals 2000
program under which these standards became official knowledge.''
In U.S. News & World Report, John Leo wrote:
This won't do. The whole idea was to set unbiased national
standards that all Americans could get behind. Along the way
the project was hijacked by the politically correct. It is
riddled with propaganda, and the American people would be
foolish to let it anywhere near their schools.
Mark my words: To vote against this amendment is to vote approval of
certifying a set of books, in this case entitled ``National Standards
for United States History,'' paid for by the American taxpayer,
submitted to a Federal organization for its approval. I want to repeat,
we do not tell any school district or any State that if it wants to
treat this as a bible that it is forbidden to do so. All we do is to
tell an organization we created that it is not to certify these
standards. That they are unacceptable. That they denigrate the Western
and the American experience, ignore the most important achievements of
our history, and that if the Federal Government wants to do this job it
ought to start over and do it again with people who have a decent
respect for American history and for civilization.
I am a Senator who, unlike my distinguished colleague who sits next
to me here, the junior Senator from Kansas, who voted in favor of Goals
2000 and in favor of national standards. And like others now seriously
must question my own judgment in doing so, if this is the kind of
product which is going to arise out of that process.
I believe very firmly that if we are to have national standards, if
we are to have support not only of this Congress but of the American
people for national standards in education and various subjects, we
must do much better than this. Not later. Not a year from now. Not 3
years from now. This is the time to say, ``This doesn't measure up.''
It does not reflect the American experience. It is not an outline of
what we should be teaching our children about the history of this
country, and for that matter, the history of the world.
The vote, like it or not, is on whether or not you agree or disagree
with what has been produced here. Turn down this amendment, we are
telling this national council ``everything is OK; approve it, and go
right ahead.'' Accept the amendment and we will have a positive impact
not only on the teaching of our American history but of future
standards in other subjects which are still incomplete. We may yet be
able to save the true goals of Goals 2000.
Mr. BAUCUS. Mr. President, could I ask the Senator a question as to
his intent in the future, if the Senator would yield?
Mr. GORTON. I am happy to yield.
Mr. BAUCUS. Mr. President, I ask my colleague from Washington, Mr.
President, if it would be his intent every time a standard is developed
for consideration, that we in the Congress would pass legislation for
or against that before the goals panel got a chance to consider it?
Mr. GORTON. My answer to the Senator from New Mexico is that is a
very good question, to which the answer is ``no.''
I sense that educational goals are likely to fall into two
categories, one of which is more likely to be controversial than the
other. Some of the standards in other areas--for mathematics, for
example, or for the teaching of physics--will, I think, be very
unlikely to be found controversial or be driven by ideology.
In the case of a set of standards which come from a narrow
perspective, a narrow political perspective, it is certainly possible
that there will be future debates, as there ought to be. I think the
future debates are more likely to be driven by public reaction to these
standards than they are by the preferences of individual Members of the
Senate. This Senator was made aware of the standards by the blizzard of
criticism which they created almost from the day that this book was
published.
Now, by the fact that so many traditional historians in the United
States find them so terribly objectionable, my deep hope, I say to the
Senator from New Mexico, as a member of this national commission, will
be that a decent respect for American traditions in the future in this
and in the study of other kinds of social services on the part of those
academics who generally dominate their writing such standards, will
result in no action at all on the part of the Congress, because while
there may be elements of controversy and particular standards, that
controversy will not reach the fundamental basis of the very philosophy
or ideology out of which they arise.
So I hope that this is not only the first time that we take up a
subject like this, but the last time.
Mr. BINGAMAN. Mr. President, let me just ask one additional question.
The education goals panel, to which we are here giving instructions
prohibiting them from taking certain action, is scheduled to meet a
week from Saturday here in Washington, with Governor Bayh--I believe he
is the new Chair of the education goals panel.
What is the Senator intending to do by this action, by this vote, by
this amendment? What is he intending to tell that group of Governors,
and others who sit on that panel, about what their responsibilities are
for considering standards in the future? Should they wait until we get
some reading from the Congress as to whether or not there has been too
much public concern?
I am just concerned that we are setting a precedent which essentially
makes their job irrelevant or their role irrelevant if we are going to
have public debates in the Congress and pass mandatory legislation
dictating how they are to proceed every time a new set of proposals
comes forward.
Mr. GORTON. Mr. President, I say to my friend from New Mexico, there
is hardly an important commission or entity or agency in the United
States whose controversial decisions or operations do not create
controversy or debates on the floor of the U.S. Senate.
We are elected by the people. We have strong views on particular
subjects. Of course, frequently, well beyond this particular council,
we are going to have debates on ideas which other people, appointed by
the President or appointed by us, deal with.
As the Senator from New Mexico well knows, there is not the slightest
doubt that we will be engaged in a debate sometime later this year on
the future of the Corporation for Public Broadcasting, and Members will
attack and defend the way in which Federal money is spent by that
independent organization, as it is by a myriad of other organizations.
As for the meeting a week from Saturday of this particular
Commission, I would be astounded if this amendment were the law by
then. Certainly the speed with which we have dealt with this unfunded
mandates bill so far hardly indicates that it is going to be through
this body and the House of Representatives, the differences between the
two settled, on the President's desk and signed by the President by a
week from Saturday.
So I suspect that legally, at least, that Commission will be
perfectly free a week from Saturday to take whatever action it wishes.
I strongly suspect that many of those who are elected to positions in
their own States and are appointed members of this Commission may have
reached the same conclusion that I and others have at this point, and I
strongly suspect that they will give great weight to the way in which
this vote comes out. But they are going to give that great weight
either way.
If we vote in favor of this amendment, even though it has not become
law, I think that will greatly influence that council in rejecting
these standards. By the same token, if we turn down this amendment, my
opinion is that many members of that council will, in effect, say the
Congress has approved these standards and they ought to go ahead and do
so themselves.
The PRESIDING OFFICER. Is there further debate on the amendment?
[[Page S1036]] Mr. LEVIN. Mr. President, I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
Mr. GORTON. Objection.
The PRESIDING OFFICER. Objection is heard.
The assistant legislative clerk continued the call of the roll.
Mrs. BOXER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. I thank the Chair.
I rise to speak about where we are at this time with this bill, to
make the point that I have been basically on my feet since 12 noon
trying to offer a very important and timely amendment that has
bipartisan support, that is about an issue of great importance to the
people of this country because, indeed, it is about law and order in
this country.
On December 30, there was a horrible shooting in Massachusetts at a
health care clinic.
The following day there was a shooting in Virginia, at a health care
clinic. Obviously, at that time, the U.S. Senate, this 104th Congress,
had not taken its place here and we were unable to respond, as I know
we would have in a timely fashion, to condemn the violence and to call
on the Attorney General to take the appropriate action to ensure the
safety of those innocent people at those clinics around this country.
As soon as I got back here I made a number of calls to Democrats and
Republicans and I put together a resolution which currently has 21
cosponsors, some of them from the Republican side of the aisle.
I knew that this Senate had a lot of important business, but I also
believed in my heart we would take 60 minutes or 30 minutes, or some
time to go on record, speaking out as Americans--not Republicans, not
Democrats--Americans speaking out against that violence.
I was very hopeful when I heard the majority leader, the new majority
leader, Senator Dole, speak out on national television, condemning the
violence and saying that he was appalled at the violence. I said to
myself, we will have bipartisan support so we can go on the record in
this U.S. Senate. I know my Republican friends have a contract, a
Contract With America or for America--or on America, some people call
it--and they believe in that contract. Some of the things in there are
good. A lot of it is awful, in my opinion. And they are on a timetable
to move that through.
But I have to say that, while I believe the bill before us is very
important--and I say to the occupant of the chair I know how much he
worked, so hard on this unfunded mandates bill. I myself come from
local government. I had to deal with the most ludicrous mandates in the
1980's that you could believe. I would love to be able to get a bill
before us that does not go too far, that is sensible. And I want to
work toward that end. I have a number of amendments that deal with it.
But I thought, as reasonable men and women, we could respond to a
terrible problem we have in our country, and I was very heartened when
I had bipartisan support. The Senator from Maine and I worked in a
bipartisan fashion to speak to the majority leader, to speak to the new
chairman of the Judiciary Committee. This goes back many days ago. Can
we not set aside the bill for a very short time, the unfunded mandates
bill, to take up this resolution in a bipartisan spirit and move on?
I waited. I was very patient, because I really wanted to get this
done in the appropriate spirit of cooperation. The manager of the bill,
someone I have grown to respect and admire and like, has been very open
with me. I have to say the majority leader himself has continued the
dialog with me. However, he has informed me that he does not want this
to be pursued; that he will block my every effort to offer this as a
second-degree amendment to the committee amendments in the hope that I
can work out an agreement with some of those on the Republican side of
the aisle who objected to this coming forward.
I have to say, both sides of the aisle put out what we call a hotline
here to advise Senators that this was a proposal, and on the Democratic
side there was no objection. There was objection on the Republican
side. The majority leader would like to work this out.
I have read my amendment over. There was one phrase in it that I
agreed we could change. I offered to make that change.
I have to tell you, I think the amendment as it stands is very
reasonable. It only has a small resolved clause:
It is the sense of the Senate that the United States
Attorney General should fully enforce the law and recommend
to Congress any further necessary measures to protect persons
seeking to provide or obtain or assist in providing or
obtaining reproductive health services from violent attack.
I cannot imagine any reasonable person opposing that ``resolved''
clause. I have looked at it again and again. We are calling on the
Attorney General to fully enforce the law and recommend to Congress any
further necessary measures needed to protect decent people.
I think it is important to note that there have been over 1,600
incidents of arson, bombing, vandalism, and assault against
reproductive health care clinics and the people who work there since
1977. This is not a problem that has started yesterday. Last year,
there were over 130 incidents, 50 reports of death threats to doctors
and other clinic workers, 40 incidents of vandalism, 16 incidents of
stalking, 4 acts of arson, 4 murders, and 3 attempted bombings. That is
what is going on in America.
I think we should be able to agree in a bipartisan fashion to a very
simple statement that we call on the Attorney General to fully enforce
the law and to come back to us if she thinks other measures should be
taken. My goodness, we are not asking for more dollars here. We are not
asking for anything more than the law be fully enforced and that, if
for some reason, more needs to be done, that we be told about it.
I want to hold up, here, a poster which is a sample of what is being
distributed across America today. It is a ``wanted'' poster, with
pictures and names of physicians. The language is frightening. ``Wanted
for killing unborn babies in the South Bay.'' This is from California.
The language is violent language, and I hope that the people behind
these kinds of posters will rethink their language.
I know they are committed to an issue that they feel deeply about. I
defend their right to peacefully protest. As a matter of fact, if they
were not able to do that, I would join them in that fight, I believe so
much in America and freedom of speech. But I do think, again, we have
often used the example: We have freedom of speech, but when we yell
``fire'' in a crowded theater, perhaps it is going to lead to something
horrible.
This is leading to something horrible, to people being killed. I have
met the families of these physicians who have been murdered. They lost
dads and they have lost moms. I met the families of the volunteers who
helped the women trying to obtain their health care, one of them a
retired military person, shot down dead trying to protect women
exercising their rights. So when you say, ``How can a doctor deliver
babies one day and kill them the next,'' you have to think about the
words that you are using.
I hope that we will come together on all sides of this issue and
recognize that we resolve our problems here in America, not the way
they do it in Bosnia, not the way they do it in Haiti, not the way they
do it in Russia, but by fighting for laws that we think are right. And
by the way, we passed one of those laws, and we did it in a bipartisan
way. But it seems to me that as we went on record then, we should go on
record now.
Since 1982 the Bureau of Alcohol, Tobacco and Firearms has
investigated 148 clinic bombings and arson causing $12 million in
property damage. Doctors working in clinics go to work every morning
haunted by murderers. They have their homes picketed and their children
followed to school. At one time one of the organizations mounted a
national campaign called ``No Place to Hide'' complete with ``Abortion
Busters Manual on How to Attack.'' They placed doctors' names and
addresses on ``wanted for murder'' posters, distributed fliers listing
the
[[Page S1037]] times, dates, and places for picketing medical clinics
and physicians' homes and churches. And other groups put out a handbook
calling it a ``How-to Manual of Means to Disrupt and Ultimately Destroy
Satan's Power to Kill Our Children.'' The book provides 99 covert ways
to stop abortion. It advocates ``Super Glue'' for jamming locks on
clinic doors, cutting off water power, breaking windows, spray painting
walls, and expresses ways to use muriatic acid--I have talked to people
who worked in clinics who are aware of this--including injecting it
into the clinic ceilings and ventilating systems.
The book also has a recipe for homemade plastic explosives and
suggestions on how to make a bomb threat and techniques for uncovering
unlisted phone numbers and addresses. In a section of the book claiming
to be an interview, a member of this organization says, ``I ask you
what would you do if your very own child was scheduled for execution in
the morning.'' And the answer comes back in this book: ``One, blow the
place to kingdom come; and, be there with all the guns and ammunition
in the morning just in case.''
I cannot believe we cannot take an hour's time out on a bipartisan
resolution like this simply calling on the Attorney General to do all
she can do enforce the law, the law that we passed in a bipartisan
fashion. I have been so willing to cooperate with the majority leader,
and to his credit he has been very direct with me, I will say that. But
I have been blocked from offering this.
I do not ever remember blocking anyone from the other side from
offering an amendment. I really might fight their amendment. I might
argue against their amendment. But I never tried to block their ability
to offer an amendment. I am very saddened that this is where we are. I
think the American people must wonder. We are debating mandates. That
is good. But that mandate law is going to take a while to be put in
place. It will create a huge bureaucracy. You should be ready for it. I
mean, that mandates bill will have bills make more stops than the local
bus on the way to becoming a law. And we will debate that.
But this amendment is merely a sense of the Senate that puts the
Senate on record in a bipartisan way. All we are saying is, ``Attorney
General, enforce the law. Enforce the law even if you need to come back
and tell us what else you have to do.''
We know one American who killed Dr. John Britton and his volunteer
escort James Barrett outside of the clinic in Florida. He claimed it
was justifiable homicide. This Senate cannot sit back. I know we move
slowly, but these incidents occurred at the end of December. We have
yet to go on record. I think that is wrong. I think that is horribly
wrong.
So, Mr. President, I look forward to being able to get this
resolution before the body. And I will continue to stay here as long as
it takes so that this Senate goes on record in a bipartisan way and
says this killing, this violence is wrong, and says in a bipartisan way
we call on the Attorney General to do all she can to protect those
clinics.
I yield the floor.
Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Thank you, Mr. President. I will be brief.
I would like to thank the Senator from California for her words on
the floor of the Senate. As I understand it, this is a sense of the
Senate. It is the sense of the Senate that the U.S. Attorney General
should fully enforce the law and recommend to the Congress any further,
necessary measures to protect persons seeking to provide, or obtain or
assist in providing or obtaining, reproductive health services from
violent attack.
Might I ask the Senator, is this what she wants the U.S. Senate to go
on record for?
Mrs. BOXER. If the Senator will yield, that is correct.
Mr. WELLSTONE. Mr. President, I just would like to say to people in
the country, citizens around the country, that quite often--I have only
been in the Senate now for 4 years; that puts me in my first term--but
quite often what we could be doing, the deliberative body that we are,
is while we are working on a piece of legislation when there are
compelling issues before us, then we bring amendments out that we think
are important whereby the Senate takes a position on an extremely
important question.
I have to say, given the murders that have taken place in this
country recently--and murder is never legitimate--the amendment of the
Senator from California is extremely important. I think people should
know that basically what has happened here is that she is blocked from
offering her amendment.
Mr. President, for the life of me, I do not understand why we could
not bring this amendment out on the floor, why it could not be a sense
of the Senate passed. I think it is a terribly important amendment. It
is a sense of the Senate, but it is an amendment that says that all of
us, Democrats and Republicans alike, care fiercely about law and order
and care fiercely about protecting people's constitutional rights, that
we are opposed to murder, that we are willing to take a strong position
on this.
So I thank the Senator for her amendment. I hope that we will be able
to bring this to the floor and have an up-or-down vote.
Mr. President, if there are no other Senators seeking recognition or
interested in speaking right now, I would be pleased to yield the
floor. Otherwise, I would like to suggest the absence of a quorum. I
would like to see whether I cannot get an amendment to the floor. But
could I, first of all, suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. WELLSTONE. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Craig). Without objection, it is so
ordered.
Mr. WELLSTONE. Mr. President, I ask unanimous consent that we set
aside the pending committee amendment and call up the committee
amendment on page 33 so that I can offer an amendment to that
amendment.
Mr. NICKLES. Mr. President, I object for the time being.
The PRESIDING OFFICER. Objection is heard.
Mr. WELLSTONE. Mr. President, just so my colleague from Oklahoma and
others following will know what I am trying to do here, like the
Senator from California, I am anxious to get on with amendments. My
understanding was that the committee amendment on page 33, if we could
put aside this committee amendment and move to that committee
amendment, I might be able to offer an amendment to that amendment.
I do not think it is an amendment that is controversial. I am trying
to get an amendment up on the floor which deals with the whole issue of
whether or not as a part of how we look at accountability committees
would not be required, if they were going to file reports, to have a
child-impact statement. So it is an amendment that is straightforward.
I am prepared to agree to a time limit. It is an extremely important
amendment. That is the amendment I am trying to bring to the floor.
I gather that my colleague from Oklahoma has not changed his view on
this matter. Mr. President, I have tried with all my might, and I am
blocked from bringing up the amendment at this point. I am anxious to
get going with amendments and a discussion, and I hope soon there will
be some sort of break in this impasse.
Mr. President, I yield the floor.
Mr. GLENN. Mr. President, what is the legislation before us now?
Exactly what is the pending business?
The PRESIDING OFFICER. The Dole amendment to the Gorton amendment.
Mr. GLENN. The Dole amendment would modify the----
The PRESIDING OFFICER. The Dole amendment is an amendment to the
Gorton amendment.
Mr. GLENN. Second degree.
The PRESIDING OFFICER. That is correct.
Mr. GLENN. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
[[Page S1038]] Mr. GREGG. Mr. President, I ask unanimous consent that
the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GREGG. Mr. President, I rise in support of the amendment offered
by the Senator from Washington, which addresses the issue of national
standards in the area of U.S. history and world history.
This amendment is very appropriate in light of the discussions which
have recently occurred and the presentation which has been made now by
this national standards proposal.
The question which is before us really is: Is it appropriate for the
Federal Government to be in the business of setting national standards
which, although voluntary in name, in actual fact may end up being
standards that will be used throughout the country and will inevitably
be enforced upon many school districts in this country?
Once you have a group which has been funded by the Federal Government
to the tune of $2 million, producing a set of national standards in any
curriculum activity, it is inevitable that those standards will be used
by local groups within activist educational communities to try to force
that curriculum on local school boards and local school districts. In
fact, I think it is logical to presume that once a national standard
has been set and defined by some group which has received the
imprimatur of the Federal Government, you will see that that standard
is aggressively used as a club to force local curriculums to comply
with that national standard.
This is something that concerned me greatly when we took up the issue
of Goals 2000, and I argued aggressively at that time that it was a
mistake to set up this national school board called NESIC. By setting
up that national school board you were essentially creating a situation
where the term ``voluntary'' was actually illusory. You would end up
where the Federal Government would start defining what would be in the
curriculum of the local school districts, and they would have to comply
with that not only because local educational activists would start
litigating for compliance and claiming that local school districts
which were not in compliance were therefore not teaching properly, but
also because of the fact that funding from the Federal level will
inevitably, at some point, be tied into whether or not local school
districts are complying with these national standards.
In fact, when we took up the elementary and secondary school bill,
that was the exact attempt that was made. It was fought off here in the
Senate by those of us who were members of the conference committee, and
it did not end up being the final law. But it was an aggressive attempt
made to apply to local school districts national standards in the area
of opportunity to learn, and those national standards were going to be
enforced on the local school districts by using the funding mechanisms
of the Federal Government as a club to require compliance.
And so now we have a curriculum exercise coming again from the
national level which will inevitably, in my opinion, lead to a top-down
directive as to how a curriculum should be structured in this country.
There are a lot of problems with that, but there are especially a lot
of problems with that when the curriculum which is designed, and which
is being put forward by the national organizations, is so biased and so
editorial in comment.
This is a curriculum which spends very little time addressing the
substance of history and the facts of history and spends a great deal
of time presenting the editorial comment on history and a revisionist
view of history. As has been mentioned before, within these standards,
eight times we see the American Federation of Labor mentioned. We see
Senator McCarthy mentioned 19 times. Ku Klux Klan is mentioned 17
times. Granted, the American Federation of Labor did have a major
impact on American history, and Joseph McCarthy had an impact--passing
at best--on American history. The Ku Klux Klan was a representative of
a reprehensible period in our history. But if you are going to put that
much time into those types of activities, why and how could you
possibly ignore the mention, as has been pointed out here, of the
undertakings of people like the Wright Brothers, Thomas Edison, Albert
Einstein? It does not really get into the issue of who the combatants
were in World War I, or the factual events that created the War of
1812, and what the battle of New Orleans was all about, for example.
If you want to take a historical event that ought to at least be
pointed out in our history books, that allowed for the opening up of
the entire West. It would not have occurred without it. That list goes
on and on.
Then in the area of discussing how we as a culture came together, the
fact that we are a Western-based culture appears to be something that
this historical standard which is being promoted here tries to ignore,
possibly even reject, and certainly undermines, as it spends an
incalculable amount of time pressing the logic that should be taught as
being the logic of Muslim scholars and scholars who really have very
little relevance to what is the core culture of the American society,
which is Western, whether you like it or not; that is what we come
from. You cannot really understand America's heritage unless you
understand our Western culture. You also cannot understand our
Government, or the way we function, unless you at least have passing
knowledge with people like Henry Clay, Daniel Webster, and even
historical figures like Paul Revere, and the people who fought for the
Sons of Liberty in Boston. Yet, these individuals who played a fairly
significant role in defining our course in history as a Nation are
virtually ignored.
History is about individuals, whether you like that or not. History
is about individuals. Individuals have a major impact on the course of
our lives. The study of major individuals within history is necessary
if you are going to understand the course of history.
You cannot possibly understand 20th century world history unless you
understand Adolf Hitler, or Joseph Stalin, or Lenin. You cannot
understand American history unless you look at people like Daniel
Webster and what he did, or Thomas Edison and what he did, or Albert
Einstein and what he represented, or the Wright Brothers and what they
represented.
Yet, this new curriculum would essentially ignore the concept that
individuals matter and would base its thought process on a revisionist
view of what history is and how individuals impacted it.
The proposal, as it comes forward, for all intents and purposes,
ignores the cold war as a confrontation of ideology. The Soviet system,
which was an outgrowth of Marxism, does not even discuss the concept,
for all intents and purposes, that it was the United States culture of
freedom, of individuality, of individual rights going up against a
culture of totalitarianism, of collectivism, and of the usurpation of
the individual and the replacement of individual rights with the right
of the State. That confrontation, over which this country spent
billions of dollars and lost many, many American lives is, for all
intents and purposes, passed over as a casual event, an event that is
not of enough significance to spend a great deal of time on or an event
which is caricatured through the representations of somebody like
Joseph McCarthy.
The rewriting of history, I believe, we found throughout various
cultures is extremely risky. A culture that lies to itself about what
its history was, tries to undertake revisionist history and teaches its
children revisionist history, is a culture that is going out on thin
ice. This was seen in most recent examples in this century in the
Soviet history system or in the Chinese history system as it presently
exists today or, of course, in the German history system of the 1930's
and early 1940's where, essentially, people who have a political
philosophy--totally repugnant, of course, in our terms, but it was a
political philosophy--defined history in terms of their political
philosophy.
One cannot look at this book which has been proposed on American
history and not conclude that what we have here is a group of folks who
wanted to define American history in the terms of their political
philosophy. They have, it appears, only a passing interest in factual
history; virtually no interest, actually, in factual history; and a
deep interest in cultural history, but it is a cultural history which
they are
[[Page S1039]] going to define in their terms and under their
procedure. OK, if they want to view history that way, that is their
decision. If that is the way these folks who have decided to rewrite
American history wish to view our times and the times of our ancestors,
that is their decision. But the problem here is that they are taking
that view of the world and they are putting it upon educational systems
throughout this country by having it nationalized and having it receive
the imprint of appropriateness, the seal of correctness, through
Federal financing and what will probably be Federal activity through
the national school board, NESIC.
And that is what is wrong with it. It is not only incorrect history,
in my humble opinion--and I guess people can disagree with that--and
very much revisionist history and politicized history and editorialized
history, but it is also an attempt to take that editorial viewpoint and
subject school districts throughout this country to it by designating
it as the correct history.
Well, I do not believe that the Federal Government should be in the
business of defining the correct history. And I certainly do not feel
it should define the correct history for the State of New Hampshire or
for the school systems within my State. And I especially do not
appreciate it when that correct history is so grotesquely biased in its
presentation.
There was some discussion earlier by a Senator as to the effect of
the drafting of this even if it is not endorsed by NESIC. I think we
need to look at that, because this is the first exercise of this nature
that has come forward.
I am extremely concerned that, because of the nature of the community
of historians who dominate the intellectual process of defining our
history in this country, we are going to find that this correct history
will become the standard of the new textbooks.
Anybody who has had the experience of dealing with American history
textbooks knows that they go in sort of fads. They go through periods
of one textbook being in and the next textbook being appropriate. And
because textbooks are so expensive for school systems and so expensive
to produce, they tend to be single entities that become very big best
sellers and dominate the curriculum within the school systems.
My concern is that what we have created here is the ability of an
insidious monster. I guess all monsters are insidious,
but this one is especially so because, as a practical matter, what we
have created here is the core of what I suspect textbooks are going to
look to. Because if you are a textbook creator and a writer or
publisher, you are going to say you want to pick the course of least
resistance and the easiest approach. You are going to say, ``Well, here
is the Federal Government that spent $2 million to produce this
cultural treatise. Why should I go out and reinvent the wheel? I am
just going to take over what has been done by the Federal Government.
After all, it has been done by the Federal Government, so who could
ever argue with me,'' I, the publisher, ``if I undertake the
republication of this document basically in the form it was produced?''
And so we have created a situation where, I suspect, inevitably the
core elements of this cultural document will end up being part of the
text in a textbook initiative which will be promoted across the
country, and it will have been done at taxpayers expense and at our
history's cost. And that will be unfortunate.
I hope that the publishers of this country who produce our textbooks
will take note of the debate on this floor and sense the significant
concern that is being expressed here about the quality of the
workmanship of this product, because it is not good quality and it does
undermine the teaching of history in this Nation, in my opinion.
So I wish to associate myself with the comments of the Senator from
Washington.
I also wish to associate myself with the Senator from Kansas when she
came to the floor earlier and stated that she intended to offer an
amendment to repeal NESIC and end this national school board
experiment. It should never have been proposed in the first place. It
was a mistake and we should terminate it right now. The Federal
Government does not have a role in this area, and it certainly should
not be putting taxpayers' dollars at risk in this area.
I yield back my time.
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, I thank my friend from New Hampshire for
his eloquent support.
During the period of time this was actively debated between myself
and the distinguished Senator from New Mexico and others, he and I have
reached an agreement, which I find to be most constructive.
As a result of that agreement, I intend in just a moment to ask
unanimous consent to modify the Dole second-degree amendment, to modify
it in a manner which would turn it from a statute to a sense-of-the-
Senate resolution.
Since technically if the committee amendment to strike is ultimately
adopted it will all fall. In any event, the most important, the vital
part of what we are doing is really to express the views of this Senate
to this National Education Standards and Improvement Council.
It will do so in the fashion that I asked for. We will have a vote on
it. The vote will be far more one-sided than it would have been on the
original amendment, and I have every confidence that the National
Standards Council will listen to what the Senate has to say. If it does
not, any Member is free to bring up the subject at any future time.
This will also help the progress of the underlying bill, S. 1, itself.
Amendment No. 139 to Amendment No. 31, as Modified
Mr. GORTON. With that in mind, Mr. President, I ask unanimous consent
that the Dole second-degree amendment be modified in the fashion which
I have already sent to the desk.
Mr. GLENN. Mr. President, reserving the right to object, I do not
believe I will object, but I want to clarify this.
Ordinarily, a person who puts in the amendment would modify his own
amendment. Is this something the Senator has worked out with the
majority leader?
Mr. GORTON. Mr. President, I answer my friend, it is the second-
degree amendment to my original first-degree amendment that was
prepared by the majority leader as a courtesy to me. I have worked it
out with his office and he agrees to it.
Mr. GLENN. Mr. President, I will not object.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment will be so modified.
The amendment (No. 139), as modified, to amendment No. 31, is as
follows:
Strike all after ``SEC.'' and insert:
`` national history standards.
``(a) In General.--It is the sense of the Senate that the
National Education Goals Panel should disapprove, and the
National Education Standards and Improvement Council should
not certify, any voluntary national content standards,
voluntary national student performance standards, or criteria
for the certification of such content and student performance
standards, on the subject of world and United States history,
developed prior to February 1, 1995.
``(b) Sense of the Senate.--It is the sense of the Senate
that--
``(1) voluntary national content standards, voluntary
national student performance standards, and criteria for the
certification of such content and student performance
standards, on the subject of world and United States history,
established under title II of the Goals 2000: Education
America Act should not be based on standards developed
primarily by the National Center for History in the Schools
prior to February 1, 1995; and
``(2) if the Department of Education, the National
Endowment for the Humanities, or any other Federal agency
provides funds for the development of the standards and
criteria described in paragraph (1), the recipient of such
funds should have a decent respect for the contributions of
western civilization, and United States history, ideas, and
institutions, to the increase of freedom and prosperity
around the world.''
Mr. BINGAMAN. Mr. President, I would like to comment and thank my
colleague from the State of Washington for his willingness to work with
me to modify this amendment. I have devoted considerable time and
effort to the National Education Goals Panel and I appreciate Senator
Gorton's understanding of my concerns about the role of that Panel and
especially about preserving the national character of the Panel and its
work. In adopting
[[Page S1040]] this amendment we are expressing displeasure
with the current version of the national history standards,
but we are also saying two very important things:
First, that the U.S. Senate is not interfering with the National
Education Goals Panel doing its work and performing its duties under
the law; and
Second, that the U.S. Senate is not interfering with the appointment
of the work of the National Education Standards and Improvement Council
or the performance its duties under the law.
I think these are important points to make as we take this action.
Again, my thanks to Senator Gorton for his courtesy and understanding
with respect to this very important issue.
Mr. LEVIN. I want to commend Senator Bingaman of New Mexico, for his
successful effort to modify the Gorton amendment. The modified
amendment expresses a sense of the Senate but does not bind the panel
on which Senator Bingaman serves. We have asked that panel to serve as
independent persons bringing their own experiences and talents to an
important task. They should not be dictated to by Washington if we wish
them to sue their best judgment and to usefully spend their valuable
time. The modification allows for that independent functioning to
continue. I particularly commend Senator Bingaman for his energy in
achieving the modification and to Senator Gorton for agreeing to modify
his original language.
Mr. KENNEDY. Mr. President, I rise in opposition to Senator Gorton's
amendment. I do not oppose the principle that national standards in
history for the Nation's schools should respect our country's roots in
Western civilization. I completely agree with that concept. It is
vitally important that our students learn that the foundations of our
democracy owe a great debt to our European ancestors.
The National Center for History in the School is the group that
received the contract to develop the history standards. It has a sole
source contract awarded by President Bush's Director of the National
Endowment for the Humanities, Lynn Cheney. The Center agreed with
critics, and it will revise the standards and reissue them this next
spring.
But this amendment represents extreme congressional interference in
the work of the National Education Goals Panel. This distinguished and
independent group was created by President Bush, Governor Clinton, and
other Governors after the Education Summit in 1989. Last year, in the
Goals 2000 Act, Congress endorsed the Goals Panel and gave it statutory
authority to review any standards that were voluntarily submitted to
it.
A process of certification for voluntary national and State standards
was established by Congress last year in title II of the Goals 2000
Act. It provides a process for a through and objective review and
certification of the standards.
The distinguished Americans serving on the panel have been assigned
the responsibility of making judgments on the criteria for
certification and on the overall determination as to whether a specific
set of standards should be certified.
The Panel includes Senators Bingaman and Cochran, Congressmen
Goodling and Kildee, Governors Jim Edgar of Illinois, John Engler of
Michigan, Daniel Fordice of Mississippi, Evan Bayh of Indiana, Jim Hunt
of North Carolina, Roy Romer of Colorado, and Christine Todd Whitman of
New Jersey. Secretary of Education Richard Riley is also a member of
the panel.
The amendment says, in effect, that the Senate does not trust the
judgment of these distinguished officials serving on the panel to carry
through their responsibilities and determine whether history standards
are appropriate.
In approving the Goals 2000, Congress took great care to assure that
the important and sensitive process of certification would be carried
out in a careful and thoughtful way. We should let the panel do its
work and I urge my colleagues to reject the amendment.
Mr. GORTON addressed the Chair.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, I believe a rollcall has already been
ordered on this second-degree amendment. Also, if there are no other
persons that wish to speak, I am ready to have a rollcall vote.
Mr. BYRD. Mr. President, would the distinguished Senator add my name
as a cosponsor to his amendment?
Mr. GORTON. Mr. President, I would do so now, as I have forgotten
another matter. I ask unanimous consent that the distinguished Senator
from West Virginia be added as a cosponsor to the amendment as
modified.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GORTON. Mr. President, I ask that this Senator be added as a
cosponsor to the amendment as modified.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GORTON. Mr. President, I ask unanimous consent that the senior
Senator from Texas [Mr. Gramm] be added as a cosponsor to the original.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KEMPTHORNE. Mr. President, I believe all Senators who wish to
address this particular issue have done so. It would be in order, so I
suggest we go forward with the vote at this time.
The PRESIDING OFFICER. If there is no further debate, the question is
on agreeing to the amendment numbered 139, as modified. The yeas and
nays have been ordered. The Clerk will call the roll.
The legislative clerk called the roll.
The result was announced--yeas 99, nays 1, as follows:
[Rollcall Vote No. 23 Leg.]
YEAS--99
Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Helms
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simon
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone
NAYS--1
Johnston
So the amendment (No. 139), as modified, to amendment No. 31, was
agreed to.
The PRESIDING OFFICER. We now have amendment 31, as amended, before
the body.
Mr. KEMPTHORNE. Mr. President, I move to reconsider the vote.
Mr. ROBB. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. KEMPTHORNE. Mr. President, I would suggest the absence of a
quorum.
Mr. HOLLINGS addressed the Chair.
The PRESIDING OFFICER. The absence of a quorum has been suggested.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HOLLINGS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
Mr. KEMPTHORNE. Mr. President, I object.
The PRESIDING OFFICER. Objection has been heard. The clerk will
continue the call of the roll.
The legislative clerk continued with the call of the roll.
Mr. BYRD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. Mr. President, if I might have the attention of Mr.
Kempthorne and the managers on our side?
The PRESIDING OFFICER. The Senator will suspend. The Senate is not in
order.
The Senator from West Virginia.
Mr. BYRD. Mr. President, I note in both committee reports, the report
by
[[Page S1041]] the Committee on Governmental Affairs and the report by
the Budget Committee, the following language--page 12 of the committee
report from the Committee on the Budget; page 15 from the committee
report of the Committee on Governmental Affairs. Let me read this. Then
I want to make an
inquiry.
Mr. President, I read as follows. I will presently read from the
report of the Committee on the Budget, page 12:
This section provides two new Budget Act points of order in
the Senate. The first makes it out of order in the Senate to
consider any bill or joint resolution reported by a committee
that contains a Federal mandate unless a CBO statement of the
mandate's direct costs has been printed in the Committee
report or the Congressional Record prior to consideration.
The second point of order would lie against any bill, joint
resolution, amendment, motion, or conference report that
increased the costs of a Federal intergovernmental mandate by
more than the $50,000,000, unless the legislation fully
funded the mandate in one of three ways:
1. An increase in direct spending with a resulting increase
in the Federal budget deficit (unless the new direct spending
was offset by direct spending reductions in other programs);
2. An increase in direct spending with an offsetting
increase in tax receipts, or
And this is the one I wish to ask Senators to pay close attention to.
3. An authorization of appropriations and a limitation on
the enforcement of the mandate to the extent of such amounts
provided in Appropriations acts.
The Committee notes that ``direct spending'' is a defined
term in the Balanced Budget and Emergency Deficit Control
Act. The Committee also intends that in order to avoid the
point of order under this section, any direct spending
authority or authorization of appropriations must offset the
direct costs to States, local governments, and Indian tribes
from the Federal mandate.
Notice, ``If the third alternative is used''--in other words,
authorization of appropriations--if that alternative is used, ``a
number of criteria must be met in order to avoid the point of order.''
First, any appropriation bill that is expected to provide
funding must be identified. Second, the mandate legislation
must also designate a responsible Federal agency . . .
Let me read that again. Let me read that paragraph again.
Second, the mandate legislation must also designate a
responsible Federal agency that shall either: implement an
appropriately less costly mandate if less than full funding
is ultimately appropriated . . . or declare such mandate to
be ineffective.
This is page 12.
Mr. HOLLINGS. Page 12. OK.
Mr. BYRD. The report of the Committee on the Budget.
The same language is in the other committee report but upon different
pages. Page 12, right at bottom.
To avoid the point of order, the authorizing committee must
provide in the authorization legislation for one of two
options:
1. The agency will void the mandate . . .
Now, this is the executive branch agency. I hope Senators will get
this.
The agency will void the mandate if the appropriations
committee at any point in the future provides insufficient
funding to states, local governments, and tribal governments
to offset the direct cost of the mandate.
2. The agency [meaning an instrument of the executive
branch] can provide a ``less money, less mandate''
alternative, but this alternative requires the authorizing
legislation to specify clearly how the agency shall implement
that alternative.
Mr. President, I do not believe that this body should pass worrisome
provisions such as this, that may lead to greater litigation and
further complicate the issue. I understand that this provision--and I
hope that I can verify this by one or both managers on both sides of
the aisle--I understand that this provision was not in S. 993; am I
correct? Of last year?
Mr. GLENN. Yes, that is correct. That is not in S. 993.
Mr. BYRD. So this was not in the bill of last year. But it is
something that is new now, as it has come to the floor in the bill that
is before us and is referenced in both committee reports: The Budget
Committee and the Committee on Governmental Affairs. It seems to me it
is incumbent on the Senate to eliminate this provision until such time
as the issue is more fully debated.
Mr. HOLLINGS. Will the distinguished Senator yield?
Mr. BYRD. Yes, I will be happy to yield.
Mr. HOLLINGS. Is it the Congressional Budget Office, or what
executive agency is that referred to on page 12?
Mr. BYRD. It does not name the agency. It is obviously--to me--not
the Congressional Budget Office. It says, ``responsible Federal
agency.'' To me, it is referring to an executive branch agency, some
agency in the executive branch.
Mr. HOLLINGS. Then is it not the case that we are into the separation
of powers? We have a case where we could not avoid the executive, and
certainly the executive cannot legislate by mandating the end of a
piece of legislation.
Mr. BYRD. Absolutely. Absolutely.
Mr. HOLLINGS. Repealing the legislation, in essence, by--what does it
say, mandating--``void the mandate?'' How do you void the mandate
without legislation? So they have the executive agency legislating? Is
that the case?
Mr. BYRD. That is the way I read it. The agency here overrules----
Mr. HOLLINGS. I thank the Senator.
Mr. BYRD. As the distinguished Senator has correctly, in my judgment
pointed out, this is a separation of powers issue.
The agency will void the mandate if the appropriations
committee at any point in the future provides insufficient
funding to states, local governments, and tribal governments
to offset the direct cost of the mandate.
2. The agency can provide a ``less money'' less mandate
alternative. . . .
Here we have a Federal agency, an executive branch agency that can
nullify the action of the Congress. In essence, it can repeal a law of
the Congress or it can modify it. I am disturbed about that. I would
like to hear----
Mr. KEMPTHORNE. Will the Senator yield?
Mr. BYRD. Yes. Yes.
Mr. KEMPTHORNE. Mr. President, on page 12, as you read this, you will
note that it does state in parentheses--and this is very important,
``pursuant to criteria and procedures also provided in the mandate
legislation.''
In other words, we do not leave this at the discretion of an agency.
The agency itself will be determined by the authorizing committee. They
will so state, which Federal agency will be dealing with this.
In that legislation also, I say to the Senator, they will choose one
of those two options. If they choose the option that states that should
a subsequent appropriations bill not provide full funds, then that
authorizing committee in its legislation is going to specify to that
agency the criteria upon this scaling back. If they were to choose the
other option, which is should the subsequent appropriations bill not
provide the funds, then, again, based on the criteria as outlined by
the authorizing committee, under those directions that agency would
then so state. But it would be, again, at the direction of the
authorizing committee in legislation that would then have to be passed
by Congress.
It does not in any way leave that to the discretion of the Federal
agency.
Mr. BYRD. Mr. President, why do we leave it in the hands of a Federal
agency to determine whether or not a mandate should be nullified or
should be modified?
Why should a Federal agency determine on the basis of ``less money,
less mandate''? Why should not the legislative branch do this? Why not
require that an agency seek the approval of the Appropriations
Committees and suggest a reprogramming? That is done from time to time.
But why turn a decision of this sort--it is a final decision--over to
an executive branch agency? It seems now we are setting up a procedure
here that stands in direct conflict with the provisions of article I,
section 1, the very first sentence of the U.S. Constitution, which
vests all legislative power in the Congress of the United States.
Mr. KEMPTHORNE. Will the Senator yield?
Mr. BYRD. Yes. I yield.
Mr. KEMPTHORNE. I appreciate that.
Mr. President, the triggering mechanism is on the fund amount. In
other words, if they choose the option that it is to provide the funds
through a subsequent appropriations bill, and that appropriations bill
provides full funds, then again there is no further recourse except to
implement and mandate.
Mr. BYRD. Yes.
Mr. KEMPTHORNE. If that authorizing committee chose the option that
[[Page S1042]] said, in the event it does not provide full funds, that
is the threshold, and if that subsequent appropriation does not hit
that threshold, then that Federal agency can in fact do a scaleback.
But it is based upon language by the authorizing committee. The
authorizing committee directs the criteria for that scaleback. It does
not leave it up to the discretion of the agency.
Mr. BYRD. Why not eliminate these two paragraphs, eliminate the risk
of litigation, eliminate the risk of running afoul of the Constitution
in respect to the separation of powers? This troubles me. Why have
language in the bill that would open up further litigation? If we truly
intend to limit or to rescind future Federal mandates and not fully
fund them, then I believe such actions should be taken by the Congress.
Mr. BUMPERS. Will the Senator yield for a question?
Mr. BYRD. Yes. I would be happy to yield.
Mr. BUMPERS. I thought for a moment that the Senator from Idaho had
explained this to me. But in looking it over again, I have difficulty
getting the sequence of events as to how this is going to happen and in
what sequence. It says that the third alternative here--that is, the
authorization for appropriations--a number of criteria must be met in
order to avoid the point of order. First, any appropriations bill that
is expected to provide the funding must be identified. So far so good.
Second, the mandated legislation must also designate a responsible
Federal agency. That is fine. We can designate the agency that will
implement the mandate, that shall either, one, implement and
appropriate a less costly mandate if less than full funding is
ultimately appropriated, or--this is really a big ``or''--declare such
mandate to be ineffective.
Does that mean that we are authorizing after we have imposed a
mandate and provided the funds--it says ``or'' allow that agency to
declare the mandate ineffective. So they could, if they decide, as I
read this--and I want to be corrected because this is an immensely
complex bill. Does this mean that agency, if they find that we have not
fully funded that mandate, could provide for a less costly method of
implementing it? And I assume we have designated them and given them
the authority on the front end. The bill is already passed and we have
given them the authority to come up with a less costly method of
implementing the mandate or declaring it inoperative. Am I reading that
correctly?
Mr. BYRD. That is the way I read it. I think we are opening up a
Pandora's box here, if we are going to provide authority to an
executive branch agency to modify or to nullify a mandate if the
Appropriations Committees of the Congress do not provide the full
appropriations. It seems to me we are saying that an executive branch
agency can have the authority to void the entire mandate, or to
determine how much of the mandate shall go into effect; ``less money,
less mandate.''
Mr. KEMPTHORNE. Will the Senator yield?
Mr. BYRD. Yes.
Mr. KEMPTHORNE. Mr. President, in response to the Senator from
Arkansas, in his sequencing scenario, the authorizing committee in its
language would determine which option it chooses. If it chooses the
option that states that in the event that subsequent appropriations do
not provide full funding, then it so states that mandate will not
become effective. That is at the direction of the authorizing
committee. So that is a separate issue here. If, however, that
authorizing committee chooses the other option, which is that in the
event full funding is not provided in a subsequent appropriation, then
a Federal agency is directed--directed by the authorizing committee--to
scale back that amendment. But the criteria for the scaling back again
are included in the language of the authorizing committee.
Let us say the executive agency is carrying out the direction of
legislative branch. It is carrying out the direction as specified, and
it does not leave these decisions to the discretion of that executive
agency.
Mr. BUMPERS. If I may comment on that very last sentence, this says
that if the appropriation is less than the amount this agency
determines to be needed to fully implement the mandate, you are giving
that agency two options as I read this. They can either cut the mandate
to some extent, modify it to make the money fit the mandate, or, as I
started out a moment ago, or declare the mandate to be ineffective.
I think the Senator and I both are reading this the same way now.
What I am really suggesting is that this is a tremendous discretion
that we are handing to the executive branch to declare that we either
have not funded it fully and, therefore, they are going to cut it, or
they are just going to torpedo it altogether.
Now, why would we want to give the agency that kind of authority?
Obviously, we feel the mandate is important or we would not have passed
the bill.
Mr. KEMPTHORNE. Will the Senator yield?
Mr. BYRD. Mr. President, I ask unanimous consent that I may yield for
the purpose of the colloquy between and among other Senators, including
myself, without my losing my right to the floor.
The PRESIDING OFFICER (Mr. Frist). Without objection, it is so
ordered.
Mr. KEMPTHORNE. Again, I appreciate that.
Mr. President, to the Senator from Arkansas, I can only reiterate
what the process is. The authorizing committee, of necessity, has had
to work closely with the appropriate appropriations committee. There
has been communication, so that there is, based on that communication,
based upon the progress of that bill, the authorizing committee knows
if in fact the money will be appropriated. They will know that it is
either a yes or no issue. So, again, they will choose the option. It
does not allow--does not allow--the executive agency to make that
determination as to whether or not they just rule that there is not
enough money, so we are going to wipe it out, because the authorizing
agency has that power, and they initiate that power in the language of
the authorizing committee, which is then passed by Congress.
Mr. BUMPERS. Let me make one observation. I am not going to pursue
this and belabor it any further. But as I read this language here,
Senator Chiles used to say ``the mother tongue is English,'' and this
is the way I read this English. The sequence would be that the
authorizing committee would authorize appropriations. I assume that the
authorizing committee would either say such sums as shall be necessary,
or if they have a CBO figure, what it is going to implement that, they
would authorize that amount to be appropriated. The Appropriations
Committee on which I sit would subsequently decide, also based on what
CBO says it would cost to implement the mandate, and the figure might
be different than the one the authorizing committee used when they
passed the authorizing legislation.
But assume for the purposes of our argument that the authorizing
committee says it will take $100 million to implement this mandate; the
Appropriations Committee comes along, as we usually do several months
later, to discuss whether we want to appropriate this $100 million or
not, because it may be that CBO by that time has said--let us assume
for the purpose of argument--it will only take $90 million. So we
appropriate $90 million. This Federal agency down here--as I read this,
it says that if they find that our appropriation is not sufficient,
after we have made our very best estimate on it, used the best
information we could get from CBO, or somebody else, the agency down
there says, well, you flunked, you did not appropriate enough money;
this is going to cost $130 million to implement this, or $150 million.
Mr. BYRD. It might be years later.
Mr. BUMPERS. It could be. It could be any time in the future.
Mr. BYRD. Because it is every year we are talking about.
Mr. BUMPERS. Certainly. So they say that because you goofed, we are
going to take it upon ourselves to vastly reduce the mandate, no matter
how critical it might be--it might be asbestos, water well pollution,
or whatever, and they can say we are going to either severely reduce
the requirement on the cities, counties, and States, or, two, we are
negating the mandate. Now you are giving them an option, Senator. Even
[[Page S1043]] though we may have appropriated $90 million, to say that
is not enough to get the water hot, so we are negating the entire
mandate. Is that a fair reading of it?
Mr. BYRD. That is the way I read it.
Mr. GLENN. There were a number of changes from S. 993 which we
brought out of committee last year. A lot of changes were made in S. 1.
Most of them, I was part of. This particular change was not in S. 993,
and I was not part of this.
Let me address this a little different way. The point made is a very
good one. The point, basically, is that we are giving away our
legislative authority when we say to an agency: You have authority to
void something. I think that was probably a poor choice of words in
this. What we were trying to cover in these two parts, I believe--and I
ask my friend from Idaho to correct me if I am wrong--was to say where
the authorizing committee put in a certain amount that in our best
judgment was going to take care of this and then there were no
appropriations followed up for it, then what happens? Well, what we
should have said was that the agency will not be responsible for
carrying out the enforcement of this mandate instead of saying the
agency has the authority to void what the Congress has done--in that
case, where there is no money. That is in the first case. So I think
the void-the-mandate language was probably a poor choice of words in
this. It was not intended to pass along legislative authority over to
an agency.
No. 2 says, OK, we authorize certain things in committee to take care
of this mandate, but the appropriators did not have all that money. But
they said maybe it would have required $100 million. They say, well, we
just do not have that; you have $60 million to carry this thing out. In
that case, the agency can provide an alternative of less money, of less
mandate, but this alternative requires the authorizing legislation to
specify clearly how the agency shall implement that alternative. In
other words, we would give scaled-back advice if that is necessary. So
I think the one that the distinguished colleague from West Virginia
cites here, the voiding the mandate, was probably language that should
not have been in there to begin with. I think it would have been better
if we said if there is no money, then the agency is not required to
carry out the mandate. That would not pass authority, to void a
legislative act of the Congress over to an agency.
Mr. BYRD. Under the Constitution, only the Congress has the power to
enact laws, and only the Congress can appropriate moneys. If there is a
need to rescind or to repeal or to modify, why does the legislative
branch not do that? Why turn that over to some unelected bureaucrat--
and this is no disparagement of bureaucrats, because we have to have
them--why turn that over to an unelected bureaucrat, who is given no
power under the Constitution? I am one who believes that the Congress
cannot give away power that is vested in the Congress, and the Congress
only, by the Constitution.
Mr. GLENN. If the Senator will yield, let me make an analogy here. I
think we do this all the time, if it is taken in the light just stated.
Mr. BYRD. We delegate certain authority.
Mr. GLENN. Then we say there are no appropriations to carry it out.
For instance, we require by law a nuclear cleanup in this country. So
we say the agency is supposed to go out there--the Department of
Energy--and make an assessment of all these places and do a nuclear
cleanup. They are supposed to do the best job possible. In some places
we will not have money appropriated to do that. The authorization is
still there. And in some places we will partially fund that operation.
That does not mean that the authorization should come back to Congress
and be changed. It just means that the authorization is still there,
but we have not been able to provide enough money to do it. So we say,
``Do what you can.''
Mr. BUMPERS. If I may make an observation, then I will withdraw from
this colloquy. This would have been much better, in my opinion--and I
would want to think about it because there are probably better
solutions--but if the language of this bill had said: At such time as
the designated Federal agency--or if at any time the Federal agency
determines that the appropriated amount is insufficient to fully comply
with the mandate, to execute the mandate, such agency shall report
their findings to the Congress forthwith for such determination as the
Congress chooses to make. Would that not solve it?
Mr. BYRD. Right.
Mr. KEMPTHORNE. Will the Senator yield?
Mr. BYRD. Yes.
Mr. KEMPTHORNE. Mr. President, I believe, I say to my friend from
Arkansas, that, as you have just stated it, in essence that is what we
have provided here.
The Senator from West Virginia is correct. We should not give our
power away. But we do not. We make that determination. We make that
determination. If the funds are not there, we, the Congress, have
stated that that mandate will not take effect. We, the Congress, have
stated----
Mr. BUMPERS. I am reluctant to interrupt the Senator, but that is not
the way I read it. We give the agency the right to say that they do not
have to implement that mandate. If they find there is less money than
is necessary to carry out the mandate, you give them the option of
reducing the mandate or torpedoing the mandate. That is what the
Senator from West Virginia and I are both objecting to.
Mr. BROWN. Will the distinguished Senator yield on that point?
Mr. BUMPERS. I am happy to yield.
Mr. BROWN. I thank the Senator.
I think both the Senator from Arkansas and the Senator from West
Virginia are to be commended for raising this point and calling the
Senate's attention to it. I think it is a valid point of concern worth
looking at.
As I look on page 23 of the bill, the bill deals specifically with
this provision and it is one of the three options that is laid out.
These have already been noted by the distinguished Senators. One, the
alternative of Congress that it has been paid for; two, the option of
raising the funds and paying for them, the one you all have called our
attention to; and the third alternative, where they authorized the
spending and then developed options.
One of the things of great comfort to me is the specific language,
because what it calls for is Congress itself to set out the procedures
that the agency must follow. And let me quote, because I think it is
the language that we will be concerned with.
Under (III), it says:
Identifies the minimum amount that must be appropriated in
each appropriations bill referred to in subclause (II), in
order to provide for full Federal funding of the direct costs
referred to in subclause (I); and
(IV)(aa) designates a responsible Federal agency and
establishes criteria and procedures under which such agency
shall implement less costly programmatic and financial
responsibilities of State.
And so on.
In other words, it is Congress specifically that is charged with and
must set the procedures and set the guidelines. Under (bb), it says:
Designates a responsible Federal agency and establishes
criteria and procedures to direct that, if an appropriation
Act does not provide for the estimated direct cost of such
mandate as set forth under subclause (III), such agency shall
declare such mandate to be ineffective . . .
An so on.
I think this is very comforting because it makes it clear here there
is no delegation of power; that the decision as to what the procedures
are is set forth by Congress, that the decision as to what the criteria
are is set forth by Congress.
In the constitutional law on this area of improper delegation, I
think it is very comforting and very reassuring to this Senator
because, as long as Congress is the one that sets the procedure, as
long as Congress is the one that sets the criteria, as long as Congress
is the one that sets the standards, then the delegation is proper under
the case law.
On the other hand, if this language should fail to be in there, if
Congress had not taken on the responsibility of setting the criteria
and procedure, then indeed we would have a constitutional question.
I, for one, appreciate the point being raised. If the Senators have
further questions about it, I will be happy to respond with specific
constitutional cases where the matter has been considered.
[[Page S1044]] But I am at least reassured, as I look at the
language on page 23 and page 24, that the fact that Congress
specifically sets the procedures and criteria gives us the comfort
level we need.
Mr. BIDEN. May I ask the Senator from Colorado a question on that
point?
Mr. BYRD. Yes, I yield for that purpose.
Mr. BIDEN. As I read Morrison versus Olson and other separation of
powers cases, the fact is that the judgment made by the Supreme Court
as to whether we can or cannot delegate authority, any branch in the
Federal Government may or may not delegate authority, relates not to
whether they have set up procedures, but relates to whether or not the
delegation of authority goes to the essence of the function of that
branch.
For example, we could not set in motion here, even if we wanted to,
by legislation, a proposal that said the President of the United States
of America shall, under the following circumstances, not only nominate
but in fact confirm a Federal judge. We could not do that. We could lay
out in great detail the circumstances under which a President could
take over the whole responsibility of putting someone on the bench, and
that would be an unconstitutional delegation of power under the
separation of powers doctrine.
Now, I would be very, very interested, because I know, and I mean
this sincerely, how learned my friend is in the law. But I have made
the serious mistake of teaching constitutional law on this subject for
the last five semesters, and I have been forced to read all these
cases. I am not suggesting that I have the book on this issue, but I am
suggesting to you I have read no case where there is the ability for
someone to conclude from reading the case that you can, if you set out
proper procedures, delegate authority which is essentially legislative
or for the President. The President could not turn around and say, ``By
the way, I, by Executive order, from now on am asking the U.S. Senate
to name who will be nominated for the Court and also move forward and
confirm those persons.'' He could not do that.
Now, again, I know everybody does not want to prolong the debate, but
I think this is a critical question, and one that the Senator from
Arkansas and the Senator from West Virginia, I believe, have suggested
is easily reconcilable.
For example, as I read the Budget Act, you could, in fact, have done
what they did in the Budget Act. The Budget Committee retains the
judgment of whether or not they will, in fact, conclude that something
is within or beyond the budget resolution. They do not delegate it to
an alphabet agency. They do not delegate it to another branch of
Government.
So I would be very anxious--and I am not trying to put the Senator on
the spot--but I would be very anxious to hear now the case law that he
thinks sustains his position, or give him time to do that. And this is
not meant by way of just trying to be obstreperous or to embarrass. I
truly do not know of any cases that sustain the assertion made by the
Senator from Colorado.
Mr. BROWN. Let me thank my distinguished friend from Delaware.
Mr. BYRD. Mr. President, I continue to hold the floor and I ask the
Chair for that right.
I yield for the purpose of the colloquy.
Mr. BROWN. I thank the Senator for accommodating a dialog on this
subject.
I want to mention that I think my distinguished friend from Delaware
may sell himself short. He indicates he has taught constitutional law
for only 5 semesters. I personally have served on the Judiciary
Committee, where he has been chairman for eight semesters. I do not
know how much other legal education he has engaged in, but I, at least,
have found him quite informative and quite thoughtful in this area--
occasionally correct, as well--in his judgments as we move forward, and
I think always helpful as we look into this.
Let me suggest to my friend that if indeed what were suggested here
would be to delegate a legislative function to these agencies, then I
would be in wholehearted agreement with him. I think it is quite clear
the intent of this bill and I think it is quite clear under the
constraints we must follow that we can only delegate enforcement of
policy decisions, not the function of legislating itself.
And while I hope the sponsors of this bill, which includes myself,
will be open to any reasonable suggestions in this area, I must say,
from looking at it, at least my conclusion is that the language we see
on pages 23 and 24 is very helpful in that area, because it not only
includes Congress being required to set forth procedures, as my
distinguished friend referenced, it also includes specific language
requiring Congress to set forth the criteria on which this judgment
must be made.
So I think it is quite clear from the language that this is not a
delegation of legislative authority. It is simply a requirement that
they enforce criteria and procedures set down. I want to reiterate my
hope that if there is an improvement in language we would consider it
and look at it. I think the point is very valid. In terms of recitation
of a constitutional law in this subject and specifically the cases, I
think that is a valid request, a reasonable one, and I would be happy
to include that in the Record.
Mr. President, I yield.
Mr. BIDEN. Mr. President, I know the Senator from West Virginia had
the floor, and I would be guided by whatever he wishes. I can come back
to this later or we could continue, whatever the Senator suggests. I
have no preference in the normal order of things. I know there were
other Senators here to speak on this and other issues, before me.
Maybe what I should do with the Senator's permission is gather up,
since I just walked on the floor and did not anticipate being involved
in this debate, some of the case law to which I refer and come back and
maybe continue this debate if the Senator from West Virginia thinks
that is appropriate.
Mr. BYRD. Mr. President, I hope the distinguished Senator will
continue to elucidate on this point and enlighten the Senate so that we
may better understand how to approach this matter.
I do not want to continue to hold the floor. The Senator from South
Carolina is seeking the floor, also.
Mr. GLENN. Mr. President, will the Senator yield for a brief comment?
Mr. BYRD. I yield to the Senator.
Mr. GLENN. The agency will void the mandate, the red-flagged
language, to the Senator from West Virginia. And rightly so, indicating
we would be passing our authority off to an agency when we should not
do that.
Now, if we come back and look at the actual language in the bill, it
is not written quite that way. On page 24, in that second section,
starting in the middle of the page, it says basically that the
authorizing committee will designate a responsible Federal agency and
establish criteria and procedures to direct that if an appropriations
act does not provide for the estimated direct costs of such mandate as
set forth under subclause 3, such agency shall declare such mandate to
be ineffective.
It does not say it voids it. It does not pass legislative authority,
the way I interpret that, but it just states the obvious. If there is
not an appropriation to cover this, that the mandate becomes
ineffective as of October of the fiscal year for which the
appropriations is not equal to the direct costs of the mandate.
Mr. BYRD. Of course this may be 5 years, may be 10 years.
Mr. LEVIN. Would the Senator yield just on that one issue?
Mr. BYRD. I yield.
Mr. LEVIN. The Senator from West Virginia is raising a number of
questions including the constitutional delegation. But there is another
problem here. If an appropriations committee as many as 5 years or 10
years later is not allowed under this language to determine that a
lesser appropriation will do the job, it is bound by a previous
authorization bill that could be 10 years earlier, which made an
estimate which may be absolutely a wild estimate. Five years later, 10
years later. An appropriations committee does not allow under this bill
to make a determination that a different amount, a lesser amount, would
fully fund that mandate.
That is one of the many issues that is raised with this language.
Now, there are other issues. There are specificity
[[Page S1045]] issues. And the Senator from West Virginia is also
putting his finger on a critical constitutional issue here. I will say
one other quick comment. This is the new language.
Mr. BYRD. It was not in the bill last year.
Mr. LEVIN. It was not in the bill last year. This was a language that
was in a bill introduced on a Wednesday night, which went to a hearing
on Thursday morning, which was intended to go to a markup on a Friday
morning which we had to plead for a delay of over the weekend for the
markup to a Monday morning. When we made an effort to get a committee
report on this, we denied that committee report so that it could come
to the floor the next day. This is the language that was not in last
year's report which is very new, novel, significant language.
Now, I repeat: I am someone who supported last year's bill. But I
think this goes too far and raises very significant questions which are
worthy of real examination on the floor.
Mr. BYRD. Exactly, and we have a cloture motion which we are supposed
to vote on tomorrow morning, which if adopted leaves us with 30 hours
only. And the Senator from Michigan may have 1 hour. That is all he can
have. This locks in, as the distinguished Senator from Michigan has
stated, it locks in for the life of any new mandate, 5 years, 10 years,
20 years, or whatever the CBO estimates for every future year.
This means that even if we find in some future year--5 years down the
road, 10 years down the road--the Senator from West Virginia may not be
here if it is 20 years down the road--that a mandate can be met for
less money, we nevertheless must appropriate the minimum contained in
the bill that sets up the mandate for all future years.
If less is appropriated in any year, then the agency decides. We have
an unelected bureaucrat who, perhaps, will make the decision under a
different administration or perhaps under a different administration,
last one or two administrations, different members of the
Appropriations Committee, different members of the authorizations
committee.
We have an unelected bureaucrat making that decision.
I say that unelected bureaucrat is not only unaccountable to the
people, but if we leave it in the hands of the Congress, that is where
it ought to be. Then the American people know whom to vote against.
They at least know whom to vote against if they do not like a mandate
being cut back.
But under this process this amendment would put in place, to whom do
they complain if they do not like the mandate? To whom do they complain
under this process? Why do we not leave it in the hands of the
Congress? That is where the Constitution puts the power under article
I, the power to legislate. Article I, section 1. Article I, section 9,
power to appropriate.
I am very concerned about this language, Mr. President. I should
think we ought to have more time to debate this point so that we can
scrutinize it, focus on it, subject it to the microscope and be sure we
make a correct decision. With the cloture motion pending here, I have
an amendment prepared that would strike this. It would strike it,
strike the language. If the cloture is invoked tomorrow, if we cannot
reach a decision today, and cloture is invoked tomorrow, that is the
only amendment I can offer. I cannot offer an amendment, then, to
modify. I might be able to find a way but it would be very difficult to
offer an amendment, then, that would modify and bring together language
that was beside the point by a meeting of the minds on both sides of
the aisle. We would be prohibited from doing that.
Why not eliminate all reference to appropriations committee here? Let
the authorizing committees pay for it out of their allocation. Or let
them, through the pay-go process, let them provide the money. Let them
raise the taxes, or whatever is required, to meet the full funding.
Strike all reference to appropriations. Let us out of it.
Mr. KEMPTHORNE. Would the Senator yield?
Mr. BYRD. Yes.
Mr. KEMPTHORNE. Again, there is a point I would like to make, Mr.
President. The Senator stated that this locks us in.
There is nothing to preclude that in a subsequent year as we find
that perhaps, now, based on actual cost, those costs have changed. It
is no longer based on estimate but actual cost; that Congress can
revisit that, because in keeping with the spirit of what the Senator
from West Virginia has said, Congress speaks. We do not delegate. This
might cause us to revisit the mandates a little more often than every
5, 10, 20 years, which is welcome news to our State and local partners.
Mr. BYRD. Well, strike out all reference to appropriations, and then
the authorizing committees could review them every year if they want
to.
Mr. KEMPTHORNE. Again, I know our friend from Utah has some good
information on this issue that I hope he will be able to impart to the
Senate.
Mr. BYRD. Mr. President, I ask unanimous consent that an editorial
from today's New York Times be printed in the Record.
There being no objection, the editorial was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 18, 1995]
What's the Rush on Mandates?
Environmentalists and others whose interests are served by
Federal regulation have a name for the three main elements of
what promises to be a sustained Republican effort to
deregulate American society: the ``Unholy Trinity.'' The term
connotes both respect and fear. There is merit in all three
ideas. Yet critics fear that, taken together, they will
cripple a quarter-century of Federal efforts to protect
everything from the environment to worker safety.
The ideas grew out of Newt Gingrich's ``Contract With
America.'' One would require compensation when property
values are diminished by Federal regulation. A second would
subject regulations to independent cost-benefit analysis,
otherwise known as ``risk assessment,'' that could make it
more difficult for Federal agencies to carry out rules. The
third would make it harder for Congress to approve costly new
``unfunded mandates''--obligations imposed on state and local
governments without the Federal dollars to pay for them.
These are seductive notions with big consequences. All will
need careful legislative handling. Unfortunately, that is not
happening with the first of the three to take legislative
form--an unfunded-mandates bill that began a fast-track trip
through Congress last week. The bill which contains sensible
suggestions and serious flaws, received only cursory
inspection by two Senate committees. It is now on the Senate
floor and will hit the House next week. That is much too
fast.
Unfunded mandates have long been a sore point with mayors
and governors, who say the cost of carrying out Washington's
agenda denies them flexibility. Under the proposed
legislation, any bill imposing a Federal mandate of more than
$50 million must include an estimate by the Congressional
Budget Office of its non-Federal costs. It must also include
the money to pay for the mandate.
A single legislator could block any new mandate that does
not meet these conditions. The objection could be overridden,
but only after separate votes to override in both houses.
Phil Gramm, Republican of Texas, would raise the threshold by
requiring 60 votes to approve an unfunded mandate.
Forcing Congress to reach a higher level of accountability
cannot be a bad idea. That is why a bill of some sort is
certain to pass and why President Clinton is likely to sign
it. So what's to complain about? There are at least two big
flaws. First, the bill sets up a two-track system that would
discriminate against the private sector. Private companies
would still have to obey (and pay for) Federal mandates.
Unless Congress gave governments the necessary funds, they
could ignore them.
That could put private businesses at a competitive
disadvantage. Laws governing waste disposal, for example,
require expensive landfills to prevent contamination of the
underlying water table. Private waste-disposal companies
would still have to build and operate these landfills, but
state and local governments would not unless Congress
underwrote the costs. The U.S. Chamber of Commerce, which can
usually be counted on to support Republican initiatives, have
complained that the bill would severely skew the marketplace.
Some environmentalists suggest a compromise: Apply the
unfunded-mandates prohibition to strictly governmental
functions, like education and welfare; where mandates apply
to both private and public entities, both should pay. The
Clean Water Act, for example, imposes equally strict rules on
the discharge of both industrial and municipal wastes. Would
unfunded local governments now be free to pollute? That
unthinkable outcome is a real possibility under the
Republican bill.
Another big problem is that the bill applies to new law and
does not address the billions in unfunded mandates from old
law. That could have the perverse effect of discouraging
efforts to fix outdated legislation; any new law that imposes
unfunded mandates could run into a Congressional roadblock--
even though the new law represents a vast improvement over
its predecessor.
The bill before the Senate is a carelessly drafted answer
to legitimate complaints.
[[Page S1046]] Senators Carl Levin of Michigan and Joseph
Lieberman of Connecticut, Democrats who are sympathetic to
the measure, are using every parliamentary tactic in the book
to delay the bill until it is fixed. More power to them. A
bill that could reshape basic relations between Federal and
local governments, penalize the private sector and threaten
the environment should not be railroaded.
Mr. BYRD. Mr. President, I yield the floor.
Several Senators addressed the Chair.
Mr. BYRD. Mr. President, I promised the majority leader I would
suggest the absence of a quorum at the end of my statement. I want to
keep my commitment. I suggest the absence of a quorum.
Mr. HOLLINGS. I do not want to forgo that.
The PRESIDING OFFICER. The clerk will call the roll.
Mr. HOLLINGS. I ask unanimous consent--and then you can go ahead and
object because I am not trying to stop that. Sometime, somewhere I
would like to get recognized so I can speak. We will go ahead with the
quorum call.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HARKIN. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
Mr. KEMPTHORNE. I reserve the right to object.
Mr. BYRD. You cannot reserve the right to object.
Mr. KEMPTHORNE. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard. The clerk will continue to
call the roll.
The assistant legislative clerk continued to call the roll.
Mr. BYRD. Mr. President, I ask unanimous consent that the order for
the quorum call be dispensed with.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. BYRD. Mr. President, I ask unanimous consent that I may retain my
right to the floor and allow the colloquy to continue among Senators
Hollings and----
Mr. HOLLINGS. There is no colloquy. I want to be recognized in my own
right.
Mr. BYRD. I was trying to find a way the Senator----
Mr. HOLLINGS. It is easy to do. Everybody else can be recognized. You
all have been up here for days and weeks. I never have been recognized
on this score, and I would like to be recognized, but I will await my
turn.
Mr. BYRD. The Senator from South Carolina was here before I was and
sought the floor. I hope that he would seek recognition and get the
floor. But I had to keep my commitment to the majority leader. I yield
the floor. I hope the Senator from South Carolina will seek the floor.
Mr. KEMPTHORNE addressed the Chair.
Mr. HOLLINGS. Mr. President, may I get recognized?
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. I thank the Chair. Mr. President, I was not privy to
the discussion that the majority leader had with the distinguished
Senator from West Virginia, but what I would like to do is make a
unanimous-consent request that the Senator from South Carolina be
allowed to now speak, no amendments would be in order; that following
that, we could then allow a colloquy to continue on this issue raised
by the Senator from West Virginia.
Mr. HOLLINGS. Mr. President, it is quite obvious I would like to talk
and without restriction, like any other Senator, like 100 of us here. I
do not have to get unanimous consent. I will await my turn after
amendments and after all of your rigmarole takes place. I do not think
I have to go through my courteous friend, the distinguished Senator
from Idaho, to be recognized. I will await my time.
Mr. HARKIN. Will the Senator from Idaho yield for a question----
Mr. KEMPTHORNE. I will yield.
Mr. HARKIN. Without losing his right to the floor. I would like to
ask the Senator from Idaho, we are here, we have amendments to offer.
The bill is open for amendments. Why can I not offer my amendment?
Mr. KEMPTHORNE. I will be happy to respond to the Senator from Iowa.
It is because we are trying to work out an issue that deals with an
amendment from the Senator's side of the aisle. I have been told that
we are close, but because of the fact that a number of Senators on his
side of the aisle are very concerned to protect that issue for a
Senator from the other side of the aisle, we have not been able to get
other approval to move forward on some of these amendments. That is the
reality.
So until I am told we have resolved the issue on the Senator's side
of the aisle, I felt that it was very healthy to have this discussion
about the bill itself. I think it helps all of us. So that is why, with
all due respect. It is because we are concerned about a Senator on the
other side of the aisle.
Mr. HARKIN. Might I further ask the Senator, is there an objection on
this side of the aisle then to anyone offering an amendment? Is there
an objection that has been raised on this side of the aisle? I would
like to ask that question for the record, and if so, I would like to
know who.
Mr. KEMPTHORNE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HOLLINGS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Is there objection?
Mr. KEMPTHORNE. I object.
The PRESIDING OFFICER. The clerk will continue to call the roll.
The assistant legislative clerk continued to call the roll.
Mr. BYRD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. Mr. President, could we get some idea as to how much longer
we are going to have to sit here without the ability to offer an
amendment? Here time is running. It is 6 p.m. We have a cloture motion
that is supposed to be voted on in the morning and there are several
amendments. We have not had an opportunity to offer these amendments.
Mr. HARKIN. I have one.
Mr. KEMPTHORNE. Will the Senator yield?
Mr. BYRD. Yes.
Mr. KEMPTHORNE. In response to that, it is my hope that we are
momentarily away from being allowed to go forward with an amendment,
which is from the Democrat side. And, again, as floor manager, knowing
the number of amendments that are there, waiting for action so we can
finally have the sort of dialog that we had a few moments ago on this
bill, and lay it out there--I would love nothing more. That is what I
have been pushing for.
But again, I must say, with all due respect, because of legitimate
concerns--and I respect this--from Senators on your side of the aisle,
to protect a Senator from your side who will be offering an amendment,
I assume very soon, we have not been able to move forward with some of
the other amendments. That is the situation.
So I hope we are just moments away from a green light from the
parties on both sides of the aisle on that amendment so we can proceed.
Mr. GLENN. Will the Senator yield?
Mr. BYRD. Mr. President, I hope this is not going to be charged up to
Byrdlock.
I do not say this unkindly to the distinguished Senator.
Mr. HOLLINGS. Will the Senator yield?
Mr. BYRD. I have the floor.
Mr. HOLLINGS. Will the Senator yield?
Mr. BYRD. Yes.
Mr. HOLLINGS. The Senator knows the Senate is a continuing body,
except for now. I have never seen, in my brief 28 years, this nonsense.
What he wishes and hopes for and everything else--do not give me about
our side of the aisle and everything else--everybody takes their turn.
Things take time to work out. We cannot move forward with this
amendment, or I could get recognized and talk.
Mr. KEMPTHORNE. I would suggest to my friend from South Carolina,
with a great deal of respect, that I have throughout this day been
floating and
[[Page S1047]] suggesting unanimous-consent agreements to bring these
amendments to the floor. And there has been objection from your side.
So I think I have followed what is prescribed in the Senate rules, in
the spirit of trying to get the amendments. I would like nothing more
than to get these amendments out on the floor so we can debate them and
vote on them.
Mr. BYRD. Mr. President, so the record may be clear, there have been
no objections from this Senator today.
Mr. HOLLINGS. I do not find our side objecting. I find constantly the
other side objecting. That is the whole point.
Mr. BYRD. This Senator is not objecting. I think the distinguished
Senator from Idaho is doing the best he can. I think he is trying to
follow some injunctions placed on him from higher up. I cannot fault
him for that. But I wonder how much longer we are going to be remaining
in this state of limbo. We cannot offer amendments. We cannot even get
unanimous consent to set aside the pending amendment and take up an
amendment by Mr. Hollings. Where is the problem? Why all the rush? This
is what I have been saying all along.
I have been rather amused to see a new term in the legislative
lexicon, ``Byrdlock.''
But is this Byrdlock? I hope this delay is not charged against
Byrdlock.
Why can we not debate the bill? Why can we not offer amendments? We
have a cloture amendment that is going to be voted on in the morning
and scores of amendments waiting here.
If this is not putting the boot heel on the neck of the minority,
pray tell me what it is? What is this? Who has the lock on the Senate
now? The Senator from South Carolina has been sitting in his seat for
an hour--or longer. After the last vote, he stood and sought
recognition. A quorum was begun and the effort to call it off was
objected to.
Then the distinguished majority leader came into the Chamber. I said
I would like to call off the quorum call and make a statement. He said,
``Well, will you put in a quorum--put us back in a quorum?''
I said yes. I did not know we were going to be locked out for the
next half hour or hour, or whatever it is.
I hope that we can get some idea of how much longer we are going to
have to sit here in a state of limbo, and not be able to offer an
amendment.
Mr. GLENN. Will the Senator yield without losing his right to the
floor?
Mr. BYRD. Yes. I do not want to keep the floor. I just want to make
sure this delay is not charged up to Byrdlock.
Mr. GLENN. Let me explain this. About 5 hours ago, Senator Boxer
sought the floor for an amendment. There was objection on the
Republican side to her bringing that up.
And she has continually sought the floor on this and tried to work
this out--tried to work out the differences with those who objected to
her amendment on the other side.
It has to do with a statement and with legislation she wanted to make
that basically deals with abortion clinics and some protection and so
on into those areas. There were some people on the other side who had
been negotiating this on behalf of five or six other Senators on the
Republican side. Because we are in a situation here where the committee
amendments are the things being considered, still technically on the
floor, only amendments to that are permitted. So she has been frozen
out, as this arrangement has not been able to be worked out. She has
thought a number of times this afternoon they had this worked out. She
was disappointed each time; it was not worked out.
We are told now, maybe after all, maybe it is now worked out so the
language in her proposal, her amendment, will now be acceptable to
those who disagreed with it on the other side.
In the meantime--because only one amendment could apply, under Senate
rules, because it is the committee amendment en bloc that we have been
working on all this time--there have been continual amendments put in
to keep her frozen out by the leadership on the other side.
That just is an explanation of exactly what has happened.
She feels, I believe now, that they perhaps are within minutes of
getting approval, I believe. I do not know whether that approval has
been forthcoming or not. They were checking once again for about the
sixth or seventh time in the last 4\1/2\ or 5 hours. That is how we got
to where we were. I think we have been referring back and forth, one
side to the other. I wanted to explain exactly what the situation was
and how we got here.
Mrs. BOXER. Will the Senator yield?
Mr. GLENN. It is not my--Senator Byrd still has the right to the
floor. He retains the right to the floor.
Mr. BYRD. No.
Mr. GLENN. I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Amendment No. 141 to Amendment No. 31
(Purpose: To express the sense of the Senate that States should not
shift costs to local governments, and for other purposes)
Mr. BRADLEY. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from New Jersey [Mr. Bradley], for himself, Mr.
Chafee, and Mr. Dorgan, proposes an amendment numbered 141 to
amendment No. 31.
Mr. BRADLEY. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
At the end of the pending amendment inserted the following:
SEC. 107. IMPACT ON LOCAL GOVERNMENTS.
(a) Findings.--The Senate finds that--
(1) the Congress should be concerned about shifting costs
from Federal to State and local authorities and should be
equally concerned about the growing tendency of States to
shift costs to local governments;
(2) cost shifting from States to local governments has, in
many instances, forced local governments to raise property
taxes or curtail sometimes essential services; and
(3) increases in local property taxes and cuts in essential
services threaten the ability of many citizens to attain and
maintain the American dream of owning a home in a safe,
secure community.
(b) Sense of the Senate.--It is the sense of the Senate
that--
(1) the Federal Government should not shift certain costs
to the State, and States should end the practice of shifting
costs to local governments, which forces many local
governments to increase property taxes;
(2) States should end the imposition, in the absence of
full consideration by their legislatures, of State issued
mandates on local governments without adequate State funding,
in a manner that may displace other essential government
priorities; and
(3) one primary objective of this Act and other efforts to
change the relationship among Federal, State, and local
governments should be to reduce taxes and spending at all
levels and to end the practice of shifting costs from one
level of government to another with little or no benefit to
taxpayers.
SEC. 108. EFFECTIVE DATE.
Mr. BRADLEY. Mr. President, the amendment I propose is an amendment I
talked about both with the majority and the minority staff. They
understand that it is a simple sense-of-the-Senate resolution. It says
very simply that this is a bill that deals with unfunded mandates of
the Federal Government on the State government, and it would be the
sense of the Senate that States should not apply unfunded mandates on
local governments that lead to increased property taxes.
Mr. President, so far in this debate, we have focused primarily on
the unfunded mandates that the Federal Government is said to impose on
the States. However, I would like to take a moment to draw the Senate's
attention to an equally important set of mandates. I am referring to
the unfunded mandates that Governors and State legislators impose on
local governments and, more important, the burden that these mandates
impose on taxpayers.
Taxpayers' main concern is their total tax burden, not how this
burden is divided among Federal, State, and local governments. As
elected officials at every level can attest, cutting taxes and
expanding services are far preferable to the converse--especially if
someone else picks up the tab. However, as we all know, the person who
ultimately picks up this tab is the taxpayer.
Mr. President, in order to address the burden that this form of cost
shifting imposes on taxpayers, I have sent to the desk a sense-of-the-
Senate resolution in the form of an amendment to this bill. This
resolution simply states that just as the Federal Government should
not, in the absence of careful consideration, shift costs to the
States,
[[Page S1048]] the States should end the practice of shifting costs to
local governments, which frequently has the effect of raising local
taxes.
When Governors and State legislators shift costs to local governments
in an effort to cut taxes and balance their operating budgets, they are
not reducing the overall tax burden; they are merely changing the
collection point. Instead, what happens is that local authorities who
have no other source of revenue are forced to either raise property
taxes or cut services. As a practical matter, however, these services--
such as fire, police, trash, and water services--are often essential to
the safety and well-being of our communities. Therefore, the effect of
cost shifting by State governments is, all too often, to increase local
property taxes.
These State-imposed mandates and the impact they have on taxpayers
are by no means inconsequential. In New Jersey, the State imposes no
less than 36 separate unfunded mandates on local governments. These
unfunded State mandates cost New Jersey taxpayers over $150 million
each year. In my State, as in many others, the main source of local tax
revenue is the property tax. In fact, local property taxes make up over
98 percent of all local tax
revenue in New Jersey. Therefore, for every dollar in costs that the
State shifts to local governments, these governments are forced to
raise property taxes by an equal amount.
In 1991, the cost of New Jersey's property taxes was over $1,250 per
person, not even per household. Since then, property taxes have only
gone up. In fact, over the last 7 years, property tax collections in
New Jersey rose over 64 percent and, this last year, property taxes
rose faster than during any year since 1990. The upshot is that in
Orange, NJ, the average homeowner saw an $800 increase in property
taxes in 1994. Sadly, these homeowners were not alone. In Mansfield,
the average homeowner saw a $600 increase in her property taxes in
1994. In Teaneck, the increase was $237; in Lyndhurst, $479; in Lodi,
$100; in Dumont, $139; and in Alpine, the average homeowner paid over
$1,000 more in property taxes in 1994 than in 1993.
Property taxes affect everyone: while homeowners pay them directly,
renters pay them indirectly. In addition, high property taxes
disproportionately affect those who are often the most at risk in our
society. For many older citizens, especially those who live on a fixed
income, high property taxes threaten their ability to remain in their
homes. For many younger, middle-class families, high property taxes
often mean that they must defer or abandon their dreams of owning a
home.
Ultimately, Mr. President, this resolution is about honesty and
responsibility. It is about honesty in how governments fund the
services that they provide. It's also about responsibility and the need
for government at all levels to take responsibility for its actions.
Government officials are loath to raise taxes. Yet, we also see
problems in our States that need to be addressed. The result, too
often, is that we pass a law, and we pass the buck. Mr. President, I am
not passing judgment on specific mandates, at either the State of
Federal level. In fact, many of these mandates have helped to ensure
the safety and well-being of our fellow citizens. Instead, I am simply
stating that if government officials, at any level, intend to pass a
new regulation, they should be honest about the cost that this
regulation will impose on taxpayers. They should not attempt to hide
the cost by shifting it downstream. Unfortunately, rather than being
honest and taking responsibility for their actions, too many government
officials appear to have signs on their desks that read, ``The Buck
Stops * * * Over There.''
In order to call attention to the need for government officials at
all levels to fully consider the impact that cost shifting has on
taxpayers, I urge all of my colleagues to vote in favor of this
amendment.
Mr. President, I am joined in sponsoring this amendment by Senator
Chafee and others.
Mr. President, I hope we will be able to get a vote on this as the
pending business before the Senate.
I am prepared to move to a vote at any time. A Senator has the right
to the floor when he is recognized, and I certainly would like to
respect the agreements that have been struck between the minority and
the majority. At the same time, when there was an open slot in the
amendment process, I took advantage of that amendment slot.
It is a very simple amendment, a sense-of-the-Senate resolution. I
hope it will be adopted. I have checked with both the minority and the
majority, and it deals simply with the issue of State unfunded mandates
on local governments leading to higher property taxes.
Mr. GLENN. I will be glad to accept the amendment on our side of the
aisle.
Mr. KEMPTHORNE. If the Senator will yield, we, too, will accept the
amendment on our side.
Mr. BRADLEY. I ask for the yeas and nays. I want a rollcall vote on
this.
The PRESIDING OFFICER. Is there a sufficient second?
There is not a sufficient second.
Mr. DOLE addressed the Chair.
The PRESIDING OFFICER. The Republican leader.
Mr. DOLE. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DOLE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Unanimous-Consent Agreement
Mr. DOLE. Mr. President, I think we have worked out an agreement. We
will have two votes back to back beginning at 7:15. The first vote will
be on the Bradley amendment. The second vote will be on the Boxer, et
al., amendment. There will be 1 hour of debate on the Boxer amendment
equally divided.
I ask unanimous consent that the Bradley amendment be temporarily set
aside so the Senator from California may be recognized and that we have
those votes back to back at 7:15.
The PRESIDING OFFICER. Is there objection?
Mr. BRADLEY. Reserving the right to object, Mr. President, I would
simply like to make the point that it is the Bradley-Chafee amendment.
Mr. HARKIN. Mr. President, reserving the right to object, if I might
inquire of the majority leader, I understand he asked unanimous consent
that we have 1 hour of debate right now on the Boxer amendment and at
7:15 vote on the Bradley amendment, then vote on the Boxer amendment
right after that, and that when we get back to the bill it will be open
for amendments at that point in time?
Mr. DOLE. I think, in fact, I would rather have the votes start at
7:30, if there is no objection. The first vote will be at 7:30 on the
Bradley-Chafee amendment and the second vote will be on the Boxer, et
al., amendment. And then it is open for other amendments. There are
numerous amendments.
Mr. HARKIN. Is it the majority leader's intention to continue the
Senate in session so we may offer amendments at that point in time?
Mr. DOLE. Yes.
Mr. BRADLEY. Reserving the right to object further, I do not intend
to object. Could we order the yeas and nays on the Bradley amendment? I
ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mrs. BOXER. Reserving the right to object, I ask for the yeas and
nays on the Boxer, et al., amendment.
The PRESIDING OFFICER. That is not in order at this time.
Mr. BYRD. Mr. President, I ask unanimous consent that it may be in
order to order the yeas and nays on the Boxer amendment.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. BYRD. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mrs. BOXER. Would the majority leader yield for a question?
The PRESIDING OFFICER. Is there objection to the majority leader's
request?
[[Page S1049]] Mrs. BOXER. Reserving the right to object, I shall
not. I ask the majority leader who is controlling the time on the
Republican side on the Boxer amendment?
Mr. DOLE. The Senator from Oklahoma [Mr. Nickles].
Mrs. BOXER. Then I will not object.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mrs. BOXER addressed the Chair.
The PRESIDING OFFICER. The Bradley amendment is temporarily set
aside.
The Senator from California is recognized.
Amendment No. 142 to Amendment No. 31
(Purpose: To express the sense of the Senate that the Attorney General
should act immediately to protect reproductive health care clinics)
Mrs. BOXER. Mr. President, I send an amendment to the desk and ask
for its immediate consideration, pursuant to the unanimous consent
request.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from California [Mrs. Boxer], for herself, Mrs.
Murray, Mr. Feingold, Mr. Kennedy, Mr. Campbell, Mr. Simon,
Mr. Lautenberg, Mr. Dodd, Mr. Baucus, Mr. Levin, Mr.
Lieberman, Ms. Moseley-Braun, Mr. Harkin, Mr. Pell, Mr.
Inouye, Ms. Mikulski, and Mrs. Feinstein, proposes an
amendment numbered 142 to amendment No. 31.
At the end of the amendment add the following:
``SEC. 108. SENSE OF THE SENATE CONCERNING PROTECTION OF
REPRODUCTIVE HEALTH CLINICS.
``(a) Findings.--Congress finds that--
``(1) there are approximately 900 clinics in the United
States providing reproductive health services;
``(2) violence directed at persons seeking to provide
reproductive health services continues to increase in the
United States, as demonstrated by the recent shootings at two
reproductive health clinics in Massachusetts and another
health care clinic in Virginia;
``(3) organizations monitoring clinic violence have
recorded over 130 incidents of violence or harassment
directed at reproductive health care clinics and their
personnel in 1994 such as death threats, stalking, chemical
attacks, bombings and arson;
``(4) there has been one attempted murder in Florida and
four individuals killed at reproductive health care clinics
in Florida and Massachusetts in 1994;
``(5) the Congress passed and the President signed the
Freedom of Access to Clinic Entrances Act of 1994, a law
establishing Federal criminal penalties and civil remedies
for certain violent, threatening, obstructive and destructive
conduct that is intended to injure, intimidate or interfere
with persons seeking to obtain or provide reproductive health
services;
``(6) violence is not a mode of free speech and should not
be condoned as a method of expressing an opinion; and
``(7) the President has instructed the Attorney General to
order--
``(A) the United States Attorneys to create task forces of
Federal, State and local law enforcement officials and
develop plans to address security for reproductive health
care clinics located within their jurisdictions; and
``(B) the United States Marshals Service to ensure
coordination between clinics and Federal, State and local law
enforcement officials regarding potential threats of
violence.
``(b) Sense of the Senate.--It is the sense of the Senate
that the United States Attorney General should fully enforce
the law and protect persons seeking to provide or obtain, or
assist in providing or obtaining, reproductive health
services from violent attack.
``(c) Nothing in this resolution shall be construed to
prohibit any expressive conduct (including peaceful picketing
or other peaceful demonstration) protected from legal
prohibition by the First Amendment to the Constitution.''
Mrs. BOXER. Mr. President, I took the unusual step of having the
clerk read this resolution in full because I think that it very clearly
says more than anyone could express, because it took a lot of time and
a lot of people's help, that there is no place for violence in our
society and that we must come together as a U.S. Senate when such
violence occurs and speak with one voice.
The reason I have been so persistent for these past 2 weeks is
because I feel it is essential that this U.S. Senate, the most
deliberative body in the world, the one with the most magnificent
traditions of debate, thought, of deliberation, that we take the time,
even if it means setting aside some other business, to deal with an
immediate issue.
We are working on the unfunded mandates bill. It is very complicated.
It is very complicated. I happen to like the notion behind it. But as I
look at some of the bureaucracy that may be created as a result of it,
I have some pause. As I look at whether or not illegal immigration
might be covered in it, I have some pause. As I look at its impact on
children and pregnant women, the frail and elderly, on child
pornography laws, child abuse laws and child labor law, I have some
pause.
So it is a very complicated piece of legislation. But what is not
complicated, Mr. President, to understand is that there is violence in
our land and it takes many forms. If there is one area in which I
believe I should make a contribution, it would be in the area of
violence in America--whether it is on our streets, whether it is in the
homes, whether it is in schools, wherever it occurs, including
reproductive health care clinics. I have made many statements
throughout this day and last week and before that on the history of
violence at clinics. And so I have been pursuing a very clear sense of
the Senate that the Attorney General should act fully and enforce the
law and protect the decent, law-abiding citizens of this land, who
happen to be in or around health care clinics.
I want to say that the manager of the bill, the Senator from Idaho,
has been most gracious to me. I want to say that he has understood
quite clearly how deeply I felt about this issue, and he has made every
effort to bring about a resolution to my problem which, clearly stated,
was I could not find a way, Mr. President, to bring this up before the
body until an agreement was worked out.
The majority leader, Senator Dole, was very straightforward with me.
He said, ``You need to work this out and then we will bring it up. But
if you do not have an agreement with my side, we are not going to bring
it up.'' Obviously, that set up somewhat of a problem for me.
I want to thank the Senator from Oklahoma [Mr. Nickles] and I want to
thank the Senator from Indiana [Mr. Coats] for working with me, with
Senator Murray, and with many of the people who wrote the FACE bill, to
come up with an acceptable resolution, which has just been read to the
U.S. Senate.
I want to particularly thank the cosponsors of my bill. The bill that
I introduced was one of the first pieces of legislation condemning this
violence, which included three Republican Senators--Senators Snowe,
Chafee and Jeffords. I want to thank them very much. And I thank my
original cosponsors who were there the day I introduced the bill,
Senator Murray and Senator Feingold. The other Senators who are
cosponsors are Senators Kennedy, Campbell, Simon, Lautenberg, Dodd,
Baucus, Levin, Lieberman, Moseley-Braun, Harkin, Pell, Inouye,
Mikulski, Feinstein, Kerry, and Bradley. And today Senator Reid and
Senator Wellstone were added to that list.
I am very proud that we have reached an agreement so that the will of
25 Senators who believed in this enough to go on this bill will get
some attention.
At this time, I will yield to the Senator from Washington, Senator
Murray, 10 minutes.
Mrs. MURRAY. Mr. President, I thank my colleague from California, who
has been very persistent on this issue and deserves a great deal of
gratitude and credit from all of us for insisting that we bring before
us this very important sense of the Senate that speaks to the violence
that has been occurring at reproductive health care clinics in this
Nation.
We are all aware of the violence that has ravaged neighborhoods
throughout our Nation. And I have to tell you every time kids gather in
my kitchen or I talk to my next door neighbors or my parents, the first
words out of their mouths is not unfunded mandates or line-item veto,
it is: ``What are you going to do about the issue of violence in this
country?'' They tell me they fear walking in their neighborhoods, fear
going to their schools, and they want to know what we are going to do.
Well, the campaign of terror that is being perpetrated against
doctors and patients in reproductive health clinics is a frightening
example of this violence. The message that this violence sends to our
children--that the world is a frightening place--is intolerable. When
they see a gunman at a clinic, it reinforces in their minds that this
[[Page S1050]] world is not a safe place. It is incumbent upon us as
the elected leaders in this Nation to tell our children that we will do
all we can to make sure that their world is safe.
I read yesterday's Washington Post and was very struck by the article
that appeared. I ask unanimous consent that this article be printed in
the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Washington Post, Jan. 17, 1995]
Clinic Killings Follow Years of Antiabortion Violence
(By Laurie Goodstein and Pierre Thomas)
Militant antiabortion activists have been waging a
protracted campaign of violence against women's health
clinics and the people who work in them over the past decade,
creating a climate of terror long before a gunman opened fire
last month at clinics in Massachusetts and Virginia.
The killings of two doctors, two clinic staff members and a
voluntary escort over the past 22 months have captured
national attention. But the tally of violence over the past
12 years includes 123 cases of arson and 37 bombings in 33
states, and more than 1,500 cases of stalking, assault,
sabotage and burglary, according to records compiled by the
Bureau of Alcohol, Tobacco and Firearms (ATF) and the clinics
themselves.
``We have seen a consistent pattern, acknowledging the fact
that people are willing to go to any means for their cause,''
said Ralph Ostrowski, chief of ATF's arson and explosives
division. ``In the past we would have acts of violence
directed at property. Now we see acts of violence directed at
people.''
Nearly all antiabortion leaders say they are aware of the
scope of the violence and have condemned it, and say no one
in their groups is associated with such tactics. They
describe the violence as an aberration.
``There is not this collective soul-searching on the part
of our movement because we have been responsible and we have
been non-violent,'' said the Rev. Patrick Mahoney, director
of the Christian Defense Coalition. There are ``extremists in
every movement. . . . I think that extremists opposed to
abortion got frustrated, felt they were losing the battle and
felt it
was incumbent upon themselves to resort to violence.''
The Rev. Flip Benham, director of Operation Rescue, went
further and accused ``those in the abortion-providing
industry'' of committing most of the violence in an attempt
to discredit the antiabortion movement. He should he would
soon bring evidence to Washington that would undermine the
government's statistics.
However, ATF spokeswoman Susan McCarron said of the 49
people prosecuted so far, ``We found that all expressed
antiabortion views. There is nothing in our cases that would
show it's providers or supporters of abortion that are doing
these acts, but we investigate all leads.''
Immediately after hearing the news of the killings last
month in Brookline, Mass., Cardinal Bernard Law, archbishop
of Boston, issued a statement asking for a moratorium on
protests at abortion facilities. But his plea has been
rejected by other prominent figures across the spectrum in
the antiabortion movement--including Benham, Cardinal John J.
O'Connor of New York and Judie Brown of the American Life
League.
Like many other antiabortion leaders interviewed, Benham
said he sees no connection between angry rhetoric and violent
action. ``This whole thing isn't about violence. It's all
about silence--silencing the Christian message. That's what
they want,'' Benham said of abortion rights leaders. ``They
screech and scream about us crying fire in a crowded theater.
And I agree it is wrong, unless there is a fire. If there's a
fire in that theater, we better call it that. Our
inflammatory rhetoric is only revealing a far more
inflammatory truth.''
In most cases, the violence has disrupted clinics where a
large portion of staff time is devoted not to abortions but
to routine women's reproductive health care--pap smears,
teaching and supplying birth control methods, and treating
sexually transmitted diseases. Phone calls to a dozen clinics
targeted by the violence found that six of them did not even
provide abortion services.
At the Women's Pavilion Clinic in South Bend, Ind., which
does perform abortions, in recent years somebody has hacked
holes in the roof with an ax, shot out the windows and sent
repeated death threats to gynecologist Ulrich Klopfer by
phone and mail, said Marni Greening, the clinic's director.
Meanwhile, protesters with a group called the Lambs of Christ
have regularly barricaded the doors and blockaded the
driveway, undeterred by repeated arrests.
In the early hours of Mother's Day 1993, someone connected
a hose to the clinic's outdoor spigot and fed it through the
door's mail slot, flooding the clinic's entry room. The
person or persons then poured in butyric acid, a nearly
indelible substance that smells like feces and vomit and
becomes more potent in water. The clinic had to shut down for
7\1/2\ weeks to get rid of the smell, Greening said.
The unrelenting and unpredictable nature of the violence
has produced a resolute fatalism among the staff. Klopfer
said he was shot at last week as he drove home from work. He
reported it to federal marshals, but, he said: ``If it's
going to happen, it's going to happen. I'm realistic enough.
Look at all the people shooting up the White House, and that
has a hell of a lot better security than I do.''
Owners of the Hillcrest Clinic in Norfolk, where John C.
Salvi III allegedly fired about 23 shots, sustained $250,000
worth of damage in an arson case in 1984 and another $1,000
in damage in a bombing in the next year. Staff members there
have stopped commenting about attacks.
At the Planned Parenthood clinic in Lancaster, Pa., clinic
director Nancy Osgood remembers a 3 a.m. phone call in
September 1993 when she rushed to the clinic in time to see
the brick building smoldering, gutted by fire. The Lancaster
facility does not perform abortions, although other Planned
Parenthood clinics do.
No suspects have been arrested in that arson, although
national abortion rights groups offered a $100,000 reward for
tips on this and other crimes. ``Finally we have national
leadership talking about this being domestic terrorism. We've
said that for years,'' Osgood said.
ATF agents have arrested 49 people
in 77 of the bombing and arson cases. Thirty-three cases
have been closed because they have exceeded the statute of
limitations. The 50 cases still under investigation
include an arson at the Commonwealth Women's Clinic in
Falls Church last July 31.
Damages range from $150 at a Brooklyn N.Y., clinic that was
the target of two Molotov cocktails in 1993, to $1.4 million
caused by an arson fire at Family Planning Associates in
Bakersfield, Calif., in September of the same year. The total
damage to property amounts to more than $12 million.
A federal task force of officials with the ATF, FBI, U.S.
marshals and lawyers from the Justice Department's criminal
and civil divisions was created in 1993, and stepped up its
efforts after Paul D. Hill shot to death two people at a
Pensacola, Fla., clinic last July. A grand jury is currently
hearing evidence in Alexandria.
Authorities are focusing on whether there is a national
conspiracy, although some officials privately note they have
not found evidence to support that at this stage in the
investigation. Several law enforcement officials say it is
more likely they will find separate conspiracies conducted by
small cadres of activists, as well as campaigns carried out
by individuals.
Some of the incidents match the description of tactics in
``The Army of God'' manual that law enforcement officers
found buried in the yard of Rochelle ``Shelly'' Shannon, an
Oregon activist convicted of shooting Wichita doctor George
Tiller, and awaiting trial on eight counts of arson at
clinics in several states.
``Annihilating abortuaries is our purest form of worship,''
the manual says. It gives explicit instructions for home-
brewing plastic explosives, fashioning detonators,
deactivating alarm systems, and cutting phone, gas and water
lines.
Some federal investigators suspect that there is no
organized ``Army of God.'' They believe the manual has not
been widely distributed, but may have provided guidance in
several cases of arson, bombing and sabotage. The butyric
acid attack on the Women's Pavilion in South Bend precisely
matches tactics described in the manual.
After the recent shootings in Massachusetts, in which two
clinic receptionists were killed and five people
wounded, the Justice Department ordered federal officials to
record every threat against clinics and their staffs, and
began to enforce the civil provisions of the Freedom of
Access to Clinic Entrances (FACE) law. Enacted last year,
the law makes it a federal crime to physically block
access to clinics, damage their property or injure,
interfere with or intimidate their staff or patients.
Last week a federal judge in Kansas City, Mo., used the
civil provisions of the FACE law to issue a temporary
restraining order against Regina Rene Dinwiddie for
threatening and intimidating staff and clients at the Planned
Parenthood of Greater Kansas City clinic.
Antiabortion protesters say the law is being used to limit
their freedom of speech. But federal officials are beginning
to crack down on the death threats that have become
increasingly common. There were about 400 death threats and
bomb threats logged in 1994 alone.
On Jan. 7, signs were found posted at four clinics in Long
Island saying, ``Danger: This is a War Zone. People are being
killed here like in Boston. You risk injury or death if you
are caught on or near these premises,'' said Karen Pearl,
executive director of Planned Parenthood of Nassau County.
The threats follow clinic staff members to their homes and
neighborhoods. Carolyn Izard, a nurse and clinic director at
Little Rock Family Planning Services in Arkansas, arrived
home one day to find her neighborhood was papered with fliers
calling her a ``death camp worker.''
``It backfired on them,'' Izard recalled. ``I got calls
from neighbors that told me that they supported me 100
percent and they were furious that this kind of brochure was
left on their doors for their children to see.''
Curtis Stover has seen a dramatic change in the protesters'
behavior in the 21 years he's performed abortions in Little
Rock. ``Before, all they would do is quietly carry placards
around and not do much,'' Stover said. Now, ``every other
sentence is full of
[[Page S1051]] the word `murder.' Patients come in and they
yell at them not to murder their babies. I've had picketers
tell me I was going to die by a certain date.''
Mrs. MURRAY. In the first paragraph it says:
Militant antiabortion activists have been waging a
protracted campaign of violence against women's health
clinics and the people who work in them over the past decade
* * * The tally of violence over the pass 12 years includes
123 cases of arson and 37 bombings in 33 States, and more
than 1,500 cases of stalking, assault, sabotage and burglary,
according to records compiled by the * * * ATF and the
clinics themselves.
I think it is high time this Senate goes on record that we do not
condone these acts of violence.
Women's health care providers across the Nation are facing bombings,
arson, kidnappings, and assaults. As they go to work each day, these
health care providers must contemplate the possibility that an
antichoice extremist will try to kill them. The shootings at clinics in
Massachusetts and Virginia are only the most recent examples.
One doctor in my State of Washington wrote to me recently and said:
Every time I walked toward the building, I thought to
myself that some antichoice terrorist could have set a bomb
and that my life could be on the line. Fortunately, so far I
have been able to work unimpeded, but with every assault on a
clinic around the country, I worry about the safety of my
staff as well as that of my patients. The next time a gun is
fired, it could well hit a patient or staff member. The
psychological toll all this takes on clinic staff is
enormous, as you can well imagine.
I ask my colleagues to step back and view this issue as a parent.
That is how I view it. I have a young daughter and I cannot express the
fear that I have that perhaps some day if the horrible should happen
and my daughter is raped, that not only should she have to go through
the trauma of an abortion, but she would have to fear for her life when
she attempts to get access to safe health care.
The same article that appeared in the Washington Post yesterday has
an important paragraph that we must also remember.
It says:
In most cases, the violence has disrupted clinics where a
large portion of staff time is devoted not to abortions but
to routine women's reproductive health care--pap smears,
teaching and supplying birth control methods, and treating
sexually transmitted diseases.
Let us remember that women go to these clinics for pap smears as
well. Their lives have been endangered, and we need to protect them.
Last year, Congress passed the Freedom of Access to Clinic Entrances
Act and the President signed it into law. The law outlaws clinic
violence while protecting lawful picketing and lawful protests not
accompanied by force, threat of force, or physical obstruction.
Mr. President, I fully support our first amendment rights under the
U.S. Constitution. However, with the Freedom of Access to Clinic
Entrances Act we properly acknowledged that violence is not a mode of
free speech. It is time for all of us, no matter how we feel about the
issue of abortion, to let our Nation know that we will not tolerate
violence as a means of protest.
I am proud to cosponsor this sense-of-the-Senate resolution urging
the Attorney General to fully enforce the law. And I urge my colleagues
to support it as well. Again, I thank my colleague from California,
Senator Boxer, and I yield back my time to the Senator from California.
Mr. KEMPTHORNE. Mr. President, I would like to yield 10 minutes to
the Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I thank my colleague from Idaho for
yielding me 10 minutes.
This is an important amendment, Mr. President, because it is a
forceful condemnation against violence. It might be thought unnecessary
to condemn violence because it is so obvious that violence is the major
problem in the United States today, with the crime wave, and the major
problem in the world with conflicts and wars going on all around the
world. But it is important to have this forceful condemnation against
violence, because people are standing up and saying that these acts of
violence, these acts of murder, are justifiable homicide, which is an
absolute absurdity under the law.
The distinguished Presiding Officer has been a law enforcement
officer, an attorney general of Missouri. This Senator spent 12 years
in the Philadelphia District Attorney's Office--4 years as an
assistant, trying murder cases, robbery, rape, and arson cases, and
then 8 years as district attorney of an office which handled 30,000
criminal trials a year and some 500 homicide cases.
There is no justification whatsoever for saying that murder is
justifiable homicide when it is related to someone who performs an
abortion.
Under the laws of the United States, Roe versus Wade and Casey versus
Planned Parenthood, there is a period during which this is lawful
conduct, and how anyone can say that it is justifiable homicide is an
absolute absurdity.
I thank the Chair for nodding in agreement, because I make a point
which is very obvious to anyone who has had any experience in law
enforcement and, beyond that, to any thinking American. But in
newsprint today, stories are carried about people who make this
contention. And some of the public opinion polls show a response --one
poll showed 3 percent of the people have this idea. It should be
labeled as emphatically as possible that it is an absurdity.
When the Senate of the United States speaks out, as I am confident
the Senate of the United States will speak out tonight, in condemning
this kind of violence, it will make an impact. This condemnation should
ring from every speaker in America who has an opportunity to speak out,
from the President of the United States, to Members of the House, to
Members of the Senate, ministers, priests, and rabbis from the pulpit,
and anywhere anyone can make a speech.
It is atrocious when you think of 130 incidents of death threats,
stalking, chemical attacks, bombings, arsons, attempted murder, to say
nothing of the four murders which have been perpetrated and the fear
that is being created at 900 health clinics around the country.
The point has been made, but it is worth reinforcing, that the
majority of activities at these clinics do not involve abortion at all.
The Appropriations Subcommittee on Health and Human Services, which I
chair, will have a hearing on the range of medical services which are
performed. As already mentioned: Pap smears, mammograms, other health
services for women. These women are being terrified.
The resolution calls for the creation of task forces and coordination
by U.S. Marshals Service; that is fundamental to help law enforcement,
to have the agencies of the law work together.
There are substantial funds available at the present time; more than
$1 billion available to local prosecutors on applications which would
be made. I think that the Department of Justice would look very
favorably upon applications which were made along this line.
There is also considerable funding in the crime bill to protect women
against violence. So funds are available in additional amounts.
The final part of resolution, stating that, ``It is the sense of the
Senate that the United States Attorney General should fully enforce the
law and protect persons seeking to provide or obtain, or assist in
providing or obtaining, reproductive health services from violent
attack,'' is just very, very fundamental.
Not that it is necessary, but there is an additional clause which
protects first amendment freedoms of expression.
I think Cardinal Law in Boston was right on target when he made a
plea to desist from any conduct which could be remotely connected with
inciting violence at these clinics. First amendment freedoms have to be
protected so that people can speak up.
I think that it is a very, very important statement to have this kind
of a forceful condemnation against violence, especially in the context
where so many people are absurdly talking about justifiable homicide.
I urge my colleagues to have the strongest conceivable vote in
support of this important resolution.
I thank the Chair and yield the floor.
Mrs. BOXER addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I yield as much time as she may consume
to
[[Page S1052]] the Senator from Maryland [Ms. Mikulski] who was a very
early sponsor of this resolution.
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Ms. MIKULSKI. I thank the Chair.
I thank Senator Boxer for yielding me time.
Mr. President, I rise today to speak in favor of the Boxer sense-of-
the-Senate resolution. I join Senator Boxer and the other cosponsors in
expressing our outrage at the recent killings of clinic workers in
Massachusetts.
I wish to thank my colleague from California for offering this sense-
of-the-Senate resolution. I am only sorry that we were not able to
bring this to the floor in a more timely fashion. But her steadfastness
in pursuing our right to speak up, speak out, and vote on this issue is
really to be a source of kudos to her.
When we come to the content of this resolution, we have to say that,
sadly, this is not the first time we have come to the floor to express
our outrage at senseless killing of health care providers. That is what
we are talking about--health care providers. We came to the floor when
the antiabortion extremist Paul Hill shot and killed Dr. Gunn. We were
here when Dr. John Britton and Lt. Col. James Barrett were brutally
murdered in Pensacola. And we are here again tonight to decry the
deaths of Shannon Lowney and Leanne Nichols and the five other
individuals who were seriously injured earlier this month.
The killing must stop, and it must stop now.
It is no longer simply a protest against abortion. Peaceful protests
have given away to extremism. Protest has turned to violence. This is
not the American way. The United States of America, through its
Constitution, provides people the opportunity to speak out, to have
dissenting views, and to do it in an atmosphere that is protected by
law. But, unfortunately, that is not where we are now.
For those physicians and other people who work at the Planned
Parenthood clinics, doctors are being forced to wear bulletproof vests.
This is the United States of America. A doctor, instead of putting on a
white lab coat, must put on a bulletproof vest to meet the compelling
needs of his patients; clinics are being forced to build fortresses to
protect their staff; patients are being forced to use escorts to get
into the clinics. And even with all of these precautions, the killings
continue.
I cannot tell you how saddened I am by this. Women in this country
are being sent a message that they risk their lives if they seek
reproductive health care. Let me repeat that. In the United States of
America, women risk their lives if they seek reproductive health care.
That is an injustice.
Last year, this body adopted a rule of law--it was called the Freedom
of Access to Clinic Entrances Act--to put an end to this violence. But
the success of this law now rests with the Attorney General. I believe
she has taken important steps to enforce this bill.
But the Attorney General must take all necessary steps to ensure that
not one more health care worker loses his or her life in a facility
that happens to perform abortions. The Attorney General must do all
that can be done to see that no more individuals are injured, maimed or
murdered. She must enforce the law so that individuals are protected
from violent attack.
Every effort must be made to stop the terrorism that reproductive
health clinics and their staffs endure. The message must be clear: That
these attacks will be met with the harshest response. And the message
must be clear to the opponents of the freedom to choose, that this type
of extremism will not be tolerated, and it is not American.
The violence has gone too far. It is time to return to civility, to
decency, to the principles on which this country were founded. A woman
should not be at risk of losing her life to get the health care she
needs.
Let me say this about protests. In the United States of America
people can protest. When we passed the Freedom of Access to Clinic
legislation, we ensured that nonviolent peaceful protests be allowed to
occur. Mr. President, I am in politics because I was a protester, a
nonviolent protester who organized her community out of the basement of
St. Stanislaus Church to protest the highway, a 16-lane highway, that
was going to sweep through my neighborhood, taking the homes of older
European ethnics, and the first black home ownership neighborhood in
Baltimore.
So I know what it is like to be a nonviolent protester, to organize
people in a way that is joyful, exciting, creative. Know what we did?
We did not go out and beat a mayor up. We did not bomb the Secretary of
Transportation. We held a festival. We held a festival to show what our
neighborhoods were. And in that neighborhood where I now live and
commute from Baltimore every day, stands the neighborhood that I helped
save.
And by being a protester the people did not punish me. They rewarded
me and sent me to the Baltimore City Council, from there, the House of
Representatives, and then to be here in the U.S. Senate.
For everyone in the United States of America whose views I either
agree or disagree with, I want to guarantee them the right of continued
nonviolent protest. So the words of Gandhi, Martin Luther King, and
that methodology is there. We are acting like these are the Bull
Connors of reproductive freedom. In the old days those who were against
civil rights bombed churches, killed children; Bull Connor turns the
fire hoses on them. This is the same thing.
So, now, we have to stop that. We have to stop it with the law. Why
do women go to these clinics? Who goes? They are ordinary women, many
of whom who have no health insurance. They have bad backs, they have
varicose veins, and they want to see a doctor. And their GYN is their
primary care physician. That is what they want to go there for, general
primary care, information about reproductive freedom, and some, because
of either medical necessity or medical appropriateness, will have an
abortion. That is why they go.
I call upon the religious leaders of this country to speak out
against this. I call upon the Attorney General of the United States to
enforce the law. Tonight I call upon the U.S. Senate to pass the Boxer
resolution. Let us make sure that America is the land of the free.
Mr. KEMPTHORNE. Mr. President, I yield 5 minutes to the Senator from
Maine.
Ms. SNOWE. I thank the Senator for yielding.
Mr. President, as someone who is deeply committed to ensuring choice
and quality of women's health I certainly rise in strong support of the
amendment that has been offered by the Senator from California. I,
first of all, want to also thank and commend the Senate majority leader
for ensuring the consideration of this amendment during the
deliberations of unfunded mandates. This issue is very timely. It is a
matter of life and death, when we consider what has happened in
abortion clinics all over America. I am pleased we are able to consider
this resolution. I am sorry it is under the circumstances under which
we are considering it in light of what happened in Brookline, MA, with
the recent killings.
This amendment is appropriate because it expresses the sense of the
Senate that the U.S. Attorney General should fully enforce the law. The
Attorney General must use all the tools at her disposal to protect
persons seeking to obtain or provide reproductive health services from
violent attacks. We have seen in recent months, regrettably and
tragically, an alarming trend toward violence and terrorism against
reproductive health clinics. Too often, those extremists who oppose a
woman's right to reproductive health have resorted to intimidation and
even violence in order to prove their point. Peaceful civil
disobedience is one thing, but these acts have far crossed the line of
acceptable behavior.
We are a nation that prides ourselves on our diversity, diversities
of views, ideas, and values. As a nation of laws we simply cannot and
we simply will not tolerate cold-blooded murder. Nor can we tolerate
bombings, vandalism, assault, bombings, arson, destruction of property,
and the physical prevention of people from entering medical clinics.
Yes, we are a nation of diversity, and that diversity depends first
and foremost on our adherence to the laws
[[Page S1053]] made by our elected representatives of the people. It is
this fact that distinguishes our democracy from other forms of
government and that has contributed over time to our Nation's peace and
prosperity.
Last year, as we all know in response to many of these tragic
incidents, the 103d Congress considered, deliberated, and enacted the
freedom of access to clinic legislation. As a Member of the House of
Representatives, I was an original cosponsor and worked with many of my
colleagues on both sides of the aisle in both bodies in this
institution, in order to ensure that it became the law of the land.
This new law makes it a Federal offense to block the entrance to a
medical clinic offering reproductive services, and to use force or the
threat of force to intentionally interfere with or injure anyone
attempting to obtain or provide reproductive services. The Supreme
Court has made clear that these rights of peaceful protest do not
extend to threats and violence, as made clear in recent decisions. In a
6 to 3 ruling last June the Supreme Court ruled in the case of Madsen
versus Women's Health Center that restrictions of protesters were
constitutional, including the establishment of a buffer zone between
the clinic entrance and elsewhere.
In 1993, the court filed a unanimous opinion in the case of Wisconsin
versus Mitchell, a hate crimes case. The Court held that physical
assault was not among the forms of allowable ``expressive conduct,''
and decried violence as a form of civil disobedience. But the terrorist
acts at medical clinics in the past months have crossed the lines of
peaceful disobedience, and they mark the beginning of an alarming
trend.
According to the National Abortion Federation, 61 percent of
nonhospital abortion providers report being the target of some form of
harassment including personal harassment of themselves and of their
families away from the facility. From 1977 to 1983 there were 149
incidents of violence against health clinics. Since then, reproductive
health providers have reported almost 1,500 acts of violence. Not
always shootings, not only in Norfolk and Brookline, but also
kidnapping, burglary, arson, telephone threats, stalking, invasion, and
vandalism.
In 1994 there were over 130 incidents nationwide of violence or
harassment directed at clinics and the people who work there. In the
horrifying shootings of Brookline, MA, which resulted in the tragic
deaths of two women are clear indication that the violence is
continuing. As many others have indicated here this evening, what kind
of clinics have been targeted for the terrorist tactics? Clinics which
provide not just reproductive health services, but clinics which
provide essential pediatric care, prenatal care, childhood
immunization, diagnosis and treatments of STD's, contraceptive
services, mammograms, Pap smears and other forms of counseling for
women. In fact, more than 90 percent of clinics provide these health
services in addition to reproductive health services.
In my home State of Maine, Mr. President, medical clinics and
physicians have been targeted. So far, thankfully, without the life-
threatening violence that occurred in Brookline.
The PRESIDING OFFICER. The 5 minutes allotted have expired.
Mr. KEMPTHORNE. Mr. President, I would be happy to yield 3 additional
minutes.
Ms. SNOWE. Three physicians at the Penobscot Bay Women's Health
Center in Rockport, ME, decided to cease offering full services because
of concern for the safety of patients and the staff after 3 years of
protests.
After a week of picketing and threats, Dr. Gregory Luck chose to
close the medical clinic in Falmouth, ME, offering a full range of
women's health services that has been opened for more than 10 years,
rather than risk violence against his patients and staff. Dr. Luck, in
closing his practice, said he could not guarantee the safety of his
patients. Women, he said ``have been subjected to harassment
irrespective of whether they planned to visit my office or any other
office and irrespective of what medical service they required,'' he
said in announcing the decision.
As we have seen in U.S. News & World Report this week, it says
``physicians under fire,'' having to wear bullet-proof vests, and
carrying guns and weapons to protect themselves, to provide for the
safety of their employees. It is regrettable in this country we have
reached this point in time.
Mr. President, safe, affordable and accessible reproductive health
services are crucial to the well-being of women. We must send a message
to would-be terrorists that violence and threats of violence and
vandalism at these centers will not be tolerated and will be punished
under the fullest extent of the law.
Congress needs to act on behalf of the families and friends of those
who have tragically died because of their belief in a woman's right to
decent medical services. Congress needs to act on behalf of low-income
women who depend on such clinics for their personal health needs, the
rural woman who already faces burdens and barriers to access, but most
importantly, for all women and their families who depend on safe access
to the health care that they need and that they deserve.
So I urge my colleagues to support this very important amendment.
Again, I want to thank the Senator from California and the Senator from
Idaho for yielding me this time.
I yield the floor, Mr. President.
Mrs. BOXER addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, will you inform me as to how much time I
have remaining on my the side?
The PRESIDING OFFICER. The Senator has 17 remaining minutes.
Mrs. BOXER. If the Senator from Illinois is interested, I can yield
her 5 minutes at this time. I yield the Senator from Illinois up to 5
minutes at this time.
The PRESIDING OFFICER. The Senator from Illinois.
Ms. MOSELEY-BRAUN. Mr. President, I want to commend and congratulate
Senator Boxer for this initiative, and I hope this body, in a
resounding unanimous vote, makes it clear that we condemn in the
strongest terms the violence that has occurred, the extremism that has
occurred, and the taking of innocent life as a form of protest by any
group in this country.
The Congress, I believe, must send a clear, unequivocal signal that
this country will not tolerate the use of terror, violence, and murder
to express disagreement with the current laws relating to abortion.
Whether one supports abortion or not--and I have made it clear and,
in fact, my colleagues and I sometimes have a minor disagreement on
this point, that I do not personally support abortion. I do, however,
in the strongest terms support the right of a woman to choose to have
an abortion. I do not believe that it is the Government's role to
intervene itself and interpose itself in so personal and private a
moral decision as to whether or not to carry a child to term. I believe
that that is an issue that women, of whatever stripe, have to maintain
as a matter of fundamental constitutional liberty, and the Supreme
Court of the United States, in Roe versus Wade in 1973, agreed with
that point of view.
Within the parameters, it recognized a woman's right under the
Constitution to control her body, a woman's right to choose to have an
abortion. For those of us who are not pro-abortion but rather are pro-
choice, it becomes a distinction that is a very important one. It means
that Government must, on the one hand, keep its hands off women's
bodies; Government must, on the one hand, continue to preserve the
liberties and freedoms that women have to decide whether or not to be
parents. But at the same time, Government has an obligation and a
responsibility to protect people in the exercise of their legitimate
rights under the Constitution of this country.
That is what is at issue here: That we have legitimate rights that
have been established under the law in this country, and the question
is whether or not in these United States the rule of law will
predominate or whether or not we will allow ourselves to be dictated to
and controlled by extremists and, indeed, extremists who become
murderers.
The murders that occurred most recently are horrendous, horrendous
[[Page S1054]] acts. I believe every person of conscience should, in
the strongest terms, condemn that violence and condemn murder,
certainly as a way of expression. That is not an expression of one's
free speech. That is not anything but plain--it is what it is, which is
murder. We must always be clear that if we are concerned about life, if
we celebrate and want to protect life, then we have to stand four
square with those who are exercising their right to live and exercising
their rights under this Constitution.
And so since this country has the rule of law and not the rule of
individuals who will enforce their point of view from the barrel of a
gun, since that is the rule of law in this country, I believe that in
this Senate it is appropriate to stand up for that right and for this
Senate to express in the clearest terms that we condemn extremism, we
certainly condemn murder, and we condemn any effort to interfere with
someone's exercise of rights they enjoy under the Constitution of this
country.
Local police must make the enforcement of the Freedom of Access to
Clinic Entrances Act, which we passed last year in a bipartisan vote,
an absolute priority of theirs. Our Justice Department, I believe, has
every obligation to look into the network of individuals who are
extremists in this area and who could deprive Americans, and
particularly women, of their rights not only to choose abortion, but to
choose appropriate health care, to choose to get counseling, to choose
to go to places where they can receive physical care for their
condition.
These clinics provide a lot of different services, as has been
pointed out by previous speakers. It is not simply a place where one
might go for abortion services. Indeed, if anything, one of the real
concerns is that these clinics may be less capable of providing
counseling against the transmission of AIDS, against the transmission
of disease; that they will not be able to play the public health role
that they are uniquely situated to play because of the intimidation,
because of the violence, and because of the extremism.
When that extremism reaches the fever-pitch point that it has now, I
think it is altogether appropriate for those of us in this body to
stand up for the rule of law, to stand up for the right of women to
choose and to make their own decisions about their private health care,
and to make it very clear that we condemn in the strongest terms the
violence that has occurred.
That is the purpose of the sense-of-the-Senate resolution that has
been filed by Senator Boxer and of which I am a cosponsor, and that is
certainly the initiative behind this sense-of-the-Senate resolution. I
call on all of my colleagues, whether you are pro-choice or pro-life,
to support the Boxer amendment. Thank you.
Mrs. BOXER addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mr. KENNEDY. Mr. President, I strongly support this amendment. The
Senate must go on record unequivocally to condemn the use of violence
against abortion providers, and to call on law enforcement authorities
to do everything in their power to prevent such violence and protect
citizens from it.
The most recent deadly assaults occurred at two clinics in Brookline,
MA, on December 30. Two women who worked as receptionists at the
Brookline clinics had their lives brutally cut short. Five other people
were seriously wounded. My heart goes out to these victims and their
families.
This kind of vicious, hateful assault against women and health care
providers cannot be tolerated in any community in America. No effort
can be spared to make sure that these despicable crimes are not
repeated anywhere else.
Women must be able to seek reproductive health care without fear of
violent assault. Doctors should be able to practice their profession
without wearing bullet-proof vests. Clinic staff should be able to go
to work each day in safety.
Abortion is a constitutionally protected right, and it must be safe
and accessible. Last year, Congress passed the Freedom of Access to
Clinic Entrances Act with broad, bipartisan support, and President
Clinton signed it into law.
That law gives the Attorney General the tools she needs to prevent
violence and obstruction and to punish such acts whenever and wherever
they occur with the full force of Federal law.
The Justice Department has already brought several enforcement
actions under this law, and it is actively investigating other possible
violations. In addition, the Attorney General has directed U.S.
attorneys around the country to coordinate a joint effort by Federal,
State, and local law enforcement authorities to ensure that clinics and
providers in every community are adequately protected.
Some have suggested that the new Federal law is somehow responsible
for fomenting violence at abortion clinics, because it allegedly closes
off peaceful picketing as an outlet for those with strongly held views
against abortion. Any such suggestion is nonsense.
The clinic access law does not prohibit or punish peaceful picketing
or any other expression protected by the first amendment. On the
contrary, it specifically permits it. What the act prohibits is
violent, threatening, obstructive, or destructive conduct--none of
which has ever been protected by the Constitution. For that reason, all
of the Federal courts that have reviewed the law since President
Clinton signed it last year have upheld it. Tough laws against clinic
blockades and clinic violence are not the problem. They are the
solution.
I commend President Clinton and Attorney General Reno for their
vigorous enforcement of the new Federal law, and for their commitment
to work with State and local law enforcement authorities to protect
clinics throughout the country. We must do everything in our power to
guarantee public safety and prevent the use of violence against
patients and providers.
It is a privilege to join Senator Boxer in urging adoption of this
amendment. I hope that every Member of the Senate will vote in favor of
this important measure.
Mr. KERRY. Mr. President, I am honored to join my colleague from
California in proposing this important piece of legislation expressing
the outrage of this body over abortion clinic violence.
No matter what our views on abortion might be, I am sure that every
decent American mourns the senseless murders that have been committed
at abortion clinics.
On the first day of this session, I rose to discuss the broad
implications of abortion clinic violence. I would like to reiterate
some of the points that I made at that time.
I am deeply saddened that my State has joined others that have seen
the horror and felt the pain of this senseless violence.
The Friday morning before New Years Eve, at 10 a.m., Shannon Lowney,
a 25 year old activist working as a receptionist at a clinic in
Brookline, MA, looked up and smiled at a man who had just walked into
her office. It was John Salvi.
He pulled a collapsible Ruger rifle from his bag--aimed it at
Shannon--and fired at point blank range. He killed Shannon and wounded
three others.
And now, in mourning her death, we ask ourselves: Who was Shannon
Lowney and what did her life show us?
Her friends called her ``Shanny'' and she was a caring, committed
young woman who represents the best of her generation. She cared about
people. She tutored Spanish-speaking children in Cambridge, helped poor
villagers in Ecuador, worked with abused children in Maine, and last
week she finished her application to Boston University for a masters in
social work.
She was one of those rare people who confronted injustice and acted
on her deep and abiding belief that we are all in this together--we are
community and each of us must accept our personal responsibility within
that community.
The irony and the tragedy is that--to John Salvi--Shannon's life
meant nothing--the good and decent life of someone who truly cared
about others was taken in the name of ``life''.
Mr. President, no matter what our views on abortion might be, I am
sure that every decent American mourns the senseless murder of Shannon
Lowney and is touched by the loss of someone so young and so committed
to working with others.
Contrast Shannon's life and her motives with the life and motives of
a
[[Page S1055]] man like John Salvi--A man who killed one person and
wounded five others and then left Planned Parenthood and walked a few
blocks to the Preterm Health Services Clinic. He asked Lee Ann Nicols,
a 38-year-old receptionist engaged to be married this year, whether
this was the preterm clinic.
She said yes and he shot her from less than one yard away--killing
her on the spot.
He then said, ``in the name of the mother of God'', aimed at Richard
Seron, a lawyer working as a security guard, and shot him once in each
arm. He shot one other person, 29-year-old June Sauer once in the
pelvis and once in the back, and then he left.
Five people injured--two people killed.
And now we must ask: Who is John Salvi and what does his life show
us?
On Christmas Eve Salvi delivered a sermon about the Catholic Church
and its failure to see the true meaning of Christ. But what was his
motivation for cold-blooded murder?
Paul Hill, the Minister currently on Florida's Death Row, gives us
some insight into John Salvi's motivations. Hill gave us a chilling
reason for killing a doctor and his assistant in Pensacola. He said
that ``the bible teaches us to do unto others as you would have them do
unto you.
``Therefore, killing a man who is about to kill an unborn child
constitutes killing in self-defense.''
To Paul Hill the murder was a justifiable homicide.
Mr. President, this syllogism lies at the heart of one of the most
corrosive dangers the world faces today.
There are religious teachings that offer justifiable reasons for
killing, but mainstream religions have always promoted tolerance over
intolerance, and the only people who use religion to justify cold-
blooded murder are religious fanatics.
But what happened in Brookline--what happened to Shannon Lowney and
Lee Ann Nicols--and the tragedy of their deaths--tells us that we can
no longer dismiss these fringe elements of our society. We can no
longer let the good people fall victim to intolerance and fanaticism.
Yes, John Salvi read from the same Bible that Shannon and Lee Ann
did. The teachings and the words were the same, but their lives could
not have been more different. It is our task to remember that
commitment and dedication can be manifest in kindness and concern or
they can take the hideous form of fanaticism and hatred that motivated
John Salvi to play God.
Mr. President. It is incumbent on all of us as a society to
understand the danger that can be wrought by those who would interpret
religious teachings as a crusade against others and a justification for
cold-blooded murder.
It is our task to understand that we live in dangerous times, and
that the easy availability of weapons in this society to people like
John Salvi and Paul Hill has increased that danger, and increased the
threat to those who chose to show their commitment and their faith by
helping others build a better life for themselves and for their
families.
I believe it is time for both sides in the abortion issue to find a
way to express their views without increasing the level of the rhetoric
or the level of violence.
It is our task to sit down and talk to each other, and I commend my
friend and constituent, Cardinal Bernard Law, of the Archdiocese of
Boston, for his efforts to bring both sides together. He has shown
himself to be an individual of courage in this regard. Even though he
is strongly pro-life, he has called for an end to anti-abortion
protests in Boston.
And he is trying to bring everyone together in an unprecedented
series of negotiations. Cardinal Law is a leader whose tolerance, and
deep faith serves as an example to all of us.
What we achieve together can send a loud and clear message--to those
who would use their beliefs as justification for murder--that, though
we may not agree, we are still one people bound together not only by
our faith and our commitments to our beliefs, but by the expression of
our common interests through tolerance for our differences and a mutual
respect and understanding for each other.
But, make no mistake. The wrong response to these shootings would be
to turn clinics into armed fortresses on the fringes of our medical
delivery system, further from those who choose to have the procedure.
Yes, we must protect workers, medical personnel, and patients, but we
cannot allow an accepted medical procedure to be limited by the blind
intolerance of a fanatical fringe.
So, Mr. President, if this constitutionally protected right is to be
preserved, and if we are to truly pay tribute to women like Shannon
Lowney, then we need to protect the safety of those who seek the
services of these clinics.
When those shots rang out in Brookline, John Salvi took something
very precious from us. He took our freedom to believe and to express
our beliefs as we choose. He took our freedom to act on our beliefs
without fear of violence. We can never let that happen.
Mr. President, perhaps the most eloquent tribute to Shannon Lowney
came from the president of the Planned Parenthood League of
Massachusetts. Nicki Nichols Gamble said, ``Shannon gave her life so
that others would be able to have better lives. She was an essential
link in the chain of women helping women. We will miss her desperately,
and we will remember her, and we will see to it that her death will not
be in vain.''
Today and for many days to come we will mourn the deaths of Shannon
Lowney and Lee Ann Nicols. The people of my state are shocked and
outraged at this senseless act of violence that took them from us, and
I know that I speak for every member of the Senate in extending our
deepest condolences to their families and friends and to all the
victims of this tragedy.
The lesson, Mr. President, is ``tolerance'' and it is a lesson we
would do well to learn; and--if we do not learn it--we will have
dishonored the memory of two young women from Massachusetts who lost
their lives to intolerance in the name of God.
Thank you, Mr. President. I yield the floor.
Mrs. BOXER. Mr. President, I ask my colleague if there are any other
speakers that he knows of at this time on his side, and if there are
not, I will take about 5 minutes at this time.
Mr. KEMPTHORNE. Mr. President, yes, I do believe that we have at
least one more Senator who will be coming to speak on the issue.
Mrs. BOXER. Mr. President, I will yield myself 5 minutes, and then I
will yield back to my colleague so we can continue the debate.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. Mr. President, I want to thank the Senator from Illinois
for being here; for, yes, being one of the early cosponsors of this
amendment. I, frankly, do not know of any Senator who is pro-abortion.
I do know many Senators who are pro-choice on both sides of this aisle.
That is why it is so important for reasonable people to come together
around this issue, by the way, people who are pro-choice and people who
are not, as the Senator from Illinois pointed out. There are times when
we can all come together. This is one of those times.
When I was asked about what life in the new Senate would mean for me,
I responded to one reporter in this way. I said:
``I think there will be many issues where reasonable Senators will
come together from both sides of the aisle, and it will not be a
partisan issue in every case.''
And that reporter said: ``Give me an example.''
I said: ``Clinic violence, the gag rule, a woman's right to choose.''
This is something that cuts across our party. This is about the
dignity of women and, therefore, the dignity of all of us, because all
of us have mothers. Many of us have sisters, wives, and daughters, and
their dignity is our dignity.
I am so pleased that after much discussion and debate, we were able
to reach agreement on a very sensible resolution, I think one that each
and every Member of this Senate can be proud to vote for.
I want to use a little time to go back to what is really happening in
some of the streets of our Nation. And I want to refer to a document
called ``No Place to Hide,'' which is a campaign being launched by a
group that calls
[[Page S1056]] themselves ``pro-life.''
And I would leave it up to others to decide if that is an appropriate
term.
They put out this leaflet, and I am going to read to you from part of
it. It says in part, this is the ``No Place to Hide'' campaign.
And it is supposed to go after workers in reproductive health care
clinics. It says:
Try to reason with the doctors, speaking from your heart
about the unborn child and the pain and anguish their mothers
go through. If they agree--
The doctors.
If they agree to stop killing children, ask them to put it
in writing.
Mr. President, when you use terms like this: Ask the doctors to stop
killing children, what is the message? Then they say:
Creative fliers similar to the enclosed wanted poster to
hand out to people entering the building where the doctors
have their practices.
Here is one of these wanted posters, showing the faces of these
doctors, and on the top it says, ``Wanted For Killing Unborn Babies.''
Now, it seems to me it is time for all Americans to come together and
listen to the words we are using.
I ask unanimous consent to place in the Record an article from the
Oakland Tribune dated January 6 at the end of my statement.
The PRESIDING OFFICER (Mr. Grams). Without objection, it is so
ordered.
(See exhibit 1.)
Mrs. BOXER. I thank the Chair.
This is what they say in this article:
When you tell someone unstable, like Paul Hill--
Who killed two people in a clinic in Florida--
When you tell someone unstable, like Paul Hill, that
doctors at Planned Parenthood are murderers who destroy
innocent babies, you just can't wash your hands of it when
that unstable person kills someone. When your supporters
distribute posters saying, ``wanted dead or alive,'' with
doctors' names on them, you can't say it has nothing to do
with you when someone ends up dead. When you liken abortion
to the Holocaust, you are inviting your followers to take the
law into their own hands.
And then they quote one of the gentlemen involved in these
organizations, and he said,
Anyone in the war zone has got to expect to be part of the
war that's going on.
The PRESIDING OFFICER. The time of the Senator has expired.
Mrs. BOXER. I ask for 2 additional minutes.
Anyone in the war zone has got to expect to be part of the
war that's going on.
Said this gentleman about the dead woman in Brookline.
So I say to you, Mr. President and my colleagues, I thank so much the
Senator from Oklahoma working on the words of this resolution so we
protect everybody's rights--yes, the rights of the peaceful protesters
to express themselves fully and completely as we point out in the FACE
bill they have a right to do, and, yes, the rights of people seeking
reproductive health care to have their lives protected. I say that we
cannot ignore the words that are being used, and that, yes, in this
amendment we are calling on the Attorney General to fully enforce this
law, to do everything she has to do.
In essence, I hope that by our speaking out tonight in a bipartisan
fashion, the word will go out to the people in these organizations to
think very carefully, Mr. President, of the words they use and the
things that they print up showing doctors as killers.
The PRESIDING OFFICER. The Senator's additional 2 minutes have
expired.
Mrs. BOXER. And to change their tactics.
I would at this time save the remainder of my time, which, if I am
correct, is approximately 5 minutes.
The PRESIDING OFFICER. Five minutes.
Mrs. BOXER. I would reserve that 5 minutes.
Exhibit 1
[From the Oakland Tribune]
Anti-Abortion Leaders Must Rein in Troops
The president can send a regiment of soldiers to guard
abortion clinics, and the women and men who work there can
arm themselves to the eyeballs. But violence at clinics is
not going to stop until leaders of the anti-abortion movement
exert strong moral leadership over their flock.
It sounds odd, doesn't it--telling anti-abortionists to
show morality. After all, isn't that what the anti-abortion
movement is all about? Its adherents hold the bedrock belief
that a fetus is an independent human being. When they stop an
abortion they believe they are saving life.
But you can't be ``pro-life'' and condone murder. Two
murders took place in Brookline, Mass, last week--the victims
were receptionists at places where abortions take place. An
anti-abortion activist from New Hampshire, John Salvi, has
been accused of the crimes.
Another anti-abortion crusader, Paul Hill, was convicted
last year of similar murders in Florida. There has been
violence at other clinics across the country.
Too many leaders of the anti-abortion movement have washed
their hands of these murders emanating from their midst. They
say, ``Tsk tsk. Isn't that a shame? But those people are
extremists. They have nothing to do with the mainstream anti-
abortion movement.''
Frankenstein
We have news for anti-abortion leaders: Paul Hill, John
Salvi and the others like them in your movement have
everything to do with you. You create and nourish them with
your language and tactics.
When you tell someone unstable, like Paul Hill, that
doctors at Planned Parenthood are murderers who destroy
innocent babies, you can't just wash your hands of it when
that unstable person kills someone. When you supporters
distribute posters saying, ``wanted, dead or alive,'' with
doctors' names on them, you can't say it has nothing to do
with you when someone ends up dead. When you liken abortion
to the Holocaust, you are inviting your followers to take the
law into their own hands.
When the movement accepts people like Salvi, Hill or the
Rev. David Trosch in its midst then it has to accept
responsibility for their actions and their speech. Trosch is
the Roman Catholic priest suspended for declaring it
``justifiable homicide'' to kill a doctor who commits
abortions.
A man like Trosch incites men like Hill to kill. ``Anyone
in the war zone has to expect to be part of the war that's
going on,'' Trosch said of the dead women in Brookline.
Not everyone in the anti-abortion movement is like Trosch,
of course. The bulk of people are sincere and well-meaning.
The Rev. Flip Benham of Operation Rescue National condemned
the attacks in Brookline. ``An eye for an eye, it doesn't
work that way,'' Benham said. But to an apparently increasing
number of anti-abortionists it does work that way. These
movement members see things as Trosch sees them. They see
those dead receptionists as grounds troops in a larger war
who have no meaning of their own.
Cardinal Bernard Law of the Boston Archdiocese wants the
killing to stop. After the Brookline shootings, he called for
an end to the violence and the demonstrations. He told those
who protest to search their souls.
true leadership
That is moral leadership. Anti-abortion leaders should
search their souls indeed. Are they inciting people to Kill?
Is their language too provocative? Are their actions going to
lead to violence? Is there a better way to get where they
want to go without confrontation? Can they identify people on
the fringe before they harm others? Can they isolate those
people and get them counseling?
This is a time for leaders and everyone else in the anti-
abortion movement to take careful stock of what they stand
for. They got into this crusade to save lives. Their cohorts
are now taking lives. This is not the way it was supposed to
be.
Paul Hill said that one day soon his behavior--murder--
would be viewed as normal in the abortion wars, rather than
an aberration.
The only ones who can keep that ghastly reverie from
becoming reality are the men and women who lead the movement
that created Paul Hill. They need to take their considerable
moral energy and turn it inward, for now. It is time to
begin, today.
Mr. NICKLES addressed the Chair.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. NICKLES. Mr. President, I ask to be recognized for such time as
necessary, not to exceed 7 minutes.
The PRESIDING OFFICER. The Senator is recognized.
Mr. NICKLES. Mr. President, on this resolution, I have been working
with the Senator from California, and I appreciate her cooperation as
well as the cooperation of the Senator from Washington, Senator Murray,
in trying to come up with a resolution that we can support. I am
talking about people of different views on different sides of the
abortion question. I think we have come to agreement, and I appreciate
their cooperation.
When we originally looked at the resolution as introduced, it left a
lot to be desired, and my original thought was that we could not
support it. Since then, I think we have made some improvements, and I
might just mention those. Originally the resolution stated
[[Page S1057]] that ``persons exercising their constitutional rights
and acting completely within the law are entitled to full protection
from the Federal Government.''
Now, that might sound good. But we have left that out because it can
be misleading. Some people might misinterpret that, so now that is not
included in the resolution. We offered to say that they would be
entitled to ``equal protection,'' we did not reach an agreement on
that. So now that particular segment is not included.
Also, the original resolution stated that ``the Freedom of Access to
Clinic Entrances Act of 1994 imposes a mandate on the Federal
Government to protect individuals seeking to obtain or provide
reproductive health services.''
That is now deleted. It was deleted, in my opinion, for a good
reason--because it is not correct. That is not what the original act
stated.
In addition, we made a couple of other changes, and I think these as
well are positive changes. The sense-of-the-Senate resolution, as
mentioned by the Senator from California, now deletes language that
says that ``the Attorney General should fully enforce the law and take
any further necessary measures to'' protect persons, and so forth. And
we have eliminated that part--``and take any further necessary
measures''--in addition to enforcing the law. I think that is an
improvement.
I appreciate also the Senator from California agreeing to the
following addition that was recommended by the Senator from Indiana,
Senator Coats, which added the following. It says:
Nothing in this resolution shall be construed to prohibit
any expressive conduct (including peaceful picketing, or
other peaceful demonstration) protected from legal
prohibition by the First Amendment to the Constitution.
In other words, people still have the right of peaceful
demonstration, whether it be in front of an abortion clinic or other
areas.
Mr. President, let me just state that I will support this resolution.
My original concern was that we were only condemning one type of
violence, the type of violence as it concerns abortion clinics. I
happen to be against all violence. I am not interested in the reason--
in people murdering someone down at the convenience store or in front
of a night club in the streets of Washington, DC or New York City or
Oklahoma or in California or in front of abortion clinics. I condemn
those people who committed the atrocities including killing or
murdering abortionists or someone murdering a 15-year old on the street
because they want to wear his jacket.
I thought the resolution was inappropriate because it only condemned
violence against abortion clinics. I want to condemn that violence. I
happen to be on the pro-life side of this debate. But I think people
who are breaking the law by murdering other individuals are going too
far and they are actually hurting the cause that they supposedly are
trying to help, so I think we should condemn that violence. But I also
think we should condemn violence such as occurred in Alabama in 1993. A
pro-life minister and talk show host Jerry Simon was shot and killed by
a self-described Satan worshiper, Eileen Janezic, stating she did it
``to please Satan.'' That case received almost no publicity. We have
seen a lot of publicity concerning the murder where Paul Hill murdered
an abortionist in Florida, and maybe rightfully so; it needed some
attention. He was certainly wrong.
I might mention, Mr. President, he was convicted. He was convicted
under State law for murder and has now been sentenced to death. Some
people wanted to federalize all crimes, but I might mention murder is
against the law in every single State in the Nation, as it should be,
and States have the primary responsibility to enforce those laws, as it
should be. His trial has been completed, and he was found guilty. And
his sentence is the death penalty under State law. So again I wish to
condemn violence, but I also want to make sure that we do not
federalize so many cases.
It was also originally stated that there was so many thousand FBI
agents and U.S. marshals and that they should do all they can to
protect abortion clinics. I might mention--and I think the resolution
states there are something like 900 clinics. They are called--well,
they are called clinics in the United States providing reproductive
health services. They are abortion clinics. If you took the number of
U.S. marshals--I think there is stated to be about 2,000 marshals and I
guess their deputies--then each clinic could have a little over 2
marshals per clinic. The marshals have something else to do. So I
objected to that section, as well.
So I appreciate the Senator from California deleting this. I
appreciate the willingness of the Senator from California to modify the
resolution. I think it is acceptable. I think it is important for the
Congress to speak out and condemn violence but I think it is also
important for us to speak out and condemn all violence. When we see
teenagers killing teenagers; when we see drug epidemics run rampant
throughout this country; when we see the number of women who are being
abused, the number of children who are being abused; when we see so
many significant crime problems throughout this country, I think we
need to do something, as well. Not just a sense-of-the-Senate
resolution.
So I am hopeful that this Congress will move and move expeditiously
on a significant crime enforcement package, one that will strengthen
the penalties that some of us tried to enact a year ago, one that will
have habeas corpus reform so we can have an end to the endless appeals.
So I hope this Congress will move and make some real, significant
change in order to limit crime this year, this Congress.
I thank my colleague and I yield the floor.
Mrs. BOXER. Mr. President, I yield 3 minutes to the Senator from New
Jersey, Senator Lautenberg.
Mr. LAUTENBERG. I thank the Senator from California.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. LAUTENBERG. Mr. President, I rise today in support of the sense-
of-the-Senate amendment introduced by Senator Boxer.
Since 1984, there have been more than 1,500 acts of violence near
abortion critics.
In the last 22 months, five innocent people have been shot to death
at abortion clinics. Five men and women heartlessly slain by murderers
who call themselves pro-life.
In the past year, we have already seen two tragedies at abortion
clinics. Less than 6 months ago, a doctor and his escort were shot to
death on their way to work in Pensacola, FL.
Most recently, a 22-year-old man allegedly went on a violent spree,
attacking abortion clinics in Massachusetts and Virginia, and killing
two clinic workers in the process.
Mr. President, how many more innocent people must die before we as a
society put a stop to this terror?
How many doctors will be gunned down for performing a legal medical
procedure?
How many receptionists will lose their lives simply because they work
in the line of extremist gunfire?
Last year, President Clinton signed the Freedom of Access to Clinic
Entrances Act, known as FACE. This law made it a Federal crime to
block, obstruct or intimidate a woman seeking reproductive health
services, or a doctor trying to perform them.
But it is now clear that the clinic access law alone will not be
enough to protect our Nation's doctors and women.
Attorney General Reno announced in August that she would post U.S.
marshals outside of threatened clinics. That is also a step in the
right direction, and I urge the Justice Department to review its
efforts in this area.
I applaud the President's announcement earlier this month directing
all U.S. attorneys around the country to form an immediate task force
of Federal, State, and local officials to coordinate plans for security
at all clinics in their jurisdictions.
And I applaud the President's efforts to improve communication
between U.S. marshals and reproductive clinics to make sure they are
prepared to inform the authorities of any potential threats.
But I ask the administration to continue pursuing a hard line against
the purveyors of violence and to take further protective measures until
each
[[Page S1058]] and every reproductive clinic in the United States is
safe for doctors, for employees, and for patients.
The women of this country deserve to go to the doctor without fearing
that they may never come home.
They deserve to receive reproductive services without harassment,
intimidation or even worse, bodily harm.
And they have a right to undergo legal medical procedures without
putting themselves, their families or their doctors in such unfair
jeopardy.
Let us send a strong message to all those who would use guns to
express their views, a message that we are going to stand up for the
women, doctors, escorts, and health care workers across the country
until all Americans are safe, and all murderers are behind bars.
Mr. President, I will just take a couple of minutes to summarize
what, I sense, is an attitudinal problem. We can talk all we want about
standing up against violence. But very often, the people who talk most
about violence and getting rid of it are those who support the
proliferation of guns across our society. It is pretty hard to do away
with violence when there is almost a gun everyplace that you look, and
a failure to register those things.
When we talk about standing up against violence, there is an
intimation that those who have the right to choose under our
Constitution, confirmed by the Supreme Court, are themselves committing
an act of violence, and that is where the process starts. The process,
not just of killing and assault, but intimidation, is one designed to
threaten people who decide that they want to make a different decision
than those on the other side.
In New Jersey, we have a doctor who offers abortion as part of his
obstetrical practice, offers abortion if people want it. He has been
shot at. He has been threatened. His family is constantly under threat.
He is so frightened by doing what he feels is right professionally, and
yet he is unable to offer the kinds of services for which he has been
licensed by the State and by the profession.
The PRESIDING OFFICER. The Senator's 3 minutes have expired.
Mr. LAUTENBERG. Can I have 1 more minute, or if my colleague is out
of time, I will conclude.
Mrs. BOXER. I will yield 30 seconds.
Mr. LAUTENBERG. Just to say this. If we are going to talk against
violence, it has to start when people violate the law, the law very
clearly stated. I implore the President and the Attorney General to
stand up and protect those institutions that offer people a choice in
how they want to conduct their lives. It is very simple.
Mr. President, I yield the floor and thank the Senator from
California for her courage and for letting me participate.
I yield the floor.
Mrs. BOXER. Mr. President, I have a minute and a half remaining. I
wonder if the Senator from Idaho would like to yield some time. I will
retain that minute and a half just to close off debate at the end, if I
might.
Mr. NICKLES. Mr. President, how much time remains?
The PRESIDING OFFICER. It is 14 minutes for the Senator from
Oklahoma, and a minute and a half for the Senator from California.
Mr. NICKLES. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded for a parliamentary question.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Ms. MIKULSKI. Mr. President, to whose time is the time being charged
for the quorum?
The PRESIDING OFFICER. The Senator from Oklahoma.
Ms. MIKULSKI. I see. I thank the Chair. I yield the floor and, Mr.
President, I suggest the absence of a quorum.
The PRESIDING OFFICER. On whose time?
Ms. MIKULSKI. On the time of the Senator from Oklahoma.
The PRESIDING OFFICER. Is there objection? Is there objection?
Without objection, the clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BRADLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from New Jersey.
Amendment No. 141
Mr. BRADLEY. Mr. President, I ask unanimous consent that Senator
Dorgan, Senator Dole, and Senator Nickles be added as cosponsors to the
amendment, the Bradley amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BRADLEY. Mr. President, as I said earlier, this is a very simple
amendment.
The PRESIDING OFFICER. Who yields time to the Senator?
Mr. BRADLEY. Mr. President, I think the unanimous consent agreement
allotted 1 hour for debate of the underlying amendment.
The PRESIDING OFFICER. It was controlled by Senator Nickles of
Oklahoma and Senator Boxer of California.
Mr. BRADLEY. Mr. President, I ask unanimous consent I be able to
proceed for 2 minutes.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. BRADLEY. Mr. President, the amendment we are going to be voting
on at 7:30 is an amendment that simply says while we are debating
Federal unfunded mandates on States, it is the sense of the Senate that
there should not be unfunded mandates from the States to the local
governments of this country requiring increases in property taxes.
The fact is the property taxes are much too high in most States, and
there is a significant reason for that involving unfunded mandates from
the State government to the local government.
This simply allows the Senate to go on record saying that we do not
want high property taxes from unfunded mandates. There are many
Governors in the country who do not want any mandates from the Federal
Government but they are not reluctant to apply unfunded mandates to the
local governments. They are very clear on that.
I am very pleased to have Senator Chafee as a key cosponsor.
I yield the floor. If Senator Chafee wants to speak, I hope he will
come over for the remaining 30 seconds of my 2 minutes.
Mr. President, I ask unanimous consent that Senator Robb be added as
a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ABRAHAM. Mr. President, I must rise in opposition to the
amendment offered by the Senator from New Jersey. It is true that I
strongly support the idea that mandate costs should not be forced upon
subordinate units of government, and that the constitution of my home
State of Michigan prohibits the imposition of unfunded mandates upon
local units of government. My inability to support the amendment
accordingly does not arise from any disagreement with the principle it
expresses. Rather, my opposition is grounded in larger principles of
federalism. A core principle of that doctrine is that certain matters
simply are beyond the ken of the Federal Government. To my mind, the
proper allocation of mandate costs between State and local governments
is one such matter. Thus, while I agree with the general principle
expressed in the Senator's amendment, I think we overstep our proper
bounds when we tell State and local governments how to structure their
relationship.
Mr. President, I yield the floor.
Mr. CHAFEE. Mr. President, let me comment very briefly on the Sense-
of-the-Senate resolution offered by Senator Bradley and me.
The resolution is, of course, not binding to the States. The last
thing we want to do is attach a mandate to an unfunded mandates reform
bill. Instead, we say plainly here that the States should given full
consideration to mandates they might pass onto their cities and towns.
That is all.
I mentioned last week on the floor how ironic it is that Governors
have asked us to provide relief in this area--while they themselves
frequently impose unfunded mandates on their counties, cities, and
towns. As we know,
[[Page S1059]] cities and towns have no one to pass costs down to.
S. 1 introduces a clear mechanism for accountability at the Federal
level. It would be inappropriate and unconstitutional for the Congress
to install these same restrictions at the State level--yet--the theme
underlying S. 1 of increased accountability for mandates seems
applicable.
Although my plan is to support S. 1, I have concerns about the lack
of information in certain areas. for instance, do we know how many of
the mandates imposed upon cities and towns actually originate from the
Federal Government? To my knowledge, there is no data base or tracking
system to make this important distinction. However, we have clear
evidence that State-issued unfunded mandates exist.
Mr. President, many States have exercised their authority to adopt
laws which are more stringent than what the Federal Government
requires.
For example, my own State of Rhode Island requires every city and
town to have an adult monitor on every school bus that carries children
in the fourth grade and below. Did the Federal Government issue this
mandate? No. Does the State provide the funds for this? No. The cities
and towns must find the money in their own budgets.
I will conclude by noting that the Governmental Affairs Committee
report accompanying S. 1 states on page 3 that, ``* * * local officials
decry unfunded State mandates as much as they do unfunded Federal
ones.'' Since we cannot take direct action to remedy this, Mr.
President, I would hope that the Senate could at least send the message
that we must be held accountable at all levels.
I am told that language similar to this was to be included in a
managers amendment last year on S. 993. It is my view that the need for
this resolution still exists and so I urge its adoption.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that the
remaining committee amendments be laid aside in order to consider a
Levin-Kempthorne amendment regarding feasibility and that no other
amendment be in order prior to the disposition of the Levin-Kempthorne
amendment and no call for the regular order serve in place of the Levin
Kempthorne amendment.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Amendment No. 143
(Purpose: To provide for the infeasibility of the Congressional Budget
Office making a cost estimate for Federal intergovernmental mandates,
and for other purposes)
Mr. LEVIN. Mr. President, I send an amendment to the desk in behalf
of myself, Mr. Kempthorne, and Mr. Glenn, and ask for its immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Michigan [Mr. Levin], for himself, Mr.
Kempthorne, and Mr. Glenn, proposes an amendment numbered
143.
The amendment is as follows:
On page 19, insert between lines 10 and 11 the following
new clause:
``(iii) If the Director determines that it is not required
under clauses (i) and (ii), 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 that determination in the statement. If such
determination is made by the Director, a point of order shall
lie only under (c)(1)(A) and as if the requirement of
(c)(1)(A) had not been met.
Mrs. BOXER. Mr. President, may I make a parliamentary inquiry?
The PRESIDING OFFICER. The Senator will state it.
Mrs. BOXER. I wonder, since I have 1\1/2\ minutes remaining before
the vote at 7:30, I would like to protect that right to be able to give
that 1\1/2\ minutes closing of my argument if I might.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEVIN. Mr. President, this amendment responds to a lengthy
discussion that we had yesterday about whether the bill should allow
the Congressional Budget Office to state when it honestly cannot
estimate the direct cost of an intergovernmental mandate. The bill
contains a provision that allows the CBO to be honest with respect to
its ability or inability to estimate private sector mandates. However,
there is no comparable language with respect to CBO's estimates for
State and local governments. That was not inadvertent, as the committee
reports indicate. But it was wrong. We made an effort in committee to
correct it. We had no success.
The amendment we have before us adds such language, and it clarifies
in those situations where the CBO cannot make an estimate that it may
say so, and that that will be true for intergovernmental estimates, not
just for private sector estimates.
This amendment is important for a number of reasons. I commend the
managers as well as my cosponsors for agreeing to it and thank them for
their efforts in working this out.
This amendment would first provide for truth in legislating by
allowing the CBO to tell us if they cannot estimate the cost of an
intergovernmental mandate. This amendment retains a point of order in
the situation where the estimate cannot be made. The inability to
estimate direct costs would continue to be a failure to provide a
statement on the estimated cost for purposes of subsection (c)(1)(A).
That was the situation that existed in last year's bill. The point of
order which would remain where an estimate is impossible to be made is
a point of order which was allowed in last year's bill. The point of
order, however, lies only with respect to the absence of a cost
estimate. The point of order with respect to an authorization of
appropriations would not lie because, practically speaking, it cannot
lie. Without a CBO estimate, the mechanism in the point of order that
addresses the authorization of appropriation and the subsequent
appropriation process does not make sense.
This amendment, therefore, makes it clear that that portion of the
point of order in the bill in section (c)(1)(B) does not apply where
CBO cannot make an estimate.
Section (c)(1)(B) includes that new point of order which was added in
this year's bill which was not in last year's bill. That point of order
would not lie in the event of an inability of the CBO to make the
estimate.
I want to again thank Senator Glenn, Senator Kempthorne, Senator
Exon, and Senator Domenici for their help in making it possible for us
to have this amendment offered and to hopefully succeed either tonight
or tomorrow morning to have it adopted.
I thank the Chair. Again, I thank the managers of the bill.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, thank you very much.
Mr. President, yesterday we did a colloquy on the CBO's inability to
make a reliable estimate of mandate costs. Senator Levin was concerned
primarily that the CBO be given the freedom to not make an estimate. I
was concerned that the Congress not provide a loophole which would
frustrate the very intent of this bill, which is accountability and
informed decisionmaking.
The purpose of the Levin-Kempthorne-Glenn amendment will be to
accommodate both interests. If the CBO director cannot make an
estimate, he or she shall so state it. But the failure of the CBO
Director to make an estimate will still trigger the point of order.
This will provide the Senate with the opportunity to debate issues
concerning the estimate and the funding decisions. It will be the will
of the Senate at that point to either waive a point or not.
Mr. President, I believe that this addresses what we were discussing
yesterday in a thorough discussion and it accomplishes what both of us
needed to have accomplished. So I appreciate the floor manager and
Senator Levin.
Mr. LEVIN. Mr. President, if I could quickly ask the Senator from
Idaho to yield for a question, I hope he would agree that the amendment
expressly states that the section (c)(1)(B) point of order would not
lie in such an instance, only the (c)(1)(A) point of order.
Mr. KEMPTHORNE. In response to that, Mr. President, there is only one
point of order, and it has two parts.
[[Page S1060]] Mr. LEVIN. The first part would lie and the second
part would not lie. Is that correct?
Mr. KEMPTHORNE. As a result of the Director making that statement;
that is correct.
Mr. LEVIN. I thank the Chair.
The PRESIDING OFFICER. Under the previous order, the Senator from
California is recognized for 1\1/2\ minutes.
Mr. LEVIN. I ask unanimous consent, Mr. President, that the vote
occur at 7:32 so that the Senator retains 1\1/2\ minutes and so that
the manager on the Democratic side would have an opportunity for a 1-
minute statement, or whatever he needs.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Mr. President, I will be very brief.
I agree completely with Senator Levin. I think he has taken care of a
problem that we discussed at great length on the floor yesterday. We
went on and on about this. I will not try to repeat all of those same
arguments we made yesterday. I think it is ridiculous to require a
report where they can say they cannot make a report. Senator Levin has
very properly moved this amendment to take care of that problem. I
support it fully. I urge my colleagues to vote for it.
It is my understanding that Senator Levin will want a rollcall vote
on this but that it will be put off until morning, and as part of the
wrap-up by unanimous consent this evening.
I yield the floor so that our distinguished colleague from California
can get her time.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Thank you very much.
Mr. President, based on that, I ask unanimous consent that there be a
rollcall vote on this amendment, that it occur tomorrow prior to
cloture vote, and I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Without objection, the rollcall vote will be
ordered tomorrow.
The Senator from California is recognized for 1\1/2\ minutes.
Mrs. BOXER. Thank you very much, Mr. President. After 2 weeks of
trying to do this, it comes down to a minute and a half. I want to use
that time to thank my colleague from Oklahoma for working so hard to
get an agreement. I thank the majority leader. He was very direct with
me from day one. I knew exactly where I stood. Sometimes it was not in
such a great situation, but it turned out that we were able to air this
issue.
I want to say that I agree with the Senator from Oklahoma that all
violence must be condemned. I have been on this floor condemning gun
violence, violence in the workplace, and domestic violence. I was one
of the authors of the Violence Against Women Act and worked with my
colleague, Joe Biden, to make sure it became the law of the land.
Today I am here to talk about the violence to clinics. On December
30, two young, innocent women that worked as receptionists in women's
health care clinics were shot to death. The same killer shot up a
clinic in Virginia. The President expressed outrage. The Attorney
General has instructed the U.S. attorney and the U.S. marshals to work
with clinics, and we say to the law enforcement officials it is the
Senate's turn to act.
The resolution we propose is straightforward. The resolution, as it
was amended by the Senator from Oklahoma, expresses the sense of the
Senate that the Attorney General shall fully enforce the law and
protect persons seeking to provide or obtain, or assist in providing or
obtaining reproductive health services, from violent attack.
We did compromise on this legislation. I urge my colleagues on both
sides of the aisle to send a very clear statement from this Senate that
we abhor the violence. It will stop; it must stop. We are a country of
laws.
I yield the floor.
Mr. DOLE. Mr. President, I ask unanimous consent to speak for 1
minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOLE. I thank the Senator from California and the Senator from
Oklahoma for coming together on a very important resolution. There is a
vast difference between nonviolence and violence, and that is the
purpose of this resolution. In my view, it seems to me something that
we should all vote for. When someone violates the law, they violate the
law. That is precisely what is being addressed.
The Attorney General should enforce the law. We should not expect any
less. I have even gone so far as to say in public comments that I
understand peaceful demonstration and I understand nonviolence. I
support each. But some of these actions almost come out to terrorism.
I hope we will have a broad bipartisan vote for this special issue.
Mr. President, there will be no more votes after the second vote.
The PRESIDING OFFICER. The question is on agreeing to the Bradley
amendment.
The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. LOTT. I announce that the Senator from New York [Mr. D'Amato] and
the Senator from North Carolina [Mr. Helms] are necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 93, nays 5, as follows:
[Rollcall Vote No. 24 Leg.]
YEAS--93
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Graham
Gramm
Grams
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Hollings
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simon
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Wellstone
NAYS--5
Abraham
Gorton
Hutchison
McCain
Warner
NOT VOTING--2
D'Amato
Helms
So the amendment (No. 141) was agreed to.
Mr. GLENN. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. INOUYE. Mr. President, I move to lay that motion on the table.
The motion to lay on the table was agreed to.
vote on amendment no. 142
The PRESIDING OFFICER. The question is on agreeing to the Boxer
amendment No. 142. The yeas and nays have been ordered. The Clerk will
call the roll.
The assistant legislative clerk called the roll.
Mr. LOTT. I announce that the Senator from North Carolina [Mr. Helms]
is necessarily absent.
The PRESIDING OFFICER (Mr. DeWine). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 99, nays 0, as follows:
[Rollcall Vote No. 25 Leg.]
YEAS--99
Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Harkin
[[Page S1061]] Hatch
Hatfield
Heflin
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simon
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone
NOT VOTING--1
Helms
So the amendment (No. 142) was agreed to.
Mrs. BOXER. Mr. President, I move to reconsider the vote by which the
amendment was agreed to.
Mr. GLENN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. GLENN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BUMPERS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Is there objection? The Chair hears none, and
it is so ordered.
Mr. BUMPERS. Now, Mr. President, what is the present parliamentary
situation? What is the pending business?
Mr. GLENN. Mr. President, will the Senator yield?
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Without losing his right to the floor.
Mr. BUMPERS. Mr. President, I yield without losing my right to the
floor.
Mr. GLENN. Without losing his right to the floor, fine.
What we were doing, we had an amendment that would be voice voted. We
are trying to work out the agreement on it, so it will not knock out
some of the earlier agreements today. And that is being worked on right
now. If we cannot do that tonight expeditiously, we may put that off
until tomorrow.
That is the reason I had the quorum call in.
Mr. BUMPERS. I ask the Senator, is that the Gorton amendment you are
working on?
Mr. GLENN. I am sorry.
Mr. BUMPERS. What is the pending amendment?
The PRESIDING OFFICER. The Gorton amendment is the pending amendment.
Mr. BUMPERS. Is that the amendment the Senator is alluding to?
Mr. GLENN. No. Mine would be a separate amendment.
Mr. BUMPERS. So, Mr. President, the Gorton amendment is open to
amendment, is it not?
The PRESIDING OFFICER. That is correct.
Amendment No. 144
(Purpose: To authorize collection of certain State and local taxes with
respect to the sale, delivery, and use of tangible personal property)
Mr. BUMPERS. Mr. President, I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Arkansas [Mr. Bumpers] proposes an
amendment numbered 144.
Mr. BUMPERS. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
In lieu of the matter proposed to be inserted by the
pending amendment insert the following new title:
TITLE ____--COLLECTION OF STATE AND LOCAL SALES TAXES
SEC. ____01. SHORT TITLE.
This title may be cited as the ``Consumer and Main Street
Business Protection Act of 1995''.
SEC. ____02. FINDINGS.
The Congress finds that--
(1) merchandise purchased from out-of-State firms is
subject to State and local sales taxes in the same manner as
merchandise purchased from in-State firms,
(2) State and local governments generally are unable to
compel out-of-State firms to collect and remit such taxes,
and consequently, many out-of-State firms choose not to
collect State and local taxes on merchandise delivered across
State lines,
(3) moreover, many out-of-State firms fail to inform their
customers that such taxes exist, with some firms even falsely
claiming that merchandise purchased out-of-State is tax-free,
and consequently, many consumers unknowingly incur tax
liabilities, including interest and penalty charges,
(4) Congress has a duty to protect consumers from explicit
or implicit misrepresentations of State and local sales tax
obligations,
(5) small businesses, which are compelled to collect State
and local sales taxes, are subject to unfair competition when
out-of-State firms cannot be compelled to collect and remit
such taxes on their sales to residents of the State,
(6) State and local governments provide a number of
resources to out-of-State firms including government services
relating to disposal of tons of catalogs, mail delivery,
communications, and bank and court systems,
(7) the inability of State and local governments to require
out-of-State firms to collect and remit sales taxes deprives
State and local governments of needed revenue and forces such
State and local governments to raise taxes on taxpayers,
including consumers and small businesses, in such State,
(8) the Supreme Court ruled in Quill Corporation v. North
Dakota, 112 S. Ct. 1904 (1992) that the due process clause of
the Constitution does not prohibit a State government from
imposing personal jurisdiction and tax obligations on out-of-
State firms that purposefully solicit sales from residents
therein, and that the Congress has the power to authorize
State governments to require out-of-State firms to collect
State and local sales taxes, and
(9) as a matter of federalism, the Federal Government has a
duty to assist State and local governments in collecting
sales taxes on sales from out-of-State firms.
SEC. ____03. AUTHORITY FOR COLLECTION OF SALES TAX.
(a) In General.--A State is authorized to require a person
who is subject to the personal jurisdiction of the State to
collect and remit a State sales tax, a local sales tax, or
both, with respect to tangible personal property if--
(1) the destination of the tangible personal property is in
the State,
(2) during the 1-year period ending on September 30 of the
calendar year preceding the calendar year in which the
taxable event occurs, the person has gross receipts from
sales of such tangible personal property--
(A) in the United States exceeding $3,000,000, or
(B) in the State exceeding $100,000, and
(3) the State, on behalf of its local jurisdictions,
collects and administers all local sales taxes imposed
pursuant to this title.
(b) States Must Collect Local Sales Taxes.--Except as
provided in section ____04(d), a State in which both State
and local sales taxes are imposed may not require State sales
taxes to be collected and remitted under subsection (a)
unless the State also requires the local sales taxes to be
collected and remitted under subsection (a).
(c) Aggregation Rules.--All persons that would be treated
as a single employer under section 52 (a) or (b) of the
Internal Revenue Code of 1986 shall be treated as one person
for purposes of subsection (a).
(d) Destination.--For purposes of subsection (a), the
destination of tangible personal property is the State or
local jurisdiction which is the final location to which the
seller ships or delivers the property, or to which the seller
causes the property to be shipped or delivered, regardless of
the means of shipment or delivery or the location of the
buyer.
SEC.____04. TREATMENT OF LOCAL SALES TAXES.
(a) Uniform Local Sales Taxes.--
(1) In general.--Sales taxes imposed by local jurisdictions
of a State shall be deemed to be uniform for purposes of this
title and shall be collected under this title in the same
manner as State sales taxes if--
(A) such local sales taxes are imposed at the same rate and
on identical transactions in all geographic areas in the
State, and
(B) such local sales taxes imposed on sales by out-of-State
persons are collected and administered by the State.
(2) Application to border jurisdiction tax rates.--A State
shall not be treated as failing to meet the requirements of
paragraph (1)(A) if, with respect to a local jurisdiction
which borders on another State, such State or local
jurisdiction--
(A) either reduces or increases the local sales tax in
order to achieve a rate of tax equal to that imposed by the
bordering State on identical transactions, or
(B) exempts from the tax transactions which are exempt from
tax in the bordering State.
(b) Nonuniform Local Sales Taxes.--
(1) In general.--Except as provided in subsection (d),
nonuniform local sales taxes required to be collected
pursuant to this title shall be collected under one of the
options provided under paragraph (2).
(2) Election.--For purposes of paragraph (1), any person
required under authority of this title to collect nonuniform
local sales taxes shall elect to collect either--
(A) all nonuniform local sales taxes applicable to
transactions in the State, or
(B) a fee (at the rate determined under paragraph (3))
which shall be in lieu of the nonuniform local sales taxes
described in subparagraph (A).
Such election shall require the person to use the method
elected for all transactions in the State while the election
is in effect.
[[Page S1062]] (3) Rate of in-lieu fee.--For purposes of
paragraph (2)(B), the rate of the in-lieu fee for any
calendar year shall be an amount equal to the product of--
(A) the amount determined by dividing total nonuniform
local sales tax revenues collected in the State for the most
recently completed State fiscal year for which data is
available by total State sales tax revenues for the same
year, and
(B) the State sales tax rate.
Such amount shall be rounded to the nearest 0.25 percent.
(4) Nonuniform local sales taxes.--For purposes of this
title, nonuniform local sales taxes are local sales taxes
which do not meet the requirements of subsection (a).
(c) Distribution of Local Sales Taxes.--
(1) In general.--Except as provided in subsection (d), a
State shall distribute to local jurisdictions a portion of
the amounts collected pursuant to this title determined on
the basis of--
(A) in the case of uniform local sales taxes, the
proportion which each local jurisdiction receives of uniform
local sales taxes not collected pursuant to this title,
(B) in the case of in-lieu fees described in subsection
(b)(2)(B), the proportion which each local jurisdiction's
nonuniform local sales tax receipts bears to the total
nonuniform local sales tax receipts in the State, and
(C) in the case of any nonuniform local sales tax collected
pursuant to this title, the geographical location of the
transaction on which the tax was imposed.
The amounts determined under subparagraphs (A) and (B) shall
be calculated on the basis of data for the most recently
completed State fiscal year for which the data is available.
(2) Timing.--Amounts described in paragraph (1) (B) or (C)
shall be distributed by a State to its local jurisdictions in
accordance with State timetables for distributing local sales
taxes, but not less frequently than every calendar quarter.
Amounts described in paragraph (1)(A) shall be distributed by
a State as provided under State law.
(3) Transition rule.--If, upon the effective date of this
title, a State has a State law in effect providing a method
for distributing local sales taxes other than the method
under this subsection, then this subsection shall not apply
to that State until the 91st day following the adjournment
sine die of that State's next regular legislative session
which convenes after the effective date of this title (or
such earlier date as State law may provide). Local sales
taxes collected pursuant to this title prior to the
application of this subsection shall be distributed as
provided by State law.
(d) Exception Where State Board Collects Taxes.--
Notwithstanding section ____03(b) and subsections (b) and (c)
of this section, if a State had in effect on January 1, 1995,
a State law which provides that local sales taxes are
collected and remitted by a board of elected States officers,
then for any period during which such law continues in
effect--
(1) the State may require the collection and remittance
under this title of only the State sales taxes and the
uniform portion of local sales taxes, and
(2) the State may distribute any local sales taxes
collected pursuant to this title in accordance with State
law.
SEC.____05. RETURN AND REMITTANCE REQUIREMENTS.
(a) In General.--A State may not require any person subject
to this title--
(1) to file a return reporting the amount of any tax
collected or required to be collected under this title, or to
remit the receipts of such tax, more frequently than once
with respect to sales in a calendar quarter, or
(2) to file the initial such return, or to make the initial
such remittance, before the 90th day after the person's first
taxable transaction under this Act.
(b) Local Taxes.--The provisions of subsection (a) shall
also apply to any person required by a State acting under
authority of this title to collect a local sales tax or in-
lieu fee.
SEC.____06. NONDISCRIMINATION AND EXEMPTIONS.
Any State which exercises any authority granted under this
title shall allow to all persons subject to this title all
exemptions or other exceptions to State and local sales taxes
which are allowed to persons located within the State or
local jurisdiction.
SEC.____07. APPLICATION OF STATE LAW.
(a) Persons Required To Collect State or Local Sales Tax.--
Any person required by section ____03 to collect a State or
local sales tax shall be subject to the laws of such State
relating to such sales tax to the extent that such laws are
consistent with the limitations contained in this title.
(b) Limitations.--Except as provided in subsection (a),
nothing in this title shall be construed to permit a State--
(1) to license or regulate any person,
(2) to require any person to qualify to transact intrastate
business, or
(3) to subject any person to State taxes not related to the
sales of tangible personnel property.
(c) Preemption.--Except as otherwise provided in this
title, this title shall not be construed to preempt or limit
any power exercised or to be exercised by a State or local
jurisdiction under the law of such State or local
jurisdiction or under any other Federal law.
SEC.____08. TOLL-FREE INFORMATION SERVICE.
A State shall not have power under this title to require
any person to collect a State or local sales tax on any sale
unless, at the time of such sale, such State has a toll-free
telephone service available to provide such person
information relating to collection of such State or local
sales tax. Such information shall include, at a minimum, all
applicable tax rates, return and remittance addresses and
deadlines, and penalty and interest information. As part of
the service, the State shall also provide all necessary forms
and instructions at no cost to any person using the service.
The State shall prominently display the toll-free telephone
number on all correspondence with any person using the
service. This service may be provided jointly with other
States.
SEC.____09. DEFINITIONS.
For the purposes of this title--
(1) the term ``compensating use tax'' means a tax imposed
on or incident to the use, storage, consumption,
distribution, or other use within a State or local
jurisdiction or other area of a State, of tangible personal
property;
(2) the term ``local sales tax'' means a sales tax imposed
in a local jurisdiction or area of a State and includes, but
is not limited to--
(A) a sales tax or in-lieu fee imposed in a local
jurisdiction or area of a State by the State on behalf of
such jurisdiction or area, and
(B) a sales tax imposed by a local jurisdiction or other
State-authorized entity pursuant to the authority of State
law, local law, or both;
(3) the term ``person'' means an individual, a trust,
estate, partnership, society, association, company (including
a limited liability company) or corporation, whether or not
acting in a fiduciary or representative capacity, and any
combination of the foregoing;
(4) the term ``sales tax'' means a tax, including a
compensating use tax, that is--
(A) imposed on or incident to the sale, purchase, storage,
consumption, distribution, or other use of tangible personal
property as may be defined or specified under the laws
imposing such tax, and
(B) measured by the amount of the sales price, cost, charge
or other value of or for such property; and
(5) the term ``State'' means any of the several States of
the United States, the District of Columbia, the Commonwealth
of Puerto Rico, and any territory or possession of the United
States.
SEC.____ 10. EFFECTIVE DATE.
This title shall take effect 180 days after the date of the
enactment of this Act. In no event shall this title apply to
any sale occurring before such effective date.
Mr. BUMPERS. Mr. President, I understand the majority leader has said
there will not be any more rollcall votes tonight. Certainly, I am not
going to try to keep the Senate for any prolonged period of time, but I
think it would be appropriate to begin debate on this amendment, about
which I feel very strongly and which I think is a very important
measure for the Senate to consider. But at some point I will
discontinue the debate, and it is my understanding that tomorrow, if
cloture should fail, this would be the pending amendment. So I do not
want to delay the Senate in getting out of here this evening.
I just want to say to my colleagues this is an amendment that will do
more for the States, frankly, in the short term than this entire piece
of legislation.
In 1967, the Supreme Court said that the States could not impose a
tax on a mail order catalog house because it would be a violation of
due process and the commerce clause. So that was the law of the land
until 1992, when a case called Quill versus North Dakota was decided by
the Supreme Court.
That decision reversed the 1967 decision. It said, No. 1, we are
changing our mind about due process. It is no longer a violation of the
due process clause if the States elect to require out-of-State
companies which send goods into their State to collect the applicable
sales tax, or use tax. A use tax is effectively the same thing as a
sales tax, but they call it a use tax because it is a tax on the use of
the product, not the sale of the product. No. 2, although imposing this
tax collection burden on an out-of-State company constitutes a burden
on interstate commerce that is impermissible under current law, the
Congress has the right to determine if that burden should be allowed.
So the primary problem that prohibited States in the past from
levying a sales tax or a use tax on mail order houses--due process--was
removed.
Now, I cannot say this often enough, for anybody who is hesitant
about the thrust of this amendment, that it does not impose a tax on
anybody. The tax is already there. This amendment simply allows the
States the discretion of saying to the mail order houses: If you are
going to ship goods into this State,
[[Page S1063]] you are going to have to collect the use tax on those
goods.
Now, Mr. President, I do not know how many States will do it. Five
States do not have a sales tax so this amendment would have no impact
on those States. They would not levy a use tax on mail order products
because they do not levy sales taxes on their own in-State products.
The reason this legislation is important is because virtually every
State in the Union--45 of them to be precise--have a use tax now. It is
levied not on the mail order house but on the buyer of goods from the
mail order house. If you order a sweater from L.L. Bean and you ship it
into Arkansas, even though L.L. Bean doesn't collect the applicable use
tax, the State of Arkansas says that the purchaser of that sweater
shall remit a use tax in the exact amount of the sales tax to the State
revenue department of my State.
So what you have is a lot of people who are getting a rude surprise
because the States are beginning, more and more, to find these people
who are buying big ticket items. People are buying these big ticket
items and suddenly somebody from the State revenue department in
Florida or North Carolina knocks on the door and says, ``Friend, that
boat you bought for $250,000, you owe us $12,000.'' We have letters
galore in our files from people who have had that rude surprise.
Now, admittedly, the States collect very little revenue out of this.
And you know the reason they do not is because the people of your
respective States of West Virginia, Ohio, Idaho, and the rest of you,
do not know there is a use tax on the books.
Mr. President, what do you think mail order sales in this country
amount to? Just figure it out in your own mind. You open your mail
every day, and you are getting two, three, four times as many catalogs
at your house every week as you used to get.
I will be happy to yield to the majority leader.
Mr. DOLE. Mr. President, I wonder if the Senator will permit us to
conclude a couple of things and then, if he wants to continue, I have
no problem with that. I would like to conclude a couple of things and
then give the floor back to the Senator. They want to adopt one
unanimous-consent request. I would like to file a cloture motion, and I
think the Democratic leader wants to have a colloquy. Then I need to
make a statement with reference to rule XIX.
The PRESIDING OFFICER. Is there objection?
Mr. DOLE. Is that all right with the Senator from Arkansas?
Mr. BUMPERS. Absolutely, Senator.
Modification to Committee Amendment On Page 25, Line 10
Mr. GLENN. Mr. President, I thank my friend from Arkansas very much.
We had this amendment worked out over a period of time here. It
addresses a problem we had yesterday on the floor about committee
jurisdiction. It has been agreed to on both sides of the aisle. We are
happy to do it with a voice vote.
I send an amendment to the desk to modify the committee amendment on
page 25, line 10, that the previous amendments offered to the language
proposed to be stricken by the committee amendment be added to the
modification.
The PRESIDING OFFICER. Is there objection? Without objection, the
amendment is so modified
The modification to the amendment is as follows:
On page 25, strike all after line 10 and insert the
following:
``(4) Determinations of Applicability to Pending
Legislation.--For purposes of this subsection, in the Senate,
the presiding officer of the Senate shall consult with the
Committee on Governmental Affairs, to the extent practicable,
on questions concuring the applicability of this section to a
pending bill, joint resolution, amendment, motion, or
conference report.
``(5) Determinations of Federal Mandate Levels.--For
purposes of this subsection, in the Senate, the levels of
Federal mandates for a fiscal year shall be determined based
on the estimates made by the Committee on the Budget.''.
Mr. GLENN. Mr. President, I have submitted this. I believe it is
acceptable on both sides of the aisle. It takes care of a problem we
debated at long length yesterday on the floor. Does my colleague have
any comment?
Mr. KEMPTHORNE. Mr. President I wish to thank the Senator from Ohio,
the distinguished floor manager. He is correct.
This is an issue that was of concern between the Governmental Affairs
Committee and the Budget Committee. Through the evening hours and this
morning, language has been worked out. I hope this is another clear
evidence that we are finally moving forward on S. 1, so we can deliver
unfunded mandate relief to the cities and States. The public sector
realizes the private sectors are partners on this.
We agree to this amendment.
Mr. GLENN. I urge acceptance of the amendment.
Vote On Committee Amendment On Page 25, Line 10, As Modified
The PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the committee amendment, as modified.
The committee amendment on page 25, line 10, as modified, was agreed
to.
Mr. GLENN. Mr. President, I move to reconsider the vote.
Mr. KEMPTHORNE. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Remarks Expunged From The Record
Mr. DOLE. Mr. President, earlier today there was a statement made on
the Senate floor. I will not repeat the statement, which I think
violated rule XIX. So I would pose the following question, Mr.
President:
If I had called the Senator from South Carolina to order for his
remarks regarding the Senator from Idaho, was rule XIX violated?
The PRESIDING OFFICER. The Chair will read from Riddick's, page 738:
A Senator in debate, who ``in the opinion of the Presiding
Officer'' refers offensively to any State of the Union, or
who impugns the motives or integrity of a Senator, or
reflects on other Senators, may be called to order under Rule
XIX.
It is therefore the opinion of the Chair that the rule was violated,
rule XIX was violated.
Mr. DOLE. Mr. President, I therefore ask unanimous consent the
offending remarks be expunged from the Record.
The PRESIDING OFFICER. Is there objection? Hearing none, it is so
ordered.
Mr. DOLE. Mr. President, I thank the Senator from Arkansas. I will
just take another minute. I think the Senator from South Dakota, the
Democratic leader, may want to have a discussion here.
I wanted to file another cloture motion. Before I did that, I wanted
to recite precisely what has happened so the record will be made.
We began debate on S. 1 at 10:30 a.m. on Thursday, January 12. There
were 14 committee amendments reported. The normal process is to adopt
the committee amendments en bloc after opening statements.
We have never been able to adopt the committee amendments. In fact,
we have had to resort to tabling a few just to get the Senate moving.
We are now only on committee amendment No. 11 out of 14.
Cloture was filed Tuesday, January 17, with the hope we could still
work out a unanimous consent agreement that would provide for an
exclusive list of amendments. After that, the list has gone up since
yesterday--on the Democratic side from 30-some to 78, and it is
climbing; and I must say it has gone up on the Republican side, up to
30. That is 108 amendments. Yesterday, we were talking about 40-some.
Our proposed agreement asks that all amendments must be offered by 6
p.m. tomorrow, and my colleague, Senator Daschle, counteroffered that
it be offered by 12 noon on Wednesday, January 25. Obviously, when you
agree on anything that has to be offered, you have to have a pretty
good relationship or one person will offer an amendment and that will
be it, and no other amendment can be offered. It has worked in the
past, and it still may. It has worked out.
But it seems to me if we are going to complete action on this bill
anytime next week, I hope my colleagues will help invoke cloture when
the cloture vote occurs tomorrow morning.
There was some discussion earlier that if we did not adopt--or deal
with the so-called Boxer amendment, that
[[Page S1064]] might prevent cloture from being invoked. That amendment
has been disposed of. It was a unanimous vote. It was worked out with
Senator Boxer and Senator Nickles and supported by every Senator who is
present.
I hope we can invoke cloture tomorrow and get on with the amendments
that should be debated on each side. And, having said that, I am happy
to yield to the Senator from South Dakota before I send the cloture
motion to the desk.
The PRESIDING OFFICER. The minority leader.
Mr. DASCHLE. Mr. President, let me say I am disappointed that the
cloture motion will be filed. I respect the decision of the
distinguished majority leader, but I remind our colleagues that only
three Democratic amendments have been considered. One amendment offered
by the majority was debated by the body for over 3 hours this
afternoon. And I might add it was a nonrelevant nongermane amendment.
So we have really not had much of an opportunity to debate many of the
very relevant, germane amendments that reflect the legitimate concerns
expressed by our colleagues over the course of the last several days.
Let me just go back, if I may for just a moment, to remind my
colleagues that this bill was introduced on Wednesday, January 4, with
very significant and important differences from S. 993, the unfunded
mandates bill that was reported last year.
The Governmental Affairs Committee held a hearing the next day, on
January 5. There was a markup in Governmental Affairs scheduled for
Friday, January 6. Senator Glenn, the ranking member, on behalf of
several Democrats, asked for time to prepare amendments and consider
issues raised at the hearing. The chairman, Senator Roth, subsequently
agreed to put the markup over to Monday, the following week, with the
requirement that all amendments be filed by Friday, January 6, at 10
o'clock.
Our committee members complied with that request in good faith.
The Governmental Affairs Committee then had a markup on Monday,
January 9, at 10 o'clock. Members were originally told the chairman
would oppose all amendments because the majority leader wanted to take
them up on the floor. So our committee members again, in good faith,
cooperated and delayed offering many of the amendments in committee,
because they had the expectation that these amendments would be
properly debated and considered on the floor. Democrats objected to
eliminating the committee from the legislative process. A markup was
held, and amendments were offered. All Democratic amendments were
defeated as a result of this dictate on a partisan vote, except for
three that were accepted by the chairman.
At the markup, members were told that there would be no committee
report. There were strong objections at the time, and, of course, the
whole controversy relating to the committee report has been very much a
part of the debate on the floor over the last several days.
The Budget Committee held its markup at 2:30 that same Monday. At the
request of the chairman, several Democratic members of the Budget
Committee agreed to withhold offering their amendments until the bill
was to be considered on the floor.
Committee members were then told there would be ample opportunity to
offer these amendments on the floor, and Democratic members asked that
a Budget Committee report on S. 1 be filed. It was our understanding
that there would be a report filed. Of course, that did not happen as
it was promised.
So, Mr. President, in summary, let me just emphasize, we have dealt
in good faith all the way through this process. We had hoped that we
could have ample consideration of the bill in both the Budget Committee
and the Governmental Affairs Committee--and that did not happen. We
were hoping that we could have a report before the bill came to the
floor--that did not happen. We were told we would have an opportunity
to consider amendments on the floor--germane amendments in many cases--
and that has not happened.
In good faith, I think, Senator Dole and I have attempted over the
last day to find an agreement--and that has not happened, either.
There is no filibuster going on here. In my view, and I think in the
view of many of our colleagues, there are very legitimate concerns
about many of these issues.
The concerns have to be addressed prior to the time many of us feel
comfortable voting on final passage. It is my hope and expectation
that, if we had ample consideration of some of these legislative
issues, there could be a favorable vote. But certainly, that is going
to take a reasonable amount of time. I would hope that we could oppose
the cloture motion tomorrow morning.
Mr. DOLE. Mr. President, I think one example is today we spent nearly
4 hours during a recess to try to work out the Boxer amendment which
had to do with violence in women's clinics. It is a very important
issue. It has nothing to do with this bill. And we spent the last 2 or
3 days not discussing the amendments but discussing parliamentary
procedure and whether or not we can adopt the committee amendments,
which generally is a matter of course.
This is a bill that has not changed a lot since last year. It has not
changed much since last year. Unless something happened across the
countryside that this Senator is not aware of, it is supported by the
Governors, the mayors, the city officials, township and county
officials, and all the others, as has been indicated by the Senator
from Idaho in the debate.
The House will start action on this bill on tomorrow. They will
probably demonstrate, as they did in the congressional coverage, that
they can pass the same bill in an hour and 20 minutes that took us 5
days because of so many amendments that were not germane. I would not
suggest that we want to be like the House. I am very happy to be the
U.S. Senate, and am very happy to have been in the House years ago,
too.
But it seems to me that we can bring this matter to a close. If
cloture is invoked, all the germane amendments are going to be there.
They can be a debated, adopted and disposed of in one way or the other.
So I hope that tomorrow we can move on this bill. We may not. We have
one Senator with five relevant amendments; another three, relevant; two
relevant. We have the same on the Republican side; one Member with one
or two relevant amendments, whatever they may be. But they add up to
180 amendments. It is much like the tax bill. I have had a few tax
bills on the Senate floor.
So I certainly will continue to work with the distinguished
Democratic leader. We want to accommodate our colleagues wherever we
can on both sides of the aisle. And we will continue to work to do
that.
I would be willing to ask right now that all the committee amendments
that have not yet been disposed of be agreed to en bloc. I ask
unanimous consent that all committee amendments that have not yet been
disposed of be agreed to en bloc.
The PRESIDING OFFICER. Is there objection?
Mr. DASCHLE. We object.
The PRESIDING OFFICER. Objection is heard.
Mr. DOLE. It is an indication that we are not making progress.
The Easter Recess
Mr. DOLE. Mr. President, I wanted to make one correction. We have had
great difficulty with the Easter recess. I will take the blame for most
of it. But a letter went out today saying thanks for the extra week.
What extra week? It is not an extra week. We are not getting 3 weeks
off. We are getting a week before Easter and a week after.
By the time the letter went out it had almost the entire month of
April. It is not going to happen. We will be out April 7 to April 24.
That is 17 days. We are going to be way behind the House. The House has
3 weeks. We will be about 2 months behind the House by then at the rate
we are going.
So I hope we do not have to put out anymore. If we want a fine letter
on the Easter recess, we have already put out the hotline.
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