[Congressional Record Volume 141, Number 11 (Thursday, January 19, 1995)]
[Senate]
[Pages S1160-S1189]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      UNFUNDED MANDATE REFORM ACT

  The Senate continued with the consideration of the bill.


                           Amendment No. 151

     (Purpose: To exclude laws and regulations applying equally to 
             governmental entities and the private sector)

  Mr. LIEBERMAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. I thank the Chair.
  Mr. President, I would call up amendment No. 151.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The bill clerk read as follows:

       The Senator from Connecticut [Mr. Lieberman], for himself, 
     Mr. Kerry, Mr. Levin, Mr. Lautenberg, Mr. Bumpers, and Mr. 
     Dorgan, proposes an amendment numbered 151.

  Mr. LIEBERMAN. 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 amendment, and the following:
       ``(6) Exclusion.--For purposes of paragraph (1)(B), the 
     term `Federal intergovernmental mandates' shall not include a 
     provision in any bill, joint resolution, amendment, motion, 
     or conference report that would apply in the same manner to 
     the activities, facilities, or services of State, local, or 
     tribal governments and the private sector.

  Mr. LIEBERMAN. Mr. President, I have called up this amendment on 
behalf of Senators Kerry, Levin, Lautenberg, Bumpers, Dorgan, and 
myself. And I am pleased to say that this is a very germane amendment.
  I share the very, very serious concerns that have been raised by 
officials of State and local government about the regulatory compliance 
and other burdens that have been placed on States and local governments 
by the Federal Government, by us. There is a problem here. It is a real 
problem, and we ought to deal with it.
  Last year, there was bipartisan legislation, S. 993, reported by the 
Governmental Affairs Committee on which I am privileged to serve, which 
I thought adopted a balanced approach to addressing the justifiable 
concerns of State and local governments about unfunded mandates. We 
established the principle there that Congress must be forced to 
confront the costs that may be incurred by the State and local 
governments when we pass legislation, whether or not we have authorized 
funding for those costs. There must be an opportunity for the fullest 
discussion, if there are not funds provided in the legislation we adopt 
to cover the costs on State and local governments.
  In other words, that kind of legislation should be subject to a point 
of order if there is not information about the costs. I think that was 
a very important principle that was established in S. 993, a very 
important response to a very real problem, a very constructive 
response.
  I was pleased to be a cosponsor of S. 993 because it was all about 
knowledge and congressional accountability. But I regret to say that in 
my opinion S. 1, though it does some very good things, in one 
particular way--others as well--but in one particular way it goes too 
far. It simply takes a good idea and takes it so far that it creates a 
new, and I think very threatening presumption.
  Under S. 1, if the bill, joint resolution, amendment, motion, or 
conference report increases the Federal intergovernmental mandate by 
more than $50 million in a given year, a point of order will lie unless 
there is a funding mechanism provided.
  S. 1 also provides that if the funding mechanism is an authorization 
of appropriation for the full amount of the mandate, then the bill must 
designate a responsible Federal agency, and establish procedures for 
that agency to direct that the mandate will become ineffective or 
reduced in scope if the full amount of the appropriations is not 
provided in any fiscal year.
  In short, the presumption in S. 1 is that the Federal Government will 
pay 100 percent of the cost of obligations imposed by the Federal 
Government on States and localities. If the legislation states that the 
Federal Government will pay the cost, the money must be appropriated or 
the agency must declare the mandate ineffective or reduced in scope.
  So S. 1 is a much more extensive reach, a much different approach to 
the problem of unfunded mandates than that adopted in S. 993, which was 
reported out of the committee last year. That is why I say it takes a 
problem, unfunded mandates, and in its response reaches too far; and in 
doing so, creates an unintended--but I am convinced very real and 
inequitable--burden on private-sector entities, businesses that are 
affected by these mandates. And it also puts at risk a whole array of 
Federal law protecting the environment, people's health, people's 
safety, people's rights, that the public simply does not want to 
endanger, that the public wants us to continue to protect.
  So under the mantle of dealing with unfunded mandates, this bill will 
have the consequence, I am convinced, of putting extra burdens on 
business, particularly small business, and in the process will create a 
hurdle that will impede the protection of people's environmental 
health, safety, and employee rights.
  Let me say that in trying to separate out those mandates that 
uniquely place responsibilities on State and local governments, and for 
which we should feel a special obligation to pay the costs of those 
mandates, and those mandates which deal with a problem and in doing so 
place responsibilities--call them mandates--on public as well as 
private sources of that problem, we are creating a real inequity.
  But let me say what this amendment leaves intact. It leaves intact in 
the underlying bill, S. 1, the requirement that Congress confront the 
cost of our actions. It may be when doing so, no matter how worthy the 
aims of the particular legislation, how protective it may be, how 
popular it may be, that Congress, Members of Congress, in our wisdom, 
will decide that it is not worth the cost. That is left in place in 
this bill.
  Also left in place is the second point of order, with all the extra 
burdens, all the extra responsibilities on the Federal bureaucracy to 
pay for the cost of mandates, or cut back or terminate those mandates 
if they apply specifically to State and local governments.
  The amendment is structured on a principle, and that principle is 
that if Congress requires other levels of government to perform 
governmental services, then Congress should pay the State and local 
governments to do that. The appropriate area for legislation is where 
States and localities are providing those governmental services, 
mandated by Congress, that Congress is unwilling to fund; 
responsibilities that are exclusively governmental, that do not apply 
to private industry or private citizens.
  The purpose of the amendment is to assure a fairer partnership 
between those State and local governments and the Federal Government in 
carrying out governmental programs. In its report on S. 1, the 
Governmental Affairs Committee stated:

       State and local officials emphasized in the committee's 
     hearings . . . that over the last decade the Federal 
     Government has not treated them as partners in the providing 
     of effective governmental services to the American people, 
     but rather as agents or extensions of the Federal Government.

  But there is an enormously expensive governmental service obligation 
associated, still, with many of the programs covered by this 
legislation that our amendment would not affect. In fact, they are the 
big-ticket mandate items for States and local governments: Medicaid, 
AFDC, child nutrition, food stamps, social service block grants, 
vocational rehabilitation State grants, foster care, adoption 
assistance and independent living, family support welfare services, and 
child support functions. Those are all examples of 
[[Page S1161]] programs where the Federal Government has put 
responsibilities on State and local governments, not on private 
entities. We essentially delegated a governmental responsibility from 
the Federal to the State and local governments. And those are mandates 
whose treatment would be left untouched by my amendment; whose 
treatment under S. 1 would be left untouched by my amendment.
  For Congress to act to pass or reauthorize those mandates beyond the 
$50 million annually exempted, there would have to be the finding that 
Congress had put the money forth to pay for the State and local costs 
of those programs or the point of order would appropriately lie and 
Congress would be tested to express its will. Governor Voinovich of 
Ohio has stated:

       Many States cannot spend a greater share of tax dollars on 
     education because new Medicaid mandates consume more and more 
     of our resources. They account for 70 percent of Ohio's 
     mandate costs, nearly $1 billion over 4 years. Medicaid was 
     19 percent of Ohio's budget in 1982. It represents one-third 
     today.

  So to me these are the most consequential, most costly mandates that 
we at the Federal level have put on the States. And those are the ones 
where we ought to have the process be forced to go through the extra 
hurdles in S. 1.
  Senator Bond, our colleague from Missouri, at the hearing held on S. 
1 this year said:

       Unfortunately, the State [State of Missouri] projects that 
     unfunded mandates will exceed $250 million. These are costs 
     that have been documented with respect to specific measures. 
     The Clean Air Act cost, in 1997, two-thirds of a million 
     dollars; total environmental mandates are estimated only at 
     $3.5 million.

  I stop my quote from our colleague from Missouri here. Let me just 
emphasize that I think what many of us have been thinking about is the 
unfunded mandates, environmental particularly. As our colleague from 
Missouri said in his testimony before the committee, consumers put a 
relatively small burden--and as I will come back and argue, it is a 
fair burden because it is also one placed on private sources of 
pollution.
  Then the Senator goes on to say the Carl D. Perkins Vocational Act 
cost the State $16 million in unfunded mandates, $16 million as 
compared to $3.5 million for total environmental mandates on Missouri. 
The Department of Social Services, as one would expect, Senator Bond 
says, was the big winner having the privilege of almost $130 million of 
a very limited budget to comply with Federal mandates. The Federal 
unfunded mandates survey for the National Association of Counties lists 
the most costly unfunded mandate as the Immigration Act. That is the 
type of mandate that applies specifically to State and local 
governments and the type of mandate for which we should be tested, 
forced to confront the costs, and go over the higher hurdle set in S. 
1.
  The city of Chicago survey of mandates listed airport restrictions, 
arbitrage rebates, and bond financing restrictions, as the most 
consequential to the city. I would distinguish these mandates from 
other so-called ``mandates'' which really are about the adoption of a 
law at the Federal level to respond to a problem--clean air, clean 
water, safe drinking water, fairness to employees, as in the Family and 
Medical Leave Act, where the source of the problem or potential problem 
is both public and private. This amendment would eliminate that 
inequity.
  It exempts from the definition of a Federal intergovernmental 
mandate, as is in the bill, it is a very simple amendment with big 
consequences. It simply changes the definition of Federal 
intergovernmental mandate in the bill and exempts from that definition, 
for purposes of the requirement that the legislation must provide a 
funding mechanism for 100 percent of the cost to avoid the point of 
order, provisions which apply in the same manner to the State, local, 
or tribal governments and the private sector.
  For example, suppose legislation requires that all incinerators limit 
emissions of dioxin to 12 parts per billion by the year 2000. That 
would apply obviously to both public and private sector incinerator 
operators. Under the amendment, the authorizing committee in its report 
is still required to state the amount--this is under S. 1 if the 
amendment were adopted--the authorizing committee in its report is 
still required to state the amount of any decrease or increase in 
funding whether the committee intends the mandate to be funded or 
unfunded and any sources of Federal funding. Under the amendment, the 
director of CBO would still be required to provide an estimate of the 
cost to State and local governments of this requirement having to do 
with emissions of dioxin that I have set up as the hypothetical here, 
and to state if those costs are greater than the $50 million threshold 
in the bill.
  Under this amendment, if it is agreed to, the point of order would 
still lie if the committee report does not contain that estimate except 
as modified by the amendment of the Senator from Michigan which we 
adopted earlier today.
  However, under this amendment, there would be no point of order if 
the bill did not provide a funding mechanism for 100 percent of the 
cost of compliance with this dioxin reduction proposal for the State 
and local governments.
  Mr. President, this amendment covers only the situation where duties 
and obligations apply in the same manner to private sector and State 
and local governments. S. 1, in its current form, potentially, under 
its procedures, sets up a two-track process here between private and 
public entities and would exempt State and local governments from the 
environmental safety, employee rights, and environmental standards that 
competing private businesses must meet. So S. 1 would potentially 
result in a competitive disadvantage for private enterprises engaged in 
the same activities that the State or local governments are engaged in.
  In the example I gave a moment ago, the burden would fall on the 
privately operated incinerator to spend whatever was necessary to 
reduce the emissions of dioxin whether or not Congress gave any help in 
meeting the cost of that upgrading but would not similarly apply to the 
publicly owned incinerator if Congress did not provide full funding.
  Of course, the other consequence here, Mr. President, is that the 
application of S. 1 as it exists now would probably result in 
disproportionate risks to our citizens. I can tell you that the people 
living around that incinerator would not care whether it was publicly 
or privately owned. They want to be protected from toxins coming from 
the incinerator.
  Let me give some other examples. Under S. 1, the bill before us, and 
in future legislation, State and local governments could be exempt from 
paying their employees an increase in the minimum wage or providing 
family and medical leave, requirements that all private businesses 
would have to meet. Publicly owned or operated incinerators could be 
exempt from air pollution standards while privately operated 
incinerators would be required to meet those standards. Publicly run 
drinking water systems might not have to provide pure water in the same 
way that private water companies would have to provide. Public 
universities and hospitals could be exempt from the requirements for 
handling radioactive wastes while private hospitals, including 
nonprofit hospitals, religiously supported hospitals and labs, would be 
required to meet those standards.
  Cars owned by the State or local government could be exempt from 
requirements to run on cleaner burning fuels which apply to all other 
citizens of the State, not just to private businesses, but to everybody 
else in the State. States or local governments that operate schoolbuses 
could be exempt from safety requirements that would apply to buses 
operated by private companies. State-owned liquor stores could be 
exempt from standards of conduct that would be applied to privately 
owned and operated stores. States and municipalities could be exempt 
from requirements to retrofit or replace air conditioning units to 
remove CFC's while private entities would have to do that.
  Certainly, Mr. President, we do not mean to say that there should be 
a presumption, if Congress determines a law is necessary to regulate 
safety, for instance, on school buses, safety of our kids, that they 
must also provide 100 percent of the compliance costs of publicly owned 
buses or else they do not have to meet that standard. The point here is 
that in adopting legislation [[Page S1162]] which we have given--I 
think unfairly in this case--the pejorative term ``mandate'' for 
expressing a value, for setting a national goal, we are trying to 
protect people. I do not think that the people who sent us here want us 
to protect them any more from dirty air or dirty drinking water than 
from accidents of their kids on school buses. They do not want any 
lower level of protection if the source of those threats to their 
safety and well-being are from public as opposed to private sources.
  Let me talk for a moment about the consequences of public health. It 
has been my honor to serve on the Environment and Public Works 
Committee, and this is an area in which I have spent some time. And I 
am particularly concerned about the unintended, and I think undesired 
by the American people, consequences of S. 1 on environmental laws. 
When we pass a law, we have determined that the national interest 
requires that law to achieve a goal, that there is a problem out there 
that requires a national solution to protect public health or the 
environment. For example, more than 25 years ago, Congress determined 
that the basic principle is that the Federal Government should be the 
ultimate guarantor of minimum standards for clean water and clean 
air. And there is a rationale for that. It is not just a power grab by 
the Federal Government for the sake of having power. Environmental 
problems do not end at State borders. Dirty air and dirty water move. 
Only the Federal Government can ensure that an up-river or upwind city 
or State does not dump its pollution on downwind or downstream States 
or localities.

  Only the Federal Government can ensure that one area of the country 
does not so lower its standards for clean air or clean water for the 
purpose of attracting business, for instance, to the detriment of its 
neighboring States. Federal pollution standards apply to all sources of 
pollution. It is obvious that you cannot solve the problem if you just 
apply a national solution to one part of the problem, whether or not 
the source of pollution is run by a public or by a private entity.
  I can tell you that a family where the grandparents are suffering 
from emphysema do not care if the incinerator that is belching dirty 
air is publicly or privately owned or operated. They believe that the 
Government has an obligation to ensure that they have clean air. The 
parents whose child gets diarrhea from drinking dirty water does not 
care whether a public or private entity provided that water. They want 
the Government to ensure that the water is pure, regardless of who is 
providing that water.
  During the last 25 years, the Federal Government, in fact, has chosen 
to provide billions of dollars to assist State and local governments in 
complying with some of these pollution control laws. I have fought 
myself for that funding and will continue to do so. But it seems to me 
that when we identify a serious national problem such as dirty air and 
dirty water, dirty drinking water, it is wrong to place a mandate on 
ourselves to say that if we are not able to pay for 100 percent of the 
compliance cost, that a State or local government can escape those 
pollution controls that apply to all other sources of pollution. If we 
took it to its extreme, it would take the concept that is generally 
accepted, which is that the polluter pays. We can turn it on its head 
and say we have to pay the polluter.
  S. 1 could result in vastly different levels of protection for 
citizens throughout this country, or even within one State. Citizens 
living near or downwind from a publicly owned facility could be exposed 
to toxins emitted from an incinerator which could be exempted from 
pollution control standards, while citizens living near a private 
facility would be protected from those emissions because that private 
facility would not be exempt.
  Let me talk about the competitive consequences I have referred to. 
Obviously, results like those I have talked about would put private 
entities at a competitive disadvantage. In a letter to our colleague 
from Idaho dated December 16, 1994, Browning-Ferris Industries, a waste 
management company, discussed some of the potential consequences of 
unfunded mandate legislation:

       The results would severely skew the marketplace in favor of 
     Government rather than the private sector services, because 
     the private sector would have to add in prices to its 
     consumers for compliance with these various Federal rules 
     that customers of the public sector would not have to pay.

  The Environmental Industry Association, in a letter dated January 9, 
1995, an association of a lot of companies that produce environmental 
cleanup equipment and are involved in the waste business, states this--
and they support a lot of this bill:

       Notwithstanding provisions in the bill for parity of 
     treatment between the public and private sectors for the 
     purposes of analysis, there seems to be an inconsistency in 
     actual treatment between the two sectors because the 
     legislation subject to the point of order vote applies only 
     to the Federal intergovernmental mandates and not private 
     sector mandates.

  This is the Environmental Industry Association Business Group:

       We respectfully restate our basic concern that to exclude 
     State and local government--but not the private sector--from 
     the costs of compliance with providing goods and services 
     where both sectors compete would be both unfair and 
     unfaithful to the core principles of the Job and Wage 
     Enhancement Act-- art of the contract for America--of which 
     S. 1 is the first piece.

  Those are strong statements from private sector entities who fear 
exactly the disproportionate burden that this amendment of ours would 
eliminate from the bill.
  Mr. President, the unintended consequences of the legislation, in 
fact, and ironically, may be to encourage an expansion of Government, 
which is exactly the opposite of what the people supporting this in its 
current form want. Government could be motivated to contract out fewer 
services to private industry because the cost charged private industry 
probably would be higher.
  This issue was highlighted for me by the National School 
Transportation Association, which represents the portion of the 
familiar yellow or orange school bus fleet operated by the private 
sector which is about a third of the Nation's school bus fleet. 
Presumably, those school districts which have contracted out this 
function have saved money. But in a letter dated January 10, 1995, the 
private operators point out that one of the consequences of S. 1, the 
legislation before us, may be to remove the incentives for school 
districts to contract out for those services, because by keeping the 
services in-house, the costs of compliance with various Federal 
requirements can be avoided. The letter states:

       Such an outcome would be sharply at odds with the 
     burgeoning wave of privatization that is realizing, for 
     financially strapped school districts, significant savings 
     and could disrupt the level playing field for our industry 
     that has worked so hard over the past decade to achieve these 
     advances.

  Mr. President, I ask that the full text of two letters from the 
National School Transport Association be printed in the Record at this 
point.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                                   National School


                                   Transportation Association,

                                Springfield, VA, January 10, 1995.
     Hon. Joseph I. Lieberman,
     U.S. Senate,
     Washington, DC.
       Dear Senator Lieberman: The National School Transportation 
     Association, representing the nation's owner-operated yellow 
     school bus fleet, applauds your leadership efforts on the 
     unfunded mandates legislation. We are heartened that this 
     session's legislative vehicle contemplates analysis by the 
     Congressional Budget Office (CBO) of regulatory and fiscal 
     impacts on private industry as well as state and local 
     governmental entities. This is a critical provision which 
     must be included in any final legislation if the Congress and 
     the American public are to be fully apprised of the 
     consequences of new federal requirements.
       As the debate moves to the Senate floor and the impacts on 
     private industry competitiveness are assessed, we wanted to 
     bring to your attention concerns of the school transportation 
     industry which reflect those also presented you by Browning-
     Forris Industries and others. NSTA members operate in all 
     fifty states and in total operate some 110,000 buses 
     constituting about one-third of the nation's yellow school 
     bus fleet. School districts have come to realize significant 
     operational cost savings by contracting out pupil 
     transportation services. We are fearful that one unintended 
     consequence of the legislation may be to remove incentives 
     for school districts to consider contracting for these 
     services if by keeping such services in- [[Page S1163]] house 
     the costs of compliance with various federal requirements can 
     be avoided to some degree.
       Such an outcome would be sharply at odds with the 
     burgeoning wave of privatization that is realizing for 
     financially-strapped school districts significant savings, 
     and could disrupt the level playing field our industry has 
     worked so hard over the past decade to achieve. We urge that 
     attention be given to this concern as the debate proceeds. At 
     the very least, any CBO analysis should also include some 
     assessment of impacts on present and future competition for 
     provision of services. If local governmental entities, such 
     as school districts, are to be absolved of responsibility to 
     comply with new federal requirements, then certainly equity 
     and competition demand that like treatment be extended to the 
     private sector.
       We stand ready to work with you and your staff on possible 
     remedies to this problem. Please feel free to contact Peter 
     Slone at NSTA's governmental relations firm, Gold & 
     Liebengood, 202/639-8899 and he would be pleased to provide 
     further assistance. NSTA remains hopeful that this 
     legislation becomes the law of the land and that these 
     unintended consequences can be avoided. Thank you for your 
     careful attention to this issue.
           Sincerely,
                                                       Noel Biery,
     NSTA President.
                                                                    ____

                                                   National School


                                   Transportation Association,

                                Springfield, VA. January 17, 1995.
     Hon. Joseph I. Lieberman,
     U.S. Senate, Dirksen Office Building, Washington, DC.
       Dear Senator Lieberman: The National School Transportation 
     Association (NSTA) applauds your efforts to bring common 
     sense and equity to the debate on unfunded federal 
     intergovernmental mandates. In particular, NSTA 
     enthusiastically supports an amendment you intend to offer 
     which would ensure that nothing in the procedural and fiscal 
     protections established by the bill have the effect of 
     limiting the ability of private sector service providers to 
     compete for the ability to meet the needs of many state and 
     local governmental entities such as school districts.
       NSTA is the national trade association for the owner-
     operated component of the nation's yellow school bus fleet. 
     We have been a leader in advocating safety advances and make 
     a significant contribution to the nation in helping transport 
     some 24 million school children each day. The State of 
     Connecticut has a long tradition of contractor-provided 
     school transportation services with over 90 percent of that 
     state's yellow school bus fleet owned and operated by a host 
     of transportation providers, many of which are small 
     businesses. By contracting out such services, school 
     districts have come to realize more cost-effective and 
     reliable service. Today, NSTA members operate some 110,000 
     school buses in fifty states.
       We are fearful that if the effect of the legislation under 
     consideration is to scale back to some degree the need for 
     school districts to comply with important environmental, 
     workplace, safety and other new federal requirements, then 
     our nation's school children may well be imperiled. Further, 
     by subjecting school districts which operate their school bus 
     fleets to a lesser standard than their private sector 
     counterparts, the Congress would in effect establish a 
     dangerous double standard and remove incentive for 
     privatization of those services. At a time when many school 
     districts are financially-strapped and facing further budgets 
     curtailments, we should promote rather than impede their 
     ability to contract for services where savings could be 
     realized and safe and reliable service ensured.
       Thank you for your leadership role on this important 
     competitiveness issue. We are hopeful that through your 
     thoughtful persistence the nation can avoid unintended 
     consequences from this legislation which raises serious 
     safety and fair market competition issues.
           Sincerely,
                                                       Noel Biery,
                                                   NSTA President.

  Mr. LIEBERMAN. Mr. President, at the same time, by exempting the 
smokestacks and discharge pipes operated by State and local governments 
from complying with future environmental standards, S. 1 would force a 
wide range of businesses to bear even more of the burden to meet 
overall clean air and clean water goals. For example, if publicly owned 
incinerators or landfills do not reduce emissions contributing to smog, 
carbon monoxide, and particulates, private sources of pollution would 
have to do more in order to meet the cleaner environmental goals.
  Let me illustrate, if I might, in a little greater detail how this 
legislation could hurt private businesses. States and businesses 
advocate water pollution laws that establish an overall pollution 
loading limit for individual bodies of water. That has been something 
that the sources of pollution, potential sources, have asked us to do. 
We have done it. This is based on the notion that each body of water is 
best managed for cleanup based on a scientific understanding of what 
that river or lake or bay can withstand in the way of pollution, 
identifying the sources, and then assigning the source's limits based 
on what they contribute. This is very fair, and it creates a 
cooperative effort to clean up a body of water. All sources of 
pollution, whether industry or sewage treatment plants operated by 
cities, get divided up for that pollution limit; so much for this 
sewage treatment plant, so much for that factory, et cetera, et cetera. 
But if publicly owned wastewater treatment plants are permitted to 
discharge, for instance, more nitrates into our rivers and bays, well, 
who are we going to have to turn to to make up the difference to reach 
the standard, the threshold, the goal that we have for cleaning up that 
water? Is it going to be the factory along the water, the rancher, or 
the farmer who is using fertilizer upstream? Not only would S. 1 hurt 
business under this scenario, it would usurp State and local efforts to 
clean up their rivers, bays, and lakes, based on sound science and 
local control.
  Mr. President, those of us who represent States which, in some part 
at least, are victims of pollution from upwind or downstream are 
particularly vulnerable and feel so under this proposal. Let me be very 
specific. If municipal sewage plants in New York will be relieved of 
future requirements to comply with water pollution standards because 
the Federal Government has not paid 100 percent of the cost of that 
cleanup, Connecticut industries and residents will bear a much greater 
burden if we are ever going to clean up Long Island Sound.
  In fact, it would be impossible to ever clean up the Sound if New 
York City sewage treatment plants were exempt from water pollution 
control requirements. New requirements for more flexible approaches to 
cleaning up our rivers, coast lines, lakes, and estuaries focus on 
watershed-based planning in which wastewater treatment plants, 
industrial discharges, and farmers all work together to meet the 
loading tolerance of a particular body of water. These are zero sum 
gains. If the requirements on public sources of water pollution go 
down, the requirements on the private sources will go up and, believe 
me, they will be costly and burdensome.
  Connecticut also has one of the most severe air pollution problems in 
the country, because we are the victims of dirty air transported from 
upwind States. Emissions of sulfur dioxide and oxides of nitrogen from 
powerplants in upwind States, including Midwestern States, contribute 
significantly to our smog problem and are responsible for the acid rain 
that falls on our State and many States throughout New England. If 
powerplants that may be operated by a public entity are exempt from 
future requirements under the Clean Air Act, Connecticut's industries 
will bear a greater cleanup burden, and the plain fact is--and it is a 
sad fact--that our citizens will breathe dirtier air and they will be 
sicker. I share the concerns raised about the potential negative impact 
of unfunded mandates legislation on Connecticut's severe air pollution 
problems, particularly dirty air transported into Connecticut from 
other States, by my colleague Congressman Chris Shays during the markup 
of House unfunded mandate legislation in the House Government Reform 
and Oversight Committee. The same points he raised apply to S. 1.
  Mr. President, let me provide just some general statistics relating 
to the unfair burden that may be inadvertently created by S. 1. In its 
1992 report to Congress, EPA examined the sources of pollution in 
estuary waters. Of the 8,000 square miles of impaired estuarine waters, 
municipal sewage treatment plants affect 53 percent of impaired miles, 
and urban runoff/storm sewers affect 43 percent of those impaired 
miles. Obviously, if we allowed some or all of these sources to be 
exempt from future water pollution requirements, the resulting burden 
on industries contributing to the pollution would rise dramatically if 
we are to succeed in cleaning up our estuaries.
  Mr. President, I find it particularly ironic that we are considering 
this legislation right after we passed S. 2, the 
[[Page S1164]] Congressional Accountability Act, because we finally 
have managed to impose the discipline of our laws on ourselves and now 
we are talking about a huge potential loophole in applying our laws to 
State and local governments.
  In a way, I fear that this act, S. 1, might, if it is passed as it 
reads now, come to be known as the State and Local Government 
Unaccountability Act of 1995.
  There are other consequences of the presumption in S. 1 that could 
result which are perverse and clearly unintended. A town that operates 
its own hospital and incinerator would, in effect, be receiving tax 
dollars from a town where there was a private incinerator and hospital. 
In other words, it is unfair to the taxpayers who pay for the 
disproportionate burden.
  Mr. President, finally, I am also concerned about the potential legal 
issues raised about this point of order that is created in S. 1. In a 
letter to Senators Roth and Domenici, dated January 8, 1995, seven 
professors of law contend that the procedure in this point of order may 
create problems under article 1, section 1 of the Constitution. 
Although it is settled that Congress may delegate to executive agencies 
the power to devise policy to meet congressional objectives, Congress 
must establish an intelligible principle to which the executive must 
conform. These professors state that the procedure in S. 1 might go far 
beyond such delegations because Congress could expressly authorize 
administrative agencies to amend or temporarily nullify statutes which 
could be held to be an unconstitutional attempt to delegate legislative 
powers to executive agencies.
  I do not know if this analysis is correct, but I am concerned about 
it. I am concerned about whether we have assurances that agencies will 
be fair and evenhanded when they determine how to reduce the scope of 
the mandate and whether S. 1 contains adequate safeguards in that 
regard.
  Mr. President, this amendment would simply narrow the scope of the 
second point of order in S. 1. It leaves intact most of S. 1. In fact, 
it leaves intact the 2 points of order that would lie against the 
largest costs on State and local governments of Federal mandates. They 
are all still left intact. It would still ensure, that is to say, that 
a point of order would lie if we do not have full information about the 
costs of mandates to State and local governments. It would still ensure 
that the committee report state whether there is funding for those 
mandates. It would still contain the second point of order for mandates 
that relate specifically to State and local governments, and are not 
part of trying to solve a broader national problem.
  But for those mandates that apply to State, local, or tribal 
governments and the private sector, it would close a loophole that is 
unfair to the private sector and which would potentially exempt State 
and local governments from a whole host of environmental health and 
safety laws. And it would have, therefore, severe consequences, in my 
opinion, for the health and safety of the American people.
  So let us pass a good bill here, Mr. President. I want to vote for S. 
1, but I just feel that, in its current state, it goes too far. Let us 
pass a bill, not a Pandora's box filled with unintended consequences.
  Again, I say, if the American people knew about the impact of this 
legislation, it would have not only unintended consequences but 
undesired consequences, consequences which the American people clearly 
do not desire.
  Mr. President, I urge adoption of the amendment and I yield the 
floor.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I would like to inquire of the sponsor 
of the amendment if it would be possible at this time to enter into a 
time agreement so that we could have some predictability on when the 
next vote may occur. Would an hour and a half, equally divided from 
this point, be in agreement with the Senator?
  Mr. LIEBERMAN. Mr. President, I suggest the absence of a quorum so 
Senators on our side can consult.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. KERRY. 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. KERRY. Mr. President, I will just ask my colleagues if it might 
make sense if one of us kept going while they confer. This Senator has 
no problem with a time agreement. If they want to discuss the time 
agreement, that will be fine, but I think we might use the time 
advisedly.
  Mr. President, I first want to all start by congratulating the 
Senator from Connecticut and also the Senator from Michigan, Senator 
Levin, for their efforts on this bill. I think the Senator from 
Connecticut has done an outstanding job of laying out in great detail 
the problem here, and I am not going to repeat all that he has said.
  I might say, though, I saw that the distinguished majority leader was 
on the floor a moment ago. I heard him prior to that say to the Senate, 
chastising us for not proceeding faster on this bill, that the 
amendments that have been brought have not been relevant to this bill.
  I might say to the distinguished majority leader and to the other 
side that the pending amendment before the Senate right now, I believe, 
is the Gorton amendment; is that correct?
  The PRESIDING OFFICER. The pending amendment is the Lieberman 
amendment to the Gorton amendment.
  Mr. KERRY. I believe, if I am correct, the Gorton amendment is on 
national historical standards; is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. KERRY. I simply point out to my colleagues that this is an 
amendment to a Republican amendment, and the Republican amendment which 
consumed most of yesterday afternoon has nothing to do with this 
legislation. I happen to support the Republican amendment.
  So the Republicans have exercised their right of coming to the floor 
in order to attach to this legislation something they thought was 
important and, in fairness, that right ought to also lie, as it always 
has through the centuries of the Senate, with the other side. So I 
think it is inappropriate at this point, only several days into this, 
to be complaining about the fact that there are some amendments that 
some deem to be relevant but not germane, or germane but not relevant, 
whichever the case may be.

  The Senator also asked somebody to look them in the eye and say they 
want to pass this legislation and they are not delaying it. I will look 
them in the eye if they are here and I will tell them I want to pass 
this legislation and I am not delaying. I will say it again: I want to 
pass this legislation and I am not delaying.
  It seems to me that we ought to be able to work out among Members an 
agreement on a number of amendments that are relevant to this and, 
hopefully, proceed forward in a way that is intelligent. Let me 
emphasize ``intelligent.''
  I remember the majority leader coming to the floor many times last 
year saying to America ``We are not delaying. We are just trying to 
save America from bad legislation.'' Or, ``We are trying to save the 
country from something that goes too far.'' Or, ``We are trying to save 
the country from legislation that we think can be improved.'' That is 
what we are doing, not saving it from a bad idea but making a good idea 
better.
  We support the notion that we need to reevaluate unfunded mandates. 
Mr. President, we should not in the process of passing a bill on 
unfunded mandates do so in an irresponsible way that does not allow for 
fixing what we all know in the legislative process is the capacity of 
one word misconstrued or one word misplaced, to have an unintended 
consequence.
  Moreover, I can remember in 1986 when we passed the Tax Act here. I 
went to Senator Russell Long because we were concerned about a 
particular component of that bill with respect to real estate. He said, 
``Don't worry about that. We will pass that now and come back and fix 
it.'' Being new to the Senate, I believed him. I would not believe that 
statement today. The fact is that we did not come back and fix it. Over 
the years, the results produced, I [[Page S1165]] think, terrible 
unintended consequences of devaluing certain amounts of property in 
America with unintended consequences to banks, to the savings and 
loans, and to a host of economic interests in this country.
  Now, we ought to do a better job, Mr. President, of evaluating the 
cost of programs. It is irresponsible for the Senate to pass a program 
mandating actions by States or local communities of which we do not 
understand the implications.
  I think the days have long passed by which Americans have come to 
conclude that they want to have a better sense of weighing the value of 
a particular environmental concern or a particular health concern 
against the totality of cost or the rate at which that cost might be 
imposed on them.
  I also ask my colleagues to remember back to the 1960's and 1970's 
when a river in Ohio used to catch fire regularly: the Cuyahoga River. 
In response to rivers that caught fire and toxic and hazardous waste 
dumps which we knew were causing cancer and killing people in this 
country, we passed a set of standards.
  A mandate is not just a mandate. It is not just a mandate to spend 
some money. It is our collective view as a Nation of something to which 
we want to aspire. It is our view of a goal or a standard by which we 
want to live. So when President Bush came to the Congress and joined 
the fight to protect the environment and said we ought to have clean 
air, he was expressing the hope and desire of millions of Americans to 
be able to breathe air that is clean. The result was Congress passed a 
notion of how we wanted to live, of a standard.
  Subsequently, in the 1980's, particularly under President Reagan, 
there was an enormous shift in the revenue versus expenditure 
relationship. We all remember the promises made back in the early 
1980's--if we cut taxes and raise defense spending we were going to 
churn up the engine of this economy and we were going to ultimately 
have increased revenues.
  Well, we took the debt of the Nation from $1 trillion to over $4 
trillion in the span of a decade. It was that diminution of the Federal 
partnership throughout the 1980's that has begun to create this new 
rush to reevaluate Federal mandates.
  What happened during the Reagan era was the Federal Government left 
the mandate in place because it expressed the will of the people, but 
it took the money away. That is what has brought Members here. A 
perpetual process of the reduction of funding to States and local 
communities, leaving in place a series of mandates and, indeed, I might 
add, adding some mandates.
  Most of the mandates that we are currently operating under were put 
it place in the 1960's and 1970's--not the 1980's--with the primary 
exception being the Clean Air Act. But I do not think most Americans 
have decided they do not want to breathe clean air. I do not think most 
Americans have decided that they want their kids living next to toxic 
waste dumps, and they are ready to have them get cancer and die. I do 
not think most Americans have decided that they are prepared to have a 
whole erasing of the standards of safety on our roads, on the standard 
of safety that we know have saved lives. I do not think that is what 
they are saying.
  Now, if this bill, unintentionally-- and I insist, unintentionally--
if this bill not as a matter of purpose but as a matter of unintended 
consequence, is going to have the impact of diminishing the capacity of 
people in this country to have those higher standards of health or 
safety, then I think people would think twice. If this bill 
unintentionally creates a disadvantage to the private sector, I think 
people would say ``Wait a minute, is that really what we are meaning to 
do here?''
  Now, I am 100 percent in support of our requirement that we evaluate 
the cost of Federal requirements to both the public and private sector. 
We ought to evaluate how we spend our money. In that evaluation, Mr. 
President, we also ought to consider the full measure of the 
relationship between the Federal Government and the States and 
localities. For instance, we allow the States and localities to benefit 
by virtue of a $66 billion a year deduction on State and local 
government income taxes and other tax deduction.
  In effect, part of the Federal-State partnership and relationship is 
our payment of 40 percent of higher income people's State and local 
taxes. Is that taken into account in this mandate bill? Is that taken 
into account in the requirement of the commission to evaluate Federal 
mandates? The answer is ``no.'' That is an unfunded mandate, in 
essence, on a whole lot of low-income people that do not deduct, 
because that is a benefit that only goes to people who deduct. If you 
itemize your taxes and you deduct you get the benefit.
  So, in effect, the Federal Government is paying for 40 percent of the 
local and State taxes of upper-income people as a consequence of our 
allowing that deduction. There are a whole set of tax expenditures, 
similarly, in the Federal-State relationship for which we are assuming 
the burden.
  Now, I say this as background to this particular amendment that the 
Senator from Connecticut and the Senator from Michigan are joining 
together and bringing to the floor, because it underscores the 
complexity of this relationship. It underscores the fact that if we 
take one piece of this broad mosaic of our economy and we suddenly rip 
it off, we may have a whole set of consequences that impact other 
people. And we are just respectfully suggesting, in an amendment that 
is really very narrow in scope, in a very limited amendment, we are 
suggesting that there is a way for the Senate to legislate 
intelligently and avoid an unintended consequence.
  Now, what is that unintended consequence? Just very quickly to go 
back to my colleague from Connecticut and his excellent description.
  Mr. President, we have a very broad definition in here of a Federal 
mandate. The definition we have in this legislation covers all State 
and local activities including activities where there is a governmental 
role, such as in administering any appropriate program but also where 
there are activities that are not of a governmental nature. So we are 
saying in this bill, any Federal program mandated that covers an 
activity where the activity or entity acts in a governmental way or in 
non-governmental functions we are going to apply this bill.
  If you do that, Mr. President, you are covering activities where the 
Government entities are acting as employers and where they compete in 
the marketplace with the private sector.
  An example of that would be a landfill or an incinerator. You could 
have a local government-owned landfill or incinerator operated in 
competition with a private landfill or incinerator operator. As it is 
currently written, this bill will set up a different relationship 
between the public entity and the private sector. It will exempt the 
public entity from having to live up to a Federal mandate, but it will 
not exempt the private entity from that same mandate.
  So we will continue to say, as I think the American people want to, 
that with respect to the environment or health or public transportation 
safety or workplace safety, we will continue to say, ``You, the public 
entity, are exempt unless we have decided to pay 100 percent, and, you, 
the private entity can continue to operate under the burden of the 
Federal mandate,'' which means that the public entity has a lower cost 
of doing business, which means we have advantaged them in the private 
sector.
  I received a letter from BFI, which is Browning-Ferris Industries. We 
all know them. I know they have written a letter to my colleagues 
subsequently retracting some of what they said in this letter, but not 
retracting the substance, which is what I want to emphasize here. What 
they said to me was:

       Dear Senator Kerry: * * * Without legislative language 
     along the lines of the enclosed, unfunded mandates 
     legislation--even if it is prospective only--

  And I underline.

     could have the effect of subjecting the private sector to a 
     regulatory (and cost) burden that the public sector would not 
     face absent Federal funding. The enclosed language would 
     merely have the effect of assuring a level playing field 
     between the public and private sectors in those instances 
     where there is some form of competition between the two 
     (hospitals, transit, higher education, waste management, et 
     cetera).

  This letter was dated December 22. On January 11, they wrote to 
Senator [[Page S1166]] Kempthorne--I think it is probably in response 
to concern about the other--and they said:

       We expressed our views at a time when one of our concerns 
     was that unfunded mandates legislation could have a 
     retroactive effect. It is evident that S. 1 has a prospective 
     effect only, which we understand was your intent all along.
       After reviewing the legislation that will be considered on 
     the floor and after discussions with your office, we 
     recognize that among your objectives for S. 1 is creation of 
     a favorable climate for the private sector. In fact, S. 1 
     seeks creatively to address the concern in some quarters that 
     unfunded mandates legislation could disadvantage the private 
     sector where public-private competition takes place. 
     Moreover, after many years of experience in working with 
     you--most of them prior to your tenure in the Senate--BFI is 
     convinced that your dedication to free enterprise is 
     unsurpassed.

  They go on to say:

       * * * we are pleased to strongly support S. 1.

  I am not holding them out as not supporting it, but they nowhere in 
their second letter--nowhere--address the concern they express in their 
first letter. They simply say that ``we understand that it is not going 
to be retroactive.'' In their first letter, they said, ``even if it is 
prospective only.''
  The fact is that by taking it out of retroactive, you are not 
diminishing the capacity for future unfunded mandate requirements to 
create this unlevel playing field, Mr. President.
  What would happen is, you would have these public entities that 
engage in the hiring of employees and compete with the private sector, 
they would be exempt from obeying worker protection laws, like the 
Parental and Medical Leave Act; they would be exempt from the 
environmental health and safety requirements which the rest of the 
private sector has to comply with; publicly owned incinerators would be 
exempt from air pollution standards; school buses, as my colleague from 
Connecticut has pointed out, would be exempt from safety standards; 
cars owned by local government could be exempt from emission standards; 
State-owned liquor stores could be exempt from standards of product 
that apply to privately owned stores; publicly owned hospitals could be 
exempt from requirements for the proper disposal of medical waste.
  I do not think anybody in the Senate wants to do that. I really do 
not believe that my colleagues think that is good policy or that that 
is what this bill is supposed to do.
  I know my colleague is going to stand up and he is going to point to 
language added to S. 1 calling for committee report language. And in 
his language in the report he says that the evaluation has to include a 
description of the activities taken by the competition to avoid any 
adverse impact on the private sector of the competitive balance between 
public and private sector.
  However, that is the report. That is not substantive. It is not a 
requirement nor is it an exemption. What that language does is, in 
effect, acknowledge that this is a problem. It says that you have to go 
out and make this evaluation, which means you are going to have this 
imbalance in the marketplace, you are going to have to go make the 
evaluation, you are going to have a point of order lie with respect to 
it, as my colleague has said, then you have to come back and jump 
through hoops of points of order and try to pass something to redress 
what any free enterprise capitalist should not want to have happen in 
the first place.
  In effect, if you pass this bill as is, it is a kind of socialism 
because what you are doing is advantaging the Government against the 
private sector. You are, in effect, voting to say we are willing to 
take an unfunded mandate away from the public entity and we are going 
to leave it on the private entity. That does not make sense to this 
Senator. And for the life of me, I cannot understand why so many folks 
on the other side of the fence are so sanguine about this reality of 
the imbalance.
  I asked them to look at the language. I asked them to measure it. 
This is not an exaggeration. I do not think the Senator from 
Connecticut has anything remotely resembling a reputation that is any 
less than diligent. He is one of the strongest advocates in the U.S. 
Senate for the interests of competition and business and the private 
sector. I think if you take a hard look at this, one has to be 
concerned about this relationship.
  So we are here, respectfully suggesting to our colleagues that the 
goal of making the judgment about expense is absolutely worthy, but to 
undo the partnership completely in a way that imbalances this 
relationship between public and private is not worthy of this 
legislation and it is not what we ought to be seeking to do in the U.S. 
Senate.
  I assure my colleagues, if this happens, we are going to be back here 
revisiting the quagmire of competition or of imbalanced competition 
that we will have created as a consequence of that.
  Again, I say, I applaud the work the Senator Kempthorne and Senator 
Glenn and others have done in trying to create a responsible climate of 
evaluation of costs before we impose them. But there is a 
responsibility in the Federal partnership to try to be fair. I think 
that, regrettably, we will not have met that standard unless we try to 
adopt some change within this legislation.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.


                      Unanimous-Consent Agreement

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that time 
prior to a motion to table the pending Lieberman amendment be as 
follows: 45 minutes under the control of Senator Lieberman; 20 minutes 
under the control of Senator Kempthorne; and 30 minutes under the 
control of Senator Levin; that following the conclusion or yielding 
back of time, Senator Kempthorne, or his designee, be recognized to 
make a motion to table the Lieberman amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. LEVIN. Reserving the right to object--and I do not expect to 
object--Mr. President, I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KEMPTHORNE. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Snowe). Without objection, it is so 
ordered.
  Mr. KEMPTHORNE. Madam President, while this unanimous-consent request 
is being considered on this side of the aisle, I suggest it would be 
very appropriate for the chairman of the Governmental Affairs Committee 
to go ahead with his remarks concerning this amendment.
  The PRESIDING OFFICER. The Chair now recognizes the Senator from 
Delaware.
  Mr. ROTH. Madam President, I strongly oppose this amendment. Its 
effect would be to exempt from the requirements of this act those 
Federal mandates involving State and local government activities, when 
the private sector is also engaged in the same activities. Now, this 
exclusion would seem to appeal to notions of fairness but in fact would 
effectively gut the bill.
  In truth, there is very little that State and local governments do 
that no one in the private sector is also engaged in doing. This is 
especially true since proponents of the amendment include those 
instances where one city franchises a private contractor to render a 
service for which another city might directly use its own employees.
  Trash collection and disposal is one example sometimes cited. Waste 
disposal companies are said to compete with the public sector in that 
they try to convince governments to contract out such service and 
therefore have to show that they can do it cheaper than government.
  It has been argued that Federal subsidies to State and local 
governments would in that type of instance upset some competitive 
balance.
  But other than enacting laws, everything a city or a State does could 
be covered by such competitiveness principles, particularly as more and 
more governments are moving to contract out a broader range of 
functions and services.
  Let me give a few examples. Police departments. Police departments 
compete with private security guards and private residential patrols.
[[Page S1167]]
  Mr. KEMPTHORNE. Will the Senator yield?
  Mr. ROTH. I will be very happy to yield.
  Mr. KEMPTHORNE. I thank the Senator for that courtesy.
  Madam President, I again renew my unanimous-consent request. If 
necessary, I will restate it.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. KEMPTHORNE. I thank the Chair. I thank the Senator from Delaware.
  Mr. ROTH. Madam President, as I was saying----
  Mr. LEVIN. Madam President, if the Senator will yield again, is the 
Senator from Delaware----
  Mr. ROTH. I will be happy to yield without losing my right to the 
floor.
  Mr. LEVIN. Is the Senator speaking under controlled time?
  The PRESIDING OFFICER. The time is now under control. The question is 
yielding.
  Mr. KEMPTHORNE. Madam President, the Senator from Delaware is on my 
time. I will yield 10 minutes to the Senator from Delaware.
  Mr. KERRY. Madam President, I ask if the Senator will just yield for 
a question.
  The PRESIDING OFFICER. Will the Senator yield?
  Mr. ROTH. I would like to complete my statement.
  As I was saying, fire departments compete with private, for-profit 
fire departments such as used by Scottsdale, AZ; public building 
inspectors compete with privately contracted building inspection 
services such as used by Sunnyvale, CA, during building booms; public 
road construction crews compete with private construction contractors, 
and even with private toll roads such as is being built in northern 
Virginia; public schools and community colleges compete with 
proprietary trade schools; public hospitals compete with private 
hospitals; city attorneys compete with private, fee-for-service 
attorneys such as are used by many towns too small to have a full-time 
lawyer on staff; public libraries compete with bookstores and video 
rental stores. Many libraries now lend movie videos. Public swimming 
pools and golf courses compete with private facilities and country 
clubs; municipal revenue collection departments compete with private 
collection agencies such as those that will collect on overdue parking 
tickets for a percentage of the revenue; city computer operators and 
IRM departments compete with private-sector computer service companies, 
such as EDS, which will contract to do a city's payroll; and municipal 
buildings and ground maintenance crews compete with private-sector 
maintenance companies.
  In other words, Madam President, it is not just a few selected areas 
where government and the private sector render the same or similar 
services. Much more than just pollution control and waste disposal is 
involved. This amendment would cover virtually every activity of State 
and local government.
  This is why the distinction between public-sector and private-sector 
activities ought to be decided on a case-by-case basis. In fact, the 
legislation does acknowledge that there may be occasions when such 
issues of competitiveness are of legitimate concern. The bill states 
that committee reports shall explain how the matter has been addressed 
by the committee. Then Congress can judge how best to deal with that 
individual instance where a real problem might exist. Through the use 
of the waiver provision of S. 1, we can decide that funding a 
particular mandate for the public sector is unfair to the private 
sector.
  Madam President, I think this is a far, far better way to deal with 
this issue, and that is why I strongly urge my colleagues to reject 
this amendment. As I stated, its adoption would effectively gut the 
bill. The exception would swallow the whole.
  Madam President, I yield back the remainder of my time. I yield the 
floor.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Ohio.
  Mr. GLENN. Will the Senator from Connecticut yield me 2 minutes off 
his time?
  The PRESIDING OFFICER. Will the Senator from Connecticut yield to the 
Senator from Ohio?
  Mr. LIEBERMAN. Madam President, I yield as much time to the Senator 
from Ohio as he needs.
  Mr. GLENN. I just need a couple of minutes. I want to be added as a 
cosponsor on this legislation.
  I do not see how the Government can possibly come down on the side of 
a government entity that is in competition, in effect, with a private 
industry, whether it is waste management, whether it is water 
provision, whether it is sewer provision, whether it is--whatever--and 
come down and say we will partially federally fund or totally federally 
fund whatever the mandate is with regard to the public entity and give 
that competitive advantage to the public entity in competition with a 
private industry, whether it is electricity or sewer or whatever the 
provision might be.
  So I think the amendment obviously makes sense to me. I ask to be 
made a cosponsor of the amendment and yield the remainder of my time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Chair recognizes the Senator from Connecticut.
  Mr. LIEBERMAN. Madam President, I yield myself as much time as I 
need.
  I have just a brief statement to thank my friend and colleague and 
leader from the Governmental Affairs Committee, the Senator from Ohio, 
for his cosponsorship of this amendment. He has been a leader in the 
whole crusade to force the Federal Government to confront the costs of 
its enactments on State and local governments and on the private 
sector.
  He is a cosponsor of the underlying bill, S. 1, and so I am 
particularly heartened and appreciative that he has agreed to cosponsor 
this amendment, which, in my opinion, does not go to the heart of this 
measure. It goes to the margins, which is its application and 
applicability.
  It is a simple amendment which slightly narrows the definition of the 
term ``Federal intergovernmental mandate'' so it does not include a 
provision ``in any bill, joint resolution, amendment, motion, or 
conference report that would apply in the same manner to the 
activities, facilities or services of State, local or tribal 
governments and the private sector.''
  The Senator from Ohio has stated his concern about the unintended 
consequence here, that this will put disproportionate burdens on the 
private sector in excusing the public sector. Again, I thank him for 
his leadership on this issue and for his support.
  I hope in the end I can join him in supporting S. 1 by itself. I 
yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
  Mr. KEMPTHORNE. How much time do we have remaining on our side, Madam 
President?
  The PRESIDING OFFICER. The Senator has 15 minutes remaining.
  Mr. KEMPTHORNE. Madam President, I yield 5 minutes to the Senator 
from Georgia.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Georgia.
  Mr. COVERDELL. Madam President, I thank the distinguished Senator 
from Idaho for the opportunity to respond to this amendment by the good 
Senator from Connecticut. When the Senator described this as a simple 
amendment it took me back to my days in the State legislature. That was 
the first signal that you had trouble. In effect, this amendment 
renders this legislation that we have been discussing for days upon 
days, and was in preparation for almost 2 years, moot. That is the 
effect of the simple amendment.
  It is simple in the context that it makes this entire effort a moot 
effort, because by saying, as this amendment does, it is not an 
unfunded mandate if it in any way affects the private sector, it has 
the effect, it literally would say, there are no unfunded mandates.
  The curiosity about this for me is that this amendment is being 
offered in the nature of being a defense for the private sector. I have 
always found it curious, when our membership talks about its support of 
the private sector, only to find that the private sector itself 
expresses itself quite differently. [[Page S1168]] 
  I have before me a letter dated January 3, 1994, from the National 
Federation of Independent Business, who support this legislation 
without this amendment.
  I ask unanimous consent it be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                            National Federation of


                                         Independent Business,

                                                  January 3, 1994,
     Hon. Paul Coverdell,
     U.S. Senate, Washington, DC
       Dear Paul: On behalf of the over 600,000 members of the 
     National Federation of Independent Business, I urge you to 
     vote in favor of S. 1, the unfunded mandates legislation, 
     when it is considered by the Senate in January.
       Unfunded federal mandates on the states and local 
     governments end up requiring these entities to raise taxes, 
     establish user fees, or cut back services to balance their 
     budgets. Small business owners are affected by all of these 
     actions.
       Between 1981 and 1990, Congress enacted 27 major statutes 
     that imposed new regulations on states and localities or 
     significantly expanded existing programs. This compares to 22 
     such statutes enacted in the 1970s, 12 in the 1960s, 0 in the 
     1950s and 1940s, and only two in the 1930s. The Congressional 
     Budget Office estimates that the cumulative cost of new 
     regulations imposed on state and local governments between 
     1983 and 1990 was between $8.9 billion and $12.7 billion. 
     These include environmental requirements, voters registration 
     requirements, Medicaid, and others.
       It was not the states and cities who paid roughly $10 
     billion in unfunded mandates during the 1980s; it was 
     taxpayers--small business owners as well as everyone else. In 
     June 1994, a poll of all NFIB members resulted in a 
     resounding 90% vote against unfunded mandates.
       I urge you to strongly support S. 1.
           Sincerely,

                                           John J. Motley III,

                                                   Vice President,
                                   Federal Governmental Relations.

  Mr. COVERDELL. I also have a letter before me from the National 
American Wholesale Grocers Association, a group with a very large 
membership across the country, who support the legislation without the 
amendment.
  I am not going to enter all of these into the Record.
  We have a letter in our hands from the U.S. Chamber of Commerce which 
represents hundreds of thousands of businesses across the country in 
support of the legislation without the amendment. And the list goes on 
and on and on of people who actually are out there meeting a payroll, 
running a business, who have supported the legislation managing 
unfunded mandates as offered by the Senator from Idaho.
  Why the incongruity? Why would we have people here on the Senate 
floor who are suggesting that we have to have an amendment such as this 
to protect the private sector and yet we have this outcry from the 
private sector saying pass the bill as it is?
  The answer is very simple. The private sector is already paying the 
effects of unfunded mandates. If you own a piece of property in any 
city, county, or other jurisdiction across this land of ours, about a 
third--depending on the type of jurisdiction--about a third of that 
property tax bill that you are paying every year is directly related to 
Federal orders--mandates--with no check to pay for them.
  I spoke about the motor-voter bill the other morning, which cost my 
State $6.6 million in the first year and then $2 to $3 million 
thereafter. That is Federal folly. It is totally unnecessary in my 
State. Registration was being handled very adequately.
  So we have a policy wonk in Washington trying to establish what the 
policy on a very local question ought to be and ordering that it be the 
way we think it ought to be in Washington and then sending the bill to 
the local government. That local government bill goes right down, 
ultimately, to an impact on property taxes. And that is why we have 
these letters from the U.S. Chamber of Commerce. That is why we have 
the letters from the National Federation of Independent Business, and 
Grocers, et cetera, et cetera. Because they are bearing the burden.
  Governments do not pay taxes. People and businesses and families and 
corporations, they pay taxes. They are the direct recipients of the 
burden of the last 10 to 15 years of unfettered orders from the Federal 
Government without any payment to cover it.
  Madam President, I will just say one more thing and I will yield my 
time back to the Senator from Idaho. In the final analysis, the other 
aspect of the legislation that is very important to note is that, if 
the impact is greater than $200 million on the private sector, CBO is 
required to publish that knowledge and we in the Senate would have the 
opportunity to understand the impact and by a majority vote, if the 
consequences create a massive destabilization of fair competition 
across our country, we have the prerogative--and for the first time, I 
might add, the knowledge--to understand what we are doing and can act 
accordingly.
  This amendment makes the measure moot. The private sector does not 
concur with the suggestions that they need this type of protection. 
They are for the measure without the amendment. And the reason is 
because they pay for the unfunded mandates in the end.
  I think it is time we moved on and got to this final measure and gave 
America and all America's mayors and county commissioners and school 
superintendents what they have been asking for for nearly 2 years.
  I yield the remainder of my time back to the Senator from Idaho.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
  Mr. KEMPTHORNE. I thank very much the distinguished Senator from 
Georgia, and I reserve the remainder of my time.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Connecticut.
  Mr. LIEBERMAN. Madam President, I will yield in a moment to my 
colleague from North Dakota, but I want to say in response, on my own 
time, to one of the statements made by the Senator from Georgia, that 
the reference to the Motor-Voter Act is in point. I want to reassure 
him that under this amendment, the motor-voter law would still have to 
pass the two hurdles, be subject to the two points of order, and could 
be suspended in its impact if the Federal Government did not pay the 
costs of the State's implementing it because it is a unique 
governmental function.
  The State and local governments, in implementing the Motor-Voter Act 
are not competing with any private sector businesses. This is a 
delegation of responsibility that we put on the States uniquely unless, 
under the terms of the bill which are generally part of S. 1, there was 
an estimate that it would not cost $50 million in any given year of its 
implementation.
  So the example is a good one to indicate exactly how S. 1, if our 
amendment were adopted, would impact mandates, mandates uniquely on 
State and local governments such as motor voter or the large most 
costly mandates that I indicated earlier, and referenced specifically 
earlier, would still be faced with the two hurdles. That is quite 
different from mandates, such as the Safe Drinking Water Act, which are 
aimed at solving a national problem, guaranteeing people pure drinking 
water regardless of whether they get it from public or private sources.
  Madam President, I yield now 5 minutes to my friend and colleague 
from North Dakota [Mr. Dorgan].
  The PRESIDING OFFICER. The Chair recognizes the Senator from North 
Dakota.
  Mr. DORGAN. Madam President, thank you very much. I thank my friend 
from Connecticut.
  The issue of the private sector is one I am well familiar with. 
Senator Domenici and I offered the legislation last year that became 
the basis for the language in last year's bill and also became the 
basis for the language in this year's bill on the private sector. We 
are the ones that indicated that we wanted the private sector included. 
If there is an aggregate cost exceeding $200 million that is going to 
be imposed on the private sector as a result of a mandate, my own view 
was God bless the mayors and the Governors. They certainly have 
legitimate complaints about mandates. But what about the mom and pop 
business on Main Street? What about the private sector folks trying to 
make a living? What about the mandates we impose on them? Why should 
not there be a comparable requirement with respect to the private 
sector? [[Page S1169]] 
  I am pleased to say with the cooperation of the Senator from Idaho 
and active work on behalf of a lot of folks here that that was 
included. And that makes this bill a better bill. We are not just 
concerned about State and local governments. We are concerned about 
them and addressing their interests. But we are also concerned about 
the businessman and the businesswoman all across this country on Main 
Street who also have to respond to mandates.
  There is only a point of order here, not funding with respect to the 
private sector, but a point of order that exists. We are debating a law 
today or proposed law. One of the interesting laws in Congress is a law 
of unintended consequences. It springs up between every desk and in 
every crevice and every day in every way, the law of unintended 
consequences.
  I will tell you what you will hear about this law if you do not pass 
this amendment. You will hear about that law immediately if this 
amendment does not pass. The first time that you have a State or local 
government engaged in an enterprise in which the private sector is 
engaged in the same enterprise and a mandate is moving through the 
Congress, what you have is a circumstance where the Congress will pay 
for the cost of complying for the mandate for the local level of 
government and the private sector competitor out there has said you 
have the same mandate but which we are sorry, partner, you are on your 
own. You have created a competitive unfairness by definition, end of 
argument. You have created unfair competition.
  I heard the last speaker talk about the surprise about the private 
sector. There is nothing about the intent of this amendment that in any 
way erodes or undermines the provisions in this bill that address the 
private sector. I know because I helped write it. Nothing that is 
proposed by my friends with this amendment would undermine those 
provisions of the law.
  The only thing they have tried to do is say where you set up 
conditions in which you will have competitors as between levels of 
government and the private sector, we shall not have circumstances in 
which a point of order will lie if you do not fund it for the 
government but ignore the private sector. That is all the Senator from 
Connecticut is trying to do, and it is why I am pleased to cosponsor it 
and pleased to support it.
  It makes eminent good sense. I hope after it is thought through and 
discussed some that the other side of the aisle would decide to accept 
it. Those who say the private sector does not want this, I will 
guarantee you this. Anybody in the private sector who is going to be 
set up for an unfair situation is going to want this as soon as they 
understand that they cannot compete in that circumstance.
  So let me just again end where I started. This bill includes the 
private sector in a significant and important way. I support that, and 
I helped write it. I helped make sure it was here.
  This amendment does nothing to undermine or erode what we are trying 
to do for the private sector. In fact, this amendment comes to that 
part of the private sector that will otherwise have in my judgment a 
circumstance of terrible unfairness imposed upon it and says we do not 
want that law of unintended consequences to come from this piece of 
legislation.
  If we do not include this, I guarantee you we will discuss this again 
on the floor of the Senate. I guarantee you that those who discuss it 
will not be able to stand up and defend the circumstance that brings it 
to our attention the next time.
  Madam President, I yield the floor.
  Mr. LIEBERMAN. Madam President, I thank my friend and colleague from 
North Dakota. His advocacy for small business, for small farmers, and 
for common sense is well known and respected in this Chamber. He did in 
fact help write the bill, in fact strongly supports the underlying 
purpose of the bill, but also supports the amendment which gives me 
great confidence to go forward. I thank him for his very eloquent 
words.
  Madam President, I ask unanimous consent that the Senator from 
Nebraska [Mr. Kerrey] be added as cosponsor of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. Madam President, I would at this point yield up to 10 
minutes of my time to the Senator from New Jersey [Mr. Lautenberg].
  The PRESIDING OFFICER. The Chair recognizes the Senator from New 
Jersey.
  Mr. LAUTENBERG. I thank the President and the distinguished Senator 
from Connecticut.
  I want to take this opportunity to talk on behalf of the support for 
this amendment offered by the distinguished Senator from Connecticut, 
Senator Lieberman, which will exempt from S. 1 all legislation that 
affects the private and public sectors.
  Equally knowing that this amendment is recommended and authored by 
the Senator from Connecticut comes as no surprise. He is thoughtful. He 
recognizes from his own experience on the Environment and Public Works 
Committee, and the things that we have attempted to do for some time 
now, the need to go to the private sector wherever possible to get the 
job done, whatever that may be, most efficiently.
  So I think this is an appropriate amendment. I am not sure where the 
controversy lies between the two parties because this amendment by any 
count really makes sense and it is consistent with the review over the 
last couple of years, the last several years, to turn, as I said 
before, to the private sector whenever we can do so.
  Just last week, we passed the congressional coverage bill because we 
said that Congress should be subject to the same laws as everyone else. 
It would be absurd if only a week later we passed legislation which 
exempted State and local governments from the laws which applied to the 
private sector. But that is exactly what S. 1 as currently written 
does.
  Under this legislation, the presumption is that States and local 
governments will be exempt from requirements that apply to the private 
sector unless the Federal Government foots the bill for compliance.
  At the same time firms operating in the private sector--and there is 
example after example--I mean private water treatment facilities versus 
public water treatment facilities, sewage facilities, privately and 
publicly, but firms operating in the private sector would have to 
comply with these requirements, with these standards that are set by 
perhaps the Federal or the State government even though no one would be 
helping them to pay the costs of compliance, setting a competitive 
condition that is contrary to the mission that all of us have these 
days--that is, to get the job done in the best way possible for the 
least cost, in the most efficient manner. This is not just a 
theoretical inequity, it can have real and serious consequences. For 
example, in many jurisdictions, waste treatment facilities, as I said, 
are operated by government entities as well as private firms, each with 
the same obligation.

  Under S. 1, the State-owned facility would not have to comply with 
any new laws designed to reduce pollution, unless the Federal 
Government pays the cost.
  The private-sector competitor, however, would not have any choice. 
They would have to comply, and they would have to pay.
  Consider the case of a research facility in a State university and a 
private-sector firm conducting similar research. S. 1, as currently 
drafted, institutionalizes a competitive advantage for the State-run 
facility and punishes the private-sector enterprise. That is not, I am 
sure, what the authors intended. But it is the result.
  Madam President, many of those who support this legislation recognize 
the problem and want to fix it. Indeed, earlier in our consideration of 
this bill, an amendment was adopted which will require committees to 
consider the disparate impact of mandates and mandate relief on public 
and private concerns. But while recognizing the problem, that language 
does nothing to correct it. It does not provide the kind of assurance 
or consistency which is needed to deal with the problem.
  The amendment of Senator Lieberman, however, addresses the problem we 
all seem to recognize in a meaningful way. Under the amendment of the 
Senator from Connecticut, State and local officials would have to 
follow the same Federal laws as everyone else. Our workers and our 
environment [[Page S1170]] would be protected similarly, and private 
businesses would have a level playing field.
  So I believe this amendment is essential to a fair and equitable 
unfunded mandates bill, and I strongly urge my colleagues to support 
it.
  I yield the floor.
  Mr. KEMPTHORNE. Madam President, I yield 4 minutes to the Senator 
from Missouri.
  The PRESIDING OFFICER. The Senator from Missouri [Mr. Bond] is 
recognized.
  Mr. BOND. Madam President, I thank the manager of the bill. I rise as 
a very strong supporter of S. 1, the unfunded mandates bill.
  I came to this body having served 8 years as Governor of Missouri, 
and I found that State government budgets were devastated by the costs 
of Federal mandates. I also know that they have been devastating in 
their impact on local governments. Kansas City, MO, finds the one-time 
cost to the city of implementing all the federally mandated 
environmental regulations in 1993 was some $56.2 million. Local 
governments are seeing their budgets robbed by Federal mandates. State 
governments find that they cannot utilize the tax dollars they want to, 
as they believe their voters and constituents want to, because they are 
preempted by the Federal Government.
  I believe this is a good measure. I took a look at this amendment 
that has been crafted by my good friend from Connecticut. I read it, 
and it is absolutely stunning in its simplicity. It says that Federal 
or governmental mandates does not include any provision in any bill 
that would apply in the same manner to activities, facilities, or 
services of State and local or tribal governments and the private 
sector.
  Madam President, that wipes out a tremendous sector of where the 
Federal mandates hit the State and local governments. That is not just 
a loophole big enough to drive a truck through, that is a loophole big 
enough to push this whole Capitol through.
  Motor-voter, as mentioned by my colleague from Connecticut, may be 
one of the few areas that would not be exempted. But all of the other 
laws that impose the burdens on State and local governments would be 
wiped out. Is this an automatic requirement that we fund State 
governments and local governments in competition with the private 
sector? No. It simply says that you have to consider that; you can 
waive that. There is no requirement that we cannot change by a majority 
vote--and that will be brought to the attention of this body--if there 
is an impact on governmental and private-sector entities.
  I have been made almost breathless by the statements of concern for 
the private sector from some sectors where I have not traditionally 
heard that support. I hope that those same people will support us in 
privatization efforts.
  Frankly, what we are talking about here is an exemption that is so 
broad that it will make the basic provisions of S. 1 not applicable in 
most of the expensive areas where State and local governments are 
significantly oppressed by Federal Government mandates.
  I urge my colleagues to reject this amendment. This bill is vitally 
needed. Governors, mayors, legislators, Republican and Democrat, across 
this country, particularly in my State, know that we need S. 1. They 
cannot afford to have S. 1 with this kind of loophole put in it.
  I urge my colleagues to reject the amendment.
  I reserve the remainder of my time.
  Mr. KEMPTHORNE. Madam President, I thank the Senator from Missouri so 
much for his perspective as a former Governor and for expressing the 
importance of this legislation.
  I reserve the remainder of my time.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan [Mr. Levin] is 
recognized.
  Mr. LEVIN. Madam President, before I get to the amendment pending 
before us, I would like to use part of the time that has been allocated 
to me under this unanimous-consent agreement to pick up kind of where I 
left off the other day, about the bill itself.
  I think, like most of us, that we must address the problem of 
unfunded mandates. I was a cosponsor of last year's bill. I am a former 
local official. I understand the impact of a mandate when Washington 
imposes it on us at a local level. By the way, private business persons 
understand those impacts, too. So we have to understand that it is not 
just local and State governments that are concerned with mandates 
imposed by us. The private sector is concerned with mandates imposed by 
us, as well. This bill treats them differently.
  Sometimes the private sector and public sector are in direct 
competition; yet, they are treated differently in this bill. I am going 
to get to that in a minute when we talk about the amendment of the 
Senator from Connecticut.
  I want to talk about, first, some of the problems that I see in the 
bill itself. First of all, it has been suggested that because 
amendments are being offered--there are many amendments that are going 
to be offered, and there are many that are needed, and some of them 
have already passed--that, therefore, people are filibustering this 
bill.
  I have seen some pretty strange things in this Senate, but I have not 
seen many people filibuster their own bills. The Senator from Ohio, who 
is the ranking member of the Governmental Affairs Committee, is the 
prime cosponsor of S. 1. He was the principal sponsor last year of the 
bill that came to the floor. He believes vehemently in what is in this 
bill. He also, very strongly, opposed cloture--Senator Glenn did--
because it would have immediately wiped out a whole host of relevant 
amendments--I emphasize ``relevant amendments,'' relevant to this bill. 
They were not technically germane for postcloture purposes, but they 
were very relevant to the bill, including a substitute which he is 
considering offering which is closer to last year's bill.
  Are we serious that we want to prevent the ranking member of the 
Governmental Affairs Committee from offering a substitute bill similar 
to the one he sponsored last year? Is that a fair treatment of minority 
rights, to tell the former chairman, whose bill this was last year, 
that now as ranking member he will be preempted because of a technical 
postcloture rule from offering a substitute to this bill, should he so 
choose? I think the answer is no.
  Therefore, when the Senator from Ohio and the Senator from Nebraska, 
who is also a cosponsor of S. 1, who is the ranking member of the 
Budget Committee, vote against cloture so that Members can continue to 
offer relevant amendments, the suggestion that they are, therefore, 
participating in a filibuster means they are filibustering their own 
bill--a bill that their name is on. When you look at the sponsors of S. 
1, the third name on that sponsorship list is the Senator from Ohio. 
The sixth name is the Senator from Nebraska, Senator Exon, and so 
forth. This bill is different from last year's bill in some very 
significant ways.
  Again, I cosponsored last year's bill. I would like to vote for this 
bill. I hope to be able to do it. But I am determined, and others are, 
too, that we are going to take the time to analyze some very, very 
significant provisions that will change the way we function on the 
floor here when amendments are offered, when bills are brought up. 
There is a new point of order in this year's bill, a very significant 
point of order, which was not in last year's bill which can be raised 
on any bill that does not fund that mandate for State and local 
governments under certain circumstances.
  Now what has been the delay? Well, a couple of the days that have 
been used here were simply used to extract committee reports. On both 
committees, both Budget and Governmental Affairs, we made an effort to 
obtain committee reports. The effort was rejected on a party-line vote.
  Now why--when you have a bill that is introduced on a Wednesday 
night, that goes to a hearing the next morning, that is supposed to be 
marked up the next day, that is very different from last year's bill--
we are not given a committee report without being put through the 
process that we had to go through here this week to get committee 
reports, I do not know. But we were put through that process in both 
committees.
  There was an amendment offered. Senator Pryor, in Governmental 
Affairs, asked for a committee report so that Members of this body 
could study these provisions. They are very, very 
[[Page S1171]] significant provisions. Senator Pryor's motion in 
Governmental Affairs was tabled on a party-line vote. A similar thing 
happened in the Budget Committee. And so the effort was made then on 
the floor, finally successfully, to get committee reports. That took 2 
days.
  Now, in committee, I offered an amendment which said that if the 
Congressional Budget Office cannot make an estimate of the cost of an 
intergovernmental mandate, that it should be able to say so, just the 
way the bill allowed a mandate in the private sector to be so regarded 
by CBO. If the Congressional Budget Office is unable to say what the 
costs of a mandate on the private sector are, under this bill, it was 
allowed to say so. But purposefully, explicitly, the bill did not allow 
the Congressional Budget Office to say that it could not estimate the 
cost of an intergovernmental mandate.
  And let us be real clear: It is that estimate that is so critical. It 
triggers all kinds of activities. It requires appropriations to be in 
the amount of the estimate. So that estimate is the critical triggering 
device in this bill.
  In last year's bill, if there were not an estimate, it would be 
subject to a point of order. And that was fine. This year's bill goes 
way beyond that, because it creates a point of order if we do not 
either appropriate directly the money to equal the estimate or unless 
we do some other things to make sure that downstream there is an 
appropriation for that estimate. So that estimate becomes absolutely 
critical.
  But what happens if the CBO cannot make the estimate? I offered an 
amendment in the committee saying they ought to be able to say so. If 
it is absolutely impossible to make an estimate--for instance, if the 
amount of the mandate is going to depend upon the action of an agency 
which has not been taken, if it depends upon the content of a 
regulation that has not been written, then it may be impossible to say 
so. Let them be honest. That amendment was rejected in committee on a 
party-line vote.
  Now, why have we used so much time in the last few days? For many 
reasons. One of them is I spent 3 hours here the other day debating 
that issue as to whether or not the CBO ought to be able to state that. 
And finally, today, we adopted the amendment which was rejected in 
committee. Was that useful? You ``betcha.'' It is going to make a big 
difference when this bill becomes law--and I have no doubt that this 
bill will become law--it is going to make a major difference as to how 
the Congress operates. Because there will be times, we have been told 
by the CBO, when they will not be able to estimate how much an 
intergovernmental mandate costs.
  There have been other reasons we have used up some time. We had an 
amendment by the Senator from Washington on the Republican side, 
totally nongermane, totally nonrelevant to this bill. It took us hours 
yesterday, hour after hour after hour, on a totally nonrelevant, 
nongermane amendment having to do with education standards.
  There are a lot of problems with this bill and they need to be 
addressed. This bill says that certain civil rights laws that protect 
people against discrimination based on race, religion, gender, ethnic 
origin, or disability are not the subject of this bill; that States and 
local governments are going to have to comply with those without any 
mandate protection in this bill.
  Well, they left out a few things, including age. Do we want to 
protect people from age discrimination the way we do from race 
discrimination? I think so. Do we want to correct that? I hope so. And 
I will offer an amendment later on to correct it.
  Is that dilatory? Is it dilatory to suggest that, since every 
amendment that any Member of this body might offer is subject to a 
point of order unless it contains a certain estimate as to how much it 
might cost State and local governments, every one of us is going to be 
subject to this point of order when we offer an amendment? And I think 
most of us probably say, that is right. Many think it should apply to 
amendments. But that is not my argument here.
  The bill says that the point of order applies to amendments. An 
amendment which we offer must have that estimate of the cost to State 
and local governments or it is subject to a point of order. Can we get 
the estimate as individual Senators? Do I have a right to it? My 
amendment is going to be subject to a point of order if I do not have 
it.
  Well, the bill says only the committee chair and the ranking member 
can ask for the estimate. That is what the bill says. Is my legislative 
life then going to be put in the hands of the committee chair and 
ranking member? Maybe they disagree with my amendment.
  I am going to be offering an amendment which says any individual 
Member has a right to ask for the estimate, which is so crucial if that 
person's amendment is not going to be subject to a point of order. That 
just seems to me to be fundamentally fair and required and protects all 
of us.
  This has nothing to do with private and public and whether we should 
have an estimate and all of that. This just goes to a basic right of a 
Member to obtain the estimate, which is absolutely essential under this 
bill to avoid a point of order on his or her amendment.
  Now, is that germane after cloture?
  We have been told it is probably not germane. Is that dilatory? Is 
it, in any fair sense of the word, dilatory for Members to clarify that 
issue by an amendment? It is surely relevant. I am confident that the 
Parliamentarian would rule it is relevant. But it is not germane, 
technically not germane, because postcloture is a very, very tight 
definition of germaneness.
  Do we want to clarify it? Is it worth taking a few days? This bill 
will not be effective by its own terms until next January. Now, maybe 
some people will suggest that does not mean we should not use all the 
time between now and next January debating that bill. I could not agree 
more.
  I can see my friend from Mississippi, the wheels in his head moving 
around. I beat him to it. I hate to take away a good response. So be 
it. Is it worth taking a few days, a few weeks, if necessary, to answer 
these amendments? These are relevant amendments. They affect each one 
of us. I think it is.
  Now, getting to the amendment of the Senator from Connecticut.
  Mr. LOTT. Will the Senator yield?
  Mr. LEVIN. I am happy to yield.
  Mr. LOTT. The Senator was kind enough to mention my name and is 
fixing to get to the important discussion of the amendment. The Senator 
is absolutely right, even though we take a little time, it will not go 
into effect until January.
  I want to make this point. I am pleased that we are now getting to 
some substantive amendments. This one clearly needs to be thought about 
and debated as it is being debated. I presume there are a few more. I 
think that the work that has been done by the distinguished floor 
managers on this bill last year and this year, a lot of good work has 
already been done. Surely there are a few good amendments. We should 
get to them.
  Nobody here believes that there are 78 on your side or 30 on our 
side. Let Members get this list dwindled down to the amendments that 
really are relevant. Let Members talk about those. I suspect that some 
of them will be accepted, and we will get the job done and move on.
  Certainly there is not a railroad involved here. We are taking lots 
of time on this legislation. I do think that the leader is right to 
expect that after 5 days we get down at least to the relevant or 
germane amendments. We are about to get there.
  Here is my question to the Senator, if he would yield for the 
question. The Senator was talking about when would this be used. It 
seems to me that there would not be a whole lot of amendments that this 
might apply to. We are talking about a relatively small number, the 
dollar amount that is involved here. Is it not true that you probably 
would not have this applying that often? I am asking from genuine 
curiosity. How much are we talking about that would really kick in, $50 
million?
  Mr. LEVIN. There are 800-some bills, which estimates were able to be 
made on the bills as I understand it in the last 12 years. That is 
where estimates could be made. And a whole bunch that could not be 
made. I do not think that the current law which requires that an 
estimate be made, some act as though there has not been a law on the 
books [[Page S1172]] that requires these estimates of intergovernmental 
mandates to be made. There has been a law on the books.
  I am not sure many of us have read those estimates they have made, 
but nonetheless to answer the Senator's question directly, I do not 
believe it is applied to amendments. So, we are skating out on a new 
pond. The language applies this now to amendments, the point of order 
to amendments relative to intergovernmental mandates. When I say ``the 
law'' I am talking about estimating the amount of the intergovernmental 
mandate, the mandate on State and local government.
  To try to directly address my friend's question, we do not know 
whether or not that threshold of $50 million per year some year down 
the road--could be 10 years down the road--is reached until we ask for 
the estimate. So how many amendments will, in fact, be calculated or 
estimated to include an intergovernmental mandate of more than $50 
million in any one of 5 fiscal years after it becomes effective? There 
are an awful lot of squishy words in there, by the way, but how many of 
them? What percentage of our amendments? I do not know. I just cannot 
answer.
  Mr. LOTT. Mr. President, let me conclude, because I know the Senator 
wants to make some other points. Perhaps the Senator would want to 
respond to this.
  I have found the people out across the country, certainly my State, 
are astounded when they find out that in fact we do not know the cost 
estimates of amendments that we are offering on the floor. They are 
shocked. We wander in here and say, hey, here is my amendment. It might 
cost $10 million, or $50 million, or $200 million, and they say, ``you 
mean, you don't know?'' Do you not think the people would want Members 
to know the consequences of our amendments on the floor? I think that 
is what this bill does. Which I believe the Senator supports.
  Mr. LEVIN. I do. I agree with that. The problem is not the 
requirement that there be an estimate. That is not the problem.
  Mr. LOTT. Without an estimate, how do we know?
  Mr. LEVIN. The Senator asked me what percentage, and I am saying how 
do we know without an estimate. So I could not answer your question as 
to what the percentage is without these estimates being made. They have 
not been made yet on amendments. So, we will find out.
  I agree, we should know the consequences of our acts. We should know 
the impacts on local and State governments. I used to be that local 
official 8 years. I came to this town because I did not like what the 
Federal Government was doing to me and my town--not me personally but 
my town--including mandates, including the way they operated programs. 
Believe it or not, that was a big part of my first campaign. As a local 
official I understood that. And I still believe it. And we should know 
the consequences of our acts.
  Now, this amendment that is pending before the Senate is saying there 
are some areas where we sure should equally know the consequences on 
the private sector, and equally treat the private sector. There are 
areas where the private sector and the public sector are in direct 
competition. You have a hospital, one is a publicly owned hospital, 
say, university hospital, the other one is a private hospital. They are 
in competition. You can take two incinerators or two anything. Now, 
assume that in our wisdom or lack of wisdom--there will be a debate 
over that--there is an increase in the minimum wage. I do not want to 
debate the wisdom of the increase in the minimum wage, but assume there 
is an increase in the minimum wage. Do we really want to create a 
presumption that the private hospital is not going to have to pay that 
minimum wage increase but--excuse me, let me reverse it. Do we want to 
create the presumption that the private hospital is going to have to 
pay the increase in the minimum wage but that the public hospital is 
going to be off the hook unless we pay their increase in the minimum 
wage? Do we want to create that presumption?
  Now, I had an amendment in committee which said, no, we will not do 
that when it comes to those employment laws like minimum wage and 
family and medical leave. We should not create that presumption. The 
amendment before that is a broader amendment, addressing the same 
point.
  Take the two incinerators.
  Mr. KEMPTHORNE. Would the Senator yield?
  Mr. LEVIN. I am happy to.
  Mr. KEMPTHORNE. Mr. President, just in response to that, this concept 
of having a public hospital, the private hospital, are we going to 
presume that we would then proceed and only pay for a minimum wage 
increase on the private hospital?
  Mr. LEVIN. Mr. President, the bill does not presume that we will pay 
for the increase on the private hospital. It does create a presumption 
that we will for the public hospital. Of course it can be waived by 50 
votes. There is a presumption in the bill.
  Mr. KEMPTHORNE. That is the point, Senator, that is the point. If 
that scenario were to unfold, No. 1, would it not be very healthy for 
the Senate to have the information as to what is the cost of that 
mandate?
  Mr. LEVIN. So far we are together.
  Mr. KEMPTHORNE. In minimum wage.
  Mr. LEVIN. Together so far.
  Mr. KEMPTHORNE. Ask to have a CBO analysis on the cost and on the 
private sector.
  Mr. LEVIN. We are together.
  Mr. KEMPTHORNE. What sort of cost is it to the private sector?
  Mr. LEVIN. We are together.
  Mr. KEMPTHORNE. What sort of adverse impact might that have on 
competition between the public and private sector?
  Mr. LEVIN. So far so good. Keep going.
  Mr. KEMPTHORNE. Then we are together.
  Mr. LEVIN. Mr. President, no, no. Excuse me, I will reclaim my right 
to the floor and then I will be happy to yield.
  This bill goes one step beyond that and creates the presumption that 
we are going to either pay for that increase for the public hospital or 
waive it. It does not do that for the private hospital.
  So, we go right down the road together, arm in arm as last year's 
bill did, which the Senator from Ohio is the prime sponsor of.
  This year we go one step further. This year we create the 
presumption, and it is pretty embedded in there, that we will pay. We 
are implying to people, we are sending out the message, we are creating 
an assumption that we will either pay that increase for the public 
hospital or waive it.
  That is where we have problems.
  (Mr. COVERDELL assumed the chair.)
  Mr. KEMPTHORNE. Will the Senator yield?
  Mr. LEVIN. I will be happy to yield.
  Mr. KEMPTHORNE. I certainly will respect your time. But, Mr. 
President, that is the point. There is all of this emphasis, all of 
this discussion on a point of order. At any point--at any point--you 
may seek a waiver of that point of order. In all likelihood, if you are 
going to have an increase in the minimum wage, we all know that will 
require a majority vote in the Senate. It may be the same majority that 
would also vote to waive that. The point of order also is not self-
executing. Somebody has to raise that point of order.
  Mr. LEVIN. One Senator.
  Mr. KEMPTHORNE. One Senator has to raise that point of order.
  Mr. LEVIN. Correct. Is there any doubt in your mind one Senator will 
raise any point of order? There is not 1 out of 100 Senators who 
opposes--by the way, the Senator from Idaho is a cosponsor of last 
year's bill.
  Mr. KEMPTHORNE. Yes.
  Mr. LEVIN. Which does not go as far as this year's bill does and 
create this presumption that we are going to treat the public sector 
different when it comes to funding this mandate than we will the 
private sector. It is not as though last year's bill was a weak bill. I 
do not think my friend from Idaho would have cosponsored a weak bill. 
Last year's bill was a strong bill, which went right down the road, 
step by step--and you outlined those steps. I agree with each of those 
steps.
  This year's bill adds that additional point of order, and it is there 
that it creates a competitive disadvantage, in many cases, to firms 
that are competing with each other. And that is where the amendment of 
the Senator from [[Page S1173]] Connecticut will allow us to say that 
if it applies to both, to both incinerators, public and private, that 
we should then deal with them in the same way.
  I wonder if I could ask of the Chair how much time I have left.
  The PRESIDING OFFICER. The Senator has 5 minutes remaining of his 
time.
  Mr. LEVIN. I thank the Chair.
  I just want to read from some letters from the private sector, from 
some parts of the private sector.
  This is a letter from the Environmental Industry Associations. There 
are three associations that are part of a larger umbrella group. I 
understand this has about 2,000 total members. This includes the 
National Solid Waste Management Association, the Hazardous Waste 
Management Association, and the Waste Equipment Technology Association. 
We all understand that the private sector is divided on this bill, that 
there are parts of the private sector--for instance, I understand the 
Chamber supports the bill--but there are parts of the private sector 
that are the most likely ones to be directly impacted that have a lot 
of problems with this bill.
  I want to read from just one portion of the private sector. Again, 
this is three different subassociations that are represented here, 
about 2,000 members:

       Notwithstanding provisions in the bill for parity of 
     treatment between the public and private sectors for purpose 
     of analysis--

  And this is what my friend from Idaho was talking about, for purpose 
of analysis.

     there seems to be an inconsistency in actual treatment 
     between the two sectors because the legislation subject to 
     the point of order vote applies only to Federal 
     intergovernment mandates and not private sector mandates. We 
     respectfully restate our basic concern that to exclude State 
     and local government--but not the private sector--from the 
     costs of compliance with unfunded mandates in conjunction 
     with providing goods and services where both sectors compete 
     would be both unfair and unfaithful to the core principles of 
     the Job Creation and Wage Enhancement Act, of which S. 1 is 
     the first piece.

  So there is a significant portion of the private sector that very 
much is troubled by this.
  I ask unanimous consent that the letter from those three associations 
that make up the Environmental Industry Associations be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                          Environmental Industry Associations,

     Re: S. 1, Unfunded Mandate Reform Act of 1995.
                                                  January 9, 1995.
     Hon. Dirk Kempthorne,
     U.S. Senate, Washington, DC.
       Dear Senator Kempthorne: I recently wrote you, December 22, 
     1994, on behalf of the Environmental Industry Associations 
     (EIA) to provide you our viewpoint on the important matter of 
     unfunded federal mandates. Now that we and other stakeholders 
     in this debate have had the benefit of a Joint Committee 
     hearing on this initiative, I want to provide you with 
     additional comments as your bill goes to markup and an early 
     floor vote.
       We are pleased that the bill requires that the 
     Congressional Budget Office (CBO) provide legislative 
     authorizing committees and agencies anticipating rule 
     promulgation detailed economic and competitive impact 
     analysis on both intergovernmental and private sector 
     mandates. Clearly, this is a major improvement to promote 
     more informed and deliberate decisions by Congress on the 
     appropriateness of federal mandates in a given instance. We 
     are especially pleased that the accompanying CBO Report on 
     federal mandates must include a statement of the degree to 
     which the mandate affects both the public and private sectors 
     and the extent to which federal payment of public sector 
     costs would affect the competitive balance between State, 
     local, or private government and privately-owned 
     businesses.'' (Committee Print, page 14, line 3-9). Again, we 
     voice our strong support for this centrist approach.
       Notwithstanding provisions in the bill for parity of 
     treatment between the public and private sectors for purpose 
     of analysis, there seems to be an inconsistency in actual 
     treatment between the two sectors because the legislation 
     subject to the point of order vote applies only to federal 
     intergovernment mandates and not private sector mandates. We 
     respectfully restate our basic concern that to exclude state 
     and local government--but not the private sector--from the 
     costs of compliance with unfunded mandates in conjunction 
     with providing goods and services where both sectors compete 
     would be both unfair and unfaithful to the core principles of 
     the Job Creation and Wage Enhancement Act, of which S. 1 is 
     the first piece.
       To ensure that there is a level playing field between the 
     public and private sectors, we suggest that the term `Federal 
     intergovernmental mandate' beginning on Committee Print, page 
     4, line 22, be amended by including a new paragraph ``(C)'' 
     following line 14, pages 6, that would read as follows:
       (C) The term `Federal intergovernmental mandate' shall not 
     include any mandate to the extent it affects the commercial 
     activities (including the provision of electric energy, gas, 
     water or solid waste management and disposal services) of any 
     state, local or tribal government.
       We look forward to working with you in the months ahead by 
     providing the views of our members on legislative initiatives 
     in which they have an interest.
           Sincerely,
                                         Allen R. Frischkorn, Jr.,
                                                President and CEO.

  Mr. LEVIN. Mr. President, let me read a letter from Consumers Power 
Co. This is a major energy supplier in my home State of Michigan. This 
is dated January 11:

       The Unfunded Mandate Reform Act of 1995 is intended to 
     relieve State and local governments of unfunded Federal 
     mandates. While we support the intent of the bill, Consumers 
     Power Company has some concerns over the impact the bill 
     would have on investor owned electric utilities and its 
     customers. We believe it will have the effect of placing 
     certain private companies at a competitive disadvantage with 
     local governments when they provide identical services.
       Consider, for example, that the private sector would be 
     required to comply with Federal environmental mandates at 
     costs creating intolerable competitive disadvantages, while 
     the public sector would be excused from compliance because 
     funding is not provided by the Federal Government. Compliance 
     with Clean Air Act Amendments of 2001, should they pass, 
     would be such a case. Should municipal utilities be exempt 
     from NOx reduction requirements because the Federal 
     Government does not pay for implementation?

  I ask unanimous consent that the entire letter be printed in the 
Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                              Consumers Power,

                                 Washington, DC, January 11, 1995.
     Hon. Carl Levin,
     Russell Senate Office Building, U.S. Senate, Washington, DC.
       Dear Senator Levin: The Unfunded Mandate Reform Act of 1995 
     (S. 1) is intended to relieve state and local governments of 
     unfunded federal mandates. While we support the intent of the 
     bill, Consumers Power Company has some concerns over the 
     impact the bill would have on investor owned electric 
     utilities and its customers. We believe it will have the 
     effect of placing certain private companies at a competitive 
     disadvantage with local governments when they provide 
     identical services.
       Consider, for example, that the private sector would be 
     required to comply with federal environmental mandates at 
     costs creating intolerable competitive disadvantages, while 
     the public sector would be excused from compliance because 
     funding is not provided by the federal government. Compliance 
     with Clean Air Act Amendments of 2001, should they pass would 
     be such a case. Should municipal utilities be exempt from 
     NOx reduction requirements because the federal 
     government does not pay for implementation?
       Senator Thad Cochran intends to introduce an amendment, as 
     early as today, which would correct this unintended 
     competitive disadvantage. We urge your support for the 
     Cochran amendment which explicitly assures that where state 
     and local governments engage in commercial activities, they 
     must meet the same requirements as private firms offering the 
     same product or service.
       Attached for your review and consideration is the draft 
     amendment language. Please call me or Mary Jo Kripowicz of my 
     Washington staff should you wish to discuss this issue 
     further.
           Sincerely,
                                                 H.B.W. Schroeder.

  Mr. LEVIN. So, Mr. President, a number of these amendments raise very 
important points. I, too, am glad that we finally have gotten to these 
kinds of amendments, and there will be a number of other amendments 
that are offered. But this is one of the most significant amendments 
for us to consider and worry about. However we vote on this amendment, 
I think each of us ought to be concerned about the possible competitive 
disadvantage that this bill is likely to place the private sector 
companies in that compete with the public sector.
  I want to commend my friend from Connecticut for his tremendous work 
in this area and his concern for the private sector. I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I am proud to yield 1 minute to the 
senior Senator from Idaho. [[Page S1174]] 
  The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
  Mr. CRAIG. Mr. President, I thank my colleague, Senator Kempthorne, 
for yielding. First of all, let me recognize the effort that he has put 
in now for, I guess, over 3 days on the floor to push an issue that the 
American people have spoken so clearly to, and I congratulate him for 
this effort and the work that goes on here to fashion this most 
important piece of legislation toward final resolution.
  But I now speak specifically to the Lieberman-Kerry-Levin amendment 
of which, if you want to gut a good bill, here is where you start. This 
is the first substantive effort we have seen on the part of the other 
side to substantially change the course and the direction of this bill. 
Basically, the private sector has an opportunity to compete with any 
segment of the public sector, and vice versa. And if you start making 
all of these broad exceptions, you create gaping holes in this 
legislation that you can drive billions of dollars through.
  This amendment says that wherever there may be competition between 
the private and public sectors, S. 1 would not apply.
  If this amendment actually did anything to stop the Federal 
Government from imposing mandates on the private sector, I'd be the 
first in line to cosponsor it.
  This amendment would not stop unfunded mandates on the private 
sector. In fact, it would help Government go on imposing them.
  As I understand it, since the private sector might conceivably 
compete for virtually any public sector activity, this amendment would 
make S. 1 meaningless. It would gut the bill.
  As my colleague from Idaho has pointed out from his experience as a 
city mayor, the private sector competes with the public sector in a 
host of activities such as police services and fire services, planning 
services, prisons, education, recreation, civil engineering--to name 
only a few.
  Under this amendment, unfunded mandates relating to activities or 
services like these would not have to comply with S. 1.
  We are told that S. 1 would put the private sector at a disadvantage 
in competing with the public sector, because the private sector would 
have to pay for mandates it operates under, while the Federal 
Government would absorb the cost of any mandates on the public sector.
  This amendment is based on wrong assumptions about S. 1.
  S. 1 is a process reform that makes it harder to enact unfunded 
mandates on either the public or private sector and opens up the 
process to public scrutiny.
  This amendment does not try to stop the Government from imposing 
costly mandates on the private sector. Instead, the amendment just 
exempts a huge class of mandates.
  As a result, this amendment would remove the procedural speed bump 
that S. 1 puts in the path of those unfunded mandates.
  In other words, this amendment will hurt the private sector by 
keeping it easy for the Government to impose unfunded mandates on 
either the public or private sector.
  Exempting a long list of mandates from this bill just means making it 
easier for Congress and the Federal Government to continue putting the 
cost of mandates on somebody else's bill--and making it harder for 
Congress to find out ahead of time how much the mandate will cost the 
American people.
  The process today is broken. It is biased toward irresponsibility. It 
frustrates information gathering. It prevents the American people from 
having a clear view of what decisions are being made by Congress and 
the Federal regulators.
  S. 1 would end all that.
  S. 1 gives us a tool to determine the actual cost of Government 
mandates before we are asked to vote on them.
  For the first time in history, it will be standard operating 
procedure for CBO to analyze the cost of mandates on the private 
sector, and for Federal agencies to review the costs of mandates on the 
private sector.
  Without a CBO estimate, a bill imposing unfunded mandates on the 
private sector would be subject to a point of order.
  Most important, S. 1 changes the bias of the current system to make 
Congress and the Federal regulators accountable for the real outcome of 
their decisions, by giving the American people a clear view of the 
decisions being made.
  American business understands all this. We have heard the letters 
from business leaders who are in the best position to evaluate the 
bill's impact on competition. Those letters support S. 1.
  Exempting actions from S. 1 will not help any business in America. It 
will only keep a broken process in place.
  If you think unfunded mandates on American business are unfair, you 
should support S. 1 and oppose this amendment.
  The PRESIDING OFFICER. The Senator's time has expired. The Senator 
from Idaho.
  Mr. KEMPTHORNE. Mr. President, I just want to thank my colleague from 
Idaho. I am proud to be a partner with him.
  Mr. LOTT. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Mississippi.
  Mr. LOTT. How much time is remaining on both sides?
  The PRESIDING OFFICER. Five minutes for the Senator from Idaho and 27 
minutes for the Senator from Connecticut.
  Mr. LOTT. So at approximately sometime shortly after 5:30 or 5:35, we 
can anticipate a vote on this issue?
  The PRESIDING OFFICER. 5:40 to be specific.
  Mr. LOTT. Thank you, Mr. President.
  Mr. LIEBERMAN addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Connecticut.
  Mr. LIEBERMAN. Mr. President, I will speak on my own time. I say also 
to my friend from Mississippi that we may not consume all the time 
available on our side. There is one other Senator who has asked to 
speak in support of the amendment, and if he arrives on the floor, 
obviously, I will yield to him. Otherwise, I will speak for a brief 
time. I presume that my friend and colleague from Idaho will want to 
speak for a little bit. And if it is OK with him, I would like to wrap 
it up.

  Mr. President, I do want to make clear here a few points in response 
to some of the opposition to the amendment. This is not some special 
exemption that we are creating. We are in fact trying to create an 
equality of enforcement of S. 1 to make it clear that it applies 
equally to the public and the private sectors, and that it does not, by 
setting a higher hurdle for so-called mandates on State and local 
governments, exempt them and put them at a competitive advantage in 
regard to, or in respect to private entities that are doing the same 
thing that they are doing.
  I feel very strongly, Mr. President, that this amendment does not go 
to the heart of this bill. This bill, which I fully support, one, wants 
Congress to be forced to face an estimate of the costs of what we are 
about to do. It sounds as if we should have done it a long time ago, 
and we should have. What is rational or fair about passing a bill which 
requires other levels of Government or the private sector to take 
action when we do not know how much it will cost them? As much as we 
support some of the goals that are the subjects of legislation we 
adopt, we might decide that it is not worth it, that on a cost-benefit 
basis, it is not worth it.
  My amendment leaves that intact. We will be forced to face the cost 
of potential legislation. CBO must give an estimate of the cost impact 
on both public and private entities of anything we are about to do.
  The amendment, if passed, leaves the second point of order in place 
created by S. 1 so far as it relates to mandates specifically on State 
and local government for governmental functions where there is no 
private-sector competition. In my opinion, that affects the most 
significant and certainly the most costly mandates that we put on State 
and local governments. They still would be covered by S. 1, if amended 
by the amendment that we have put in. And it is just there in the 
dollars and cents. It was there in the testimony [[Page S1175]] that I 
read from Governor Voinovich of Ohio and, indeed, from Senator Bond. 
When you look at the impact, the big-ticket items, the big-ticket 
mandates, the most costly mandates on the State and local governments 
are the ones that are uniquely on them--education and social services 
particularly.
  The current occupant of the chair made the point there are other 
mandates we put on the States uniquely, and the motor-voter 
legislation, which the current occupant of the chair cited, is a good 
example. There is no private sector impact of that. In a sense that is 
the classic Federal mandate. We had a ``good idea,'' and we asked the 
States and localities to do it. We forced them to do it. But we did not 
give them the money to pay for it. And that would still, if my 
amendment passed, be required to pass the second hurdle, be subject to 
the point of order, and be put on the track which would eventually lead 
to no money, no mandate. And that ought to be.
  But when we are dealing with something that affects both the public 
and private sector, I just do not think it is right to lower the bar, 
the hurdle, for the public sector and keep it up here for the private 
sector. That is inevitably going to mean that the private sector will 
be put at a competitive disadvantage where they are playing a zero sum 
game as they are in so many clean air, clean water situations where you 
have a set level of pollution reduction that the public and private 
sector share. If we ask less of the public sector, the private sector 
is going to have to bear more of a burden and pay more of a cost. And 
ironically, and unintended, I know, is one of the consequences that I 
foresee, which is that, if this amendment were passed, it would inhibit 
the move toward privatization which so many of us support here, 
privatization of public functions, because a private entity performing 
a public function will be held to higher responsibilities, have higher 
costs, and therefore governments will be less likely to privatize 
because they will get this bargain.
  So I think this is an amendment that is equitable. The underlying 
bill is very necessary, and the amendment does not diminish the impact 
of the underlying bill. In fact, it supports it and it supports it in a 
way that is more fair because it does not increase the burdens on the 
private sector.
  Now, people who feel there are too many regulations generally, 
Federal regulations and Federal mandates, may think that if this passes 
in this form, because of the inequity that is being created between the 
public and private sector, the next step will be to remove mandates 
from the private sector.
  I would respectfully suggest that is a big step which is not likely 
to follow, and therefore the private sector will be left holding the 
bag, paying the extra cost of this proposal. The reason I think that 
big step would not be taken is that then--and I speak as someone who 
has worked on market incentives for environmental protection and is 
concerned about deregulation--but if you started to talk about pulling 
off some of the regulations, then you are going to put in play a lot of 
laws that the public wants us to keep out there.
  Mr. LOTT. Mr. President, will the distinguished Senator yield?
  Mr. LIEBERMAN. I will be glad to yield to my colleague.
  Mr. LOTT. Just for a little discussion and maybe a question.
  I certainly respect what the distinguished Senator from Connecticut 
is trying to do. He always gives great thought to any amendment he 
pursues or any bill he supports, and he really has an impact when he 
does that.
  I presume that the Senator is--I think I know the Senator well enough 
that he is for the concept of this legislation.
  Mr. LIEBERMAN. The Senator is correct.
  Mr. LOTT. The Senator thinks we ought to take a look at the costs of 
mandates we have been putting on State governments. Having been a State 
attorney general, he knows what is involved here, and I know he would 
like for us to review that and relieve the States and the local 
governments of some of these mandates that cost millions of dollars.
  So I know the Senator does not want to undermine the basic purpose of 
this legislation, and the Senator does not want to in any way render it 
moot, as I believe I heard somebody say earlier here.
  The thing that bothers me about the amendment, more and more, you are 
going to find that there are areas where both private and public are 
already involved. I believe the distinguished chairman of the 
Governmental Affairs Committee has indicated earlier that already you 
have private activities in the police departments, in fire departments, 
in public building inspectors, public road construction, public 
hospitals, and city attorneys compete with the private, fee-for-service 
attorneys.
  So I was just rolling over in my mind as the Senator was speaking 
that there are so many public-sector services now, at both the State 
and the county and the city level, where you would have this private-
sector competition and that so much of the bill might be in fact wiped 
out if we pass this.
  How does the Senator respond to that? Because I am concerned about 
what the impact would be. We do not want to wipe out major portions of 
the bill because we know it is good. But with the potential impact that 
might have on the private sector, we do not want to kill the whole 
thing when you are trying in good faith to address a problem. When you 
analyze it, it looks to me as if almost everything could be covered 
here now.
  Mr. LIEBERMAN. Mr. President, I appreciate the question from my 
friend, and it is a good one. Let me first state that not only is there 
not the intention to wipe out most of bill, I am convinced the impact 
of the amendment is not to do that. And let me assure my friend from 
Mississippi that I wish to support this bill. I was a cosponsor of S. 
993 last year.
  I was the attorney general of Connecticut before I came here. I 
believe in federalism. I know that the States have not been treated 
fairly in a whole host of mandates that we have put on them. But it is 
just the point that the Senator is making that is part of my argument. 
We are in a time now, I do not have to tell my friend, where we are 
quite appropriately reviewing the whole structure and focus and purpose 
of government, and taking a look at whether government is best suited 
to perform certain functions or whether the private sector can pick up 
those functions.
  I am afraid that if we pass this bill unamended, without the 
amendment that I have put in, all the incentives go toward keeping 
governmental functions in the Government and not giving them over to 
the private sector, because the private sector is held to the higher 
standard. The public sector can be held to a lower standard if we do 
not fully pay the cost of any mandate. So, if I understand the 
Senator's question correctly, it is in fact because: First, I do not 
want to put the private sector at a competitive disadvantage and, 
second, I agree the Government has grown too big and we ought to figure 
out ways in which we can have private entities perform some public 
functions.

  But this bill as it sits now will discourage that, as the school bus 
operators--I read a letter, before my friend was on the floor, from the 
school bus operators association, National School Transport Association 
where they urge support of this amendment because of their fear that 
the result of it, unintended, will be for fewer municipalities to 
contract with them to provide school bus service because the 
municipalities will not have to carry out Federal mandates regarding 
safety equipment on the bus so they will have a lower cost whereas the 
private school bus operators will have to carry that out.
  So I repeat, I feel very strongly that this amendment does not gut 
the bill. The bill remains strong, very strong. And frankly it is 
revolutionary in its impact, forcing us to face the cost, setting 
hurdles, and including setting that high hurdle when we mandate that a 
State and local government perform a function uniquely. And that is 
where most of the dollars are that we mandate the State and local 
governments to pay.
  So I urge my colleagues to consider supporting this bill across party 
lines. I think it is fair. It is good for the private sector. And it is 
good for the public, too, insofar as they are concerned about us 
protecting their health and safety. [[Page S1176]] 
  Mr. President, I yield the floor at this time.
  Mr. LOTT. Mr. President, I believe the distinguished sponsor of the 
legislation is perhaps ready to speak. How much time is remaining now?
  The PRESIDING OFFICER. There is 5 minutes remaining to the Senator 
from Idaho, 10 minutes for the Senator from Connecticut.
  Mr. LOTT. Does a quorum count against the time?
  The PRESIDING OFFICER. Equally divided.
  Mr. LOTT. Time would count. So at this point we could yield back time 
on either side and perhaps have the closing statements?
  Are we ready? Could I ask the distinguished Senator from Ohio, are we 
ready to conclude the debate at this point?
  Mr. GLENN. In just a moment. I think the distinguished minority 
leader, I believe, had indicated he might want to have a few words on 
this. We have sent word in to him that we are down to about the last 5 
minutes so we might delay just a couple of minutes here.
  Mr. LOTT. If that is the case, I do not believe the sponsor of the 
legislation would want to use his time.
  Do you want to just put in a quorum and let it count? Or do you want 
to speak now?
  I yield the floor.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I will yield such time to myself as I 
may need.
  Mr. President, a few points. No. 1, Senate bill 993, which I was a 
cosponsor of, principal sponsor last year--it was a very good bill. S. 
1, much of the base of that is 993, but it is a new and improved 
version. I strongly support S. 1.
  When we talk about this issue of competition between the public 
sector and the private sector--I will put my voting record up. For 
example, my ranking from the U.S. Chamber of Commerce is a 92 percent 
voting record in support of business issues; National Federation of 
Independent Business, 94 percent. I am not going to be part of any 
legislation that in any way is going to have an adverse impact on our 
business community. And I have not done that in S. 1.
  One of the members of the business community I spoke with last week 
made this very, very good point--Bob Bannister, National Association of 
Homebuilders. He said, ``There is no such thing as an unfunded mandate. 
Everyone of them are funded but they are funded by tax dollars. We in 
the business community that are paying the taxes--we pay them.'' That 
is why the business community strongly supports S. 1 as written.
  But now we have the amendment. I respect my colleague from 
Connecticut, but this amendment says that in those areas where there 
may be competition, then we are not going to allow this process to 
work. But that is what S. 1 is, it is a process.
  Why would we not want to know the cost of some potential mandate 
before we vote? I think the people of America want us to know how much 
it is going to cost. What is the impact? And included in there is if in 
any way this creates some sort of adverse impact to the private 
sector--which are the ones paying the taxes anyway--we will know it.
  The Senator from Massachusetts made the point, he said, and I am 
paraphrasing: If it creates a disadvantage to the private sector, he 
says, I think the people would say wait a minute.
  Guess what? Now we will know, because of this process. And do you 
know who will say wait a minute on behalf of the people? Congress will. 
Because then we can come to the floor, and now it is not based on all 
of these scenarios that we have heard. It is based upon empirical data. 
Every one of these scenarios, as it has been pointed out, if they 
develop then this is where we resolve it: Majority rules. But it is the 
process that we know this ahead of time.
  The Lieberman amendment will have the effect of eliminating from S. 1 
any cost estimate for any conference reports, amendments or motions 
which contain mandates. The estimates on these only come from 
subsection C(1)(b) which the amendment makes inapplicable. So we are 
going to say, you know what, there just may be a lot of these problems 
out here. So rather than knowing that, rather than knowing how much it 
is going to cost, we would rather not know. So let us just wipe it out. 
That does not set well with me. That does not set well with mayors and 
Governors and county commissioners and schoolteachers throughout the 
United States nor our private sector partners throughout the United 
States.
  Mr. President, I will ask unanimous consent to have printed in the 
Record the following letters. From the U.S. Chamber of Commerce--I will 
only read a line from each of these.

       The U.S. Chamber of Commerce has loudly and wholeheartedly 
     endorsed this legislation.

  That is dated January 18, 1995.
  A letter from W.M.X. Technologies, which is a large, large company 
dealing with the waste management issue.

       I am writing to express our appreciation and support for 
     your efforts in crafting the text of S. 1, the Unfunded 
     Mandate Reform Act of 1995.

  NFIB, National Federation of Independent Business:

       On behalf of the over 600,000 members of the National 
     Federation of Independent Business, I urge you to vote in 
     favor of S. 1.

  The National Retail Federation:

       On behalf of the Nation's retail community and its 20 
     million employees--1 in 5 U.S. workers--we are writing to 
     commend you for your sponsorship of S. 1. . . . S. 1, which 
     would restore accountability and responsibility at the 
     federal level, is the strongest legislative initiative in 
     which to counter this growing problem.

  I do not think the American public realizes for how many years we 
have cast votes in this well on mandates to the citizens of this 
country and we never knew how much they cost. To this day we do not 
know because nowhere do we require it.
  We will now, with S. 1. And at any point that you want to have a 
waiver of the point of order, just come to the floor and a majority 
rules and we waive the point of order. But we are going to start making 
informed decisions. We are not abdicating decisionmaking. We are 
enhancing decisionmaking through S. 1--a process.
  Mr. President, I reserve the remainder of my time and ask unanimous 
consent the letters be printed in the Record.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                   National Retail Federation,

                                                  January 4, 1995.
     Hon. Dirk Kempthorne,
     U.S. Senate, Dirksen Office Building, Washington, DC.
       Dear Senator Kempthorne: On behalf of the nation's retail 
     community and its 20 million employees--1 in 5 U.S. workers--
     we are writing to commend you for your sponsorship of S. 1, 
     The Unfunded Mandates Reform Act of 1995. This legislation is 
     the most effective way to confront the problem of unfunded 
     federal mandates while simultaneously resuscitating the 
     concept of federalism and giving the states back control of 
     their budget obligations.
       The problem is well documented and the solution is clear--
     unfunded federal mandates must end. Over the past decade, an 
     unprecedented increase in unfunded federal mandates in 
     environment, labor and education, to name just a few, has 
     forced state and local governments to undertake actions that 
     drain their resources and are often in conflict with the best 
     interests of their citizens as well as our industry.
       As representatives of the retail industry in each of the 
     fifty state capitals, we have experienced first hand the 
     profound adverse impact of unfunded federal mandates on our 
     industry and our state's economic well-being.
       Unfunded federal mandates are simply another Washington 
     practice of circumventing a fundamental responsibility in 
     governing, the obligation to bring desires into line with 
     revenues. Such mandates are Washington's way to dictate to 
     the states, even though it has exhausted its resources. S. 1, 
     which would restore accountability and responsibility at the 
     federal level, is the strongest legislative initiative in 
     which to counter this growing problem.
       Again, we sincerely appreciate your leadership on this 
     important matter.
           Sincerely,
       Tracy Mullin, President, National Retail Federation; George 
     Allen, Executive Vice President, Arizona Retailers 
     Association; J. Tim Brennan, President, Idaho Retailers 
     Association; Bill Coiner, President, Virginia Retail 
     Merchants Association; Spence Dye, President, Retail 
     Association of Mississippi; Bud Grant, Executive Director, 
     Kansas Retail Council; Jo Ann Groff, President, Colorado 
     Retail Council; John Hinkle, President, Kentucky Retail 
     Federation; John Mahaney, President, Ohio Council of Retail 
     Merchants; Charles McDonald, Executive Director, Alabama 
     Retail Association; Grant Monahan, [[Page S1177]] President, 
     Indian Retail Council; Sam Overfelt, President, Missouri 
     Retailers Association; Ken Quirion, Executive Director, Maine 
     Merchants Association.
       Lynn Birleffi, Executive Director, Wyoming Retail Merchants 
     Assn.; John Burris, President, Delaware Retail Council; Bill 
     Dombrowski, President, California Retailers Association; 
     Janice Gee, Executive Director, Washington Retail 
     Association; Brad Griffin, Executive Vice President, Montana 
     Retail Association; Jim Henter, President, Association of 
     Iowa Merchants; Bill Kundrat, President, Florida Retail 
     Federation; William McBrayer, President, Georgia Retail 
     Association; Larry Meyer, Vice Chairman & CEO, Michigan 
     Retailers Assn.; Mickey Moore, President, Texas Retailers 
     Association; Nick Perez, President, Louisiana Retailers 
     Assn.; Dwayne Richard, President, Nebraska Retail Federation.
       Bill Sakelarios, Executive Vice President, Retail Merchants 
     Assn. of N.H.; Paul Smith, Executive Director, Vermont Retail 
     Association; David Vite, President, Illinois Retail Merchants 
     Assn.; Melanie Willoughby, President, New Jersey Retail 
     Merchants Assn.; Mary Santina, Executive Director, Retail 
     Association of Nevada; Chris Tackett, President, Wisconsin 
     Merchants Federation; Jerry Wheeler, Executive Director, 
     South Dakota Retailers Assn.
                                                                    ____

                                        Chamber of Commerce of the


                                     United States of America,

                                  Washington, DC, January 3, 1995.
     Hon. Dirk Kempthorne,
     Dirksen Senate Office Building, U.S. Senate, Washington, DC.
       Dear Dirk: On behalf of the U.S. Chamber of Commerce 
     Federation of 215,000 businesses, 3,000 state and local 
     chambers of commerce, and 1,200 trade and professional 
     associations, I sincerely commend your hard work and tenacity 
     on the ``Unfunded Mandate Reform Act of 1995,'' S. 1. The 
     Chamber membership identified unfunded mandates on the 
     private sector and state and local governments as their top 
     priority for the 104th Congress. Accordingly, the Chamber 
     supports this legislation and will commit all necessary time 
     and resources to ensuring its passage early in this session.
       I particularly want to thank you for responding to our 
     concerns about the role of the private sector in this debate 
     and the potential impact it could have had on the business 
     community, especially small businesses. Your willingness to 
     include the private sector in Title II of S. 1, ``Regulatory 
     Accountability and Reform,'' and your recognition of the 
     potential unfair competition issue between business and state 
     and local governments, make this a much strong bill that can 
     have a significant impact on the current regulatory burden.
       Again, Dirk, we appreciate your commitment to this issue. I 
     look forward to working with you to secure passage of S. 1 as 
     well as other issues that we can join forces on for the 104th 
     Congress.
           Sincerely,
     Richard L. Lesher.
                                                                    ____



                           Small Business Legislative Council,

                                                 January 10, 1995.
     Hon. Dirk Kempthorne,
     U.S. Senate,
     Washington, DC.
       Dear Senator Kempthorne: We wish to express our support for 
     the Unfunded Mandates Reform Act of 1995, S. 1, and urge you 
     to vote for it. In particular, we strongly support the 
     provision requiring the Congressional Budget Office to 
     conduct an analysis of the direct cost of proposed mandates 
     on the private sector.
       Several years ago, we arrived at the conclusion that many 
     of our ``regulatory'' problems were actually ``legislative'' 
     problems. Congress had effectively assumed the role of 
     regulator. Therefore, we concluded, the analysis of new 
     ``regulatory'' requirements should begin during the 
     legislative process. In effect, we argued that Congress 
     should impose upon itself, the discipline of the Regulatory 
     Flexibility Act.
       For this reason, in addition to our general concerns about 
     unfunded mandates, we support this legislation. It is 
     important that Congress understand fully, the economic 
     consequences of its actions on small business, in a timely 
     manner. Small business is at the regulatory braking point. 
     All too frequently, small business owners tell us, ``I am not 
     sure I can advise my son or daughter to join me in the 
     business. It is not worth it, the hassles outweigh the joys. 
     They just might be better off working for someone else.'' 
     That is not a healthy trend for the country.
       The Small Business Legislative Council (SBLC) is a 
     permanent, independent coalition of nearly one hundred trade 
     and professional associations that share a common commitment 
     to the future of small business. Our members represent the 
     interests of small businesses in such diverse economic 
     sections as manufacturing, retailing, distribution, 
     professional and technical services, construction, tourism, 
     transportation, and agriculture. Our policies are developed 
     through a consensus among our membership. Individual 
     associations may express their own views. For your 
     information, a list of our members is enclosed.
           Sincerely,
                                                  John S. Satagaj,
                                                        President.

           Members of the Small Business Legislative Council

       Air Conditioning Contractors of America.
       Alliance for Affordable Health Care.
       Alliance of Independent Store Owners and Professionals.
       American Animal Hospital Association.
       American Association of Nurserymen.
       American Bus Association.
       American Consulting Engineers Council.
       American Council of Independent Laboratories.
       American Floorcovering Association.
       American Gear Manufacturers Association.
       American Machine Tool Distributors Association.
       American Road & Transportation Builders Association.
       American Society of Travel Agents, Inc.
       American Sod Producers Association.
       American Subcontractors Association.
       American Textile Machinery Association.
       American Trucking Association, Inc.
       American Warehouse Association.
       American Wholesale marketers Association.
       AMT-The Association for Manufacturing Technology.
       Apparel Retailers of America.
       Architectural Precast Association.
       Associated Builders & Contractors.
       Associated Equipment Distributors.
       Associated Landscape Contractors of America.
       Association of Small Business Development Centers.
       Automotive Service Association.
       Automotive Recyclers Association.
       Bowling Proprietors Association of America.
       Building Service Contractors Association International.
       Business Advertising Council.
       Christian Booksellers Association.
       Council of Fleet Specialists.
       Council of Growing Companies.
       Direct Selling Association.
       Electronics Representatives Association.
       Florists' Transworld Delivery Association.
       Health Industry Representatives Association.
       Helicopter Association International.
       Independent Bakers Association.
       Independent Bankers Association of America.
       Independent Medical Distributors Association.
       International Association of Refrigerated Warehouses.
       International Communications Industries Association.
       International Formalwear Association.
       International Television Association.
       Machinery Dealers National Association.
       Manufacturers Agents National Association.
       Manufacturers Representatives of America, Inc.
       Mechanical Contractors Association of America, Inc.
       National Association for the Self-Employed.
       National Association of Catalog Showroom Merchandisers.
       National Association of Home Builders.
       National Association of Investment Companies.
       National Association of Plumbing-Heating-Cooling 
     Contractors.
       National Association of Private Enterprise.
       National Association of Realtors.
       National Association of Retail Druggists.
       National Association of RV Parks and Campgrounds.
       National Association of Small Business Investment 
     Companies.
       National Association of the Remodeling Industry.
       National Association of Truck Stop Operators.
       National Association of Women Business Owners.
       National Chimney Sweep Guild.
       National Association of Catalog Showroom Merchandisers.
       National Coffee Service Association.
       National Electrical Contractors Association.
       National Electrical Manufacturers Representatives 
     Association.
       National Food Brokers Association.
       National Independent Flag Dealers Association.
       National Knitwear Sportswear Association.
       National Lumber & Building Material Dealers Association.
       National Moving and Storage Association.
       National Ornamental & Miscellaneous Metals Association.
       National Paperbox Association.
       National Shoe Retailers Association.
       National Society of Public Accountants.
       National Tire Dealers & Retreaders Association.
       National Tooling and Machining Association.
       National Tour Association.
       National Venture Capital Association.
       National Wood Flooring Association.
       Opticians Association of America.
       Organization for the Protection and Advancement of Small 
     Telephone Companies.
       Passenger Vessel Association.
       Petroleum Marketers Association of America.
       Power Transmission Representatives Association.
       Printing Industries of America, Inc.
       Professional Lawn Care Association of America. 
     [[Page S1178]] 
       Promotional Products Association International
       Retail Bakers of America.
       Small Business Council of America, Inc.
       Small Business Exporters Association.
       SMC/Pennsylvania Small Business.
       Society of American Florists.
                                                                    ____

                                                 January 10, 1995.
       Dear Senator: On behalf of the broad-based coalition listed 
     below, representing millions of hardworking, tax paying 
     voters, we urge your strong support of S. 1, the Unfunded 
     Mandates Reform Act of 1995. Congress must begin to control 
     the ``unfunded mandates'' crisis facing America today.
       Our members are quite concerned over the burgeoning number 
     of federal mandates imposed on state and local governments 
     which lack adequate financial assistance for development, 
     implementation and compliance. Without adequate funding, 
     states and localities are forced to pass on these costs and 
     the true financial burden is shouldered by private business 
     and citizens through fees and taxes.
       S. 1, a bi-partisan effort sponsored by Senator Dirk 
     Kempthorne (R-ID) and John Glenn (D-OH) and supported by a 
     majority of the Senate, is the critical first step to 
     controlling the unfunded mandates crisis. This bill requires 
     the non-partisan Congressional Budget Office (CBO) to analyze 
     new legislation and determine the cost of any proposed 
     mandate imposed on state and local governments. The bill also 
     requires CBO cost estimates for impacts on the private 
     sector. If these estimates are not completed, any proposed 
     legislation may be ruled out of order.
       This bill does not halt government actions. It is an 
     important educational tool for Members of Congress who need 
     to know the financial impact of legislation being considered 
     before voting on it.
       Now is the time to act. Support S. 1 without weakening 
     amendments and begin to alleviate the burden of unfunded 
     federal mandates.
           Sincerely,
       Associated Builders and Contractors, Inc. Building Owners 
     and Managers Association.
       Denver Regional Transit District.
       International Council of Shopping Centers.
       National Association of Home Builders.
       National Association of Real Estate Investment Trusts, Inc.
       National Association of Realtors.
       National Restaurant Association.
       National School Transportation Association.
       Small Business Legislative Council.
       U.S. Chamber of Commerce.
       Washington Metro Area Transit Authority.
                                                                    ____

                                        Chamber of Commerce of the


                                     United States of America,

                                  Washington, DC January 10, 1995.
     Members of the U.S. Senate:
       The Senate is scheduled tomorrow to consider S. 1, the 
     ``Unfunded Mandate Reform Act of 1995.'' On behalf of the 
     U.S. Chamber of Commerce Federation of 215,000 businesses, 
     3,000 state and local chambers of commerce, 1,200 trade and 
     professional associations, and 72 American chambers of 
     commerce abroad, I strongly urge you to vote ``YES.'' The 
     Chamber will include this vote in its annual ``How They 
     Voted'' vote ratings.
       The U.S. Chamber conducts a survey of its membership each 
     congressional cycle to determine the most important 
     legislative issues for the coming Congress. This year, the 
     Chamber membership identified unfunded mandates on the 
     private sector and state and local governments as its number 
     one issue for the 104th Congress. We believe that the 
     coverage S. 1 provides for the private sector represents a 
     significant step forward in our ongoing battle to tame 
     federal regulatory burdens. Accordingly, we have endorsed S. 
     1 and are devoting all necessary time and resources to secure 
     its passage.
       All the private sector seeks in this debate is information 
     and accountability. We do not seek federal funding for any 
     private sector mandate. Our goal is to ensure that before any 
     significant legislation can be passed or any major regulation 
     imposed on the private sector, a cost impact analysis be done 
     and made public. We also seek, at a minimum, a requirement 
     that before any public sector mandate is funded, an analysis 
     of the potential for unfair competition between the public 
     and private sectors in the provision of the same goods or 
     services is provided and aired. Our intent is to secure full 
     and honest debate and to allow the public to communicate to 
     Washington where their limited resources should be spent. 
     Every day, American business and households, as well as state 
     and local governments, have to consider the impact their 
     actions have on their own bottom lines. Congress and federal 
     regulators also should be required to consider the financial 
     impact of the mandates they impose.
       This issue is about good government, jobs, and 
     competitiveness. The business community recognizes that state 
     and local governments struggle with such basic necessities as 
     funding for additional police officers, ambulances and 
     schools because an increasing portion of their budgets go 
     toward complying with unfunded federal mandates So too do 
     businesses struggle--particularly small buuinesses--with 
     generating jobs, making their businesses grow, and sometimes 
     just staying in business.
                                                                    ____

                                           National Association of


                                      Wholesaler-Distributors,

                                 Washington, DC, January 11, 1995.
     Hon. [Name],
     U.S. Senate,
     Washington, DC.
       Dear Senator [Last Name]: Shortly you will be called upon 
     to consider S. 1, ``The Unfunded Mandate Reform Act of 
     1995.'' As you know, in addition to addressing unfunded 
     mandates imposed on state and local governments, the 
     legislation includes a requirement that the Congressional 
     Budget Office conduct a cost-impact analysis whenever 
     Congress wants to impose an unfunded mandate of more than 
     $200 million on the private sector. On behalf of the 45,000 
     companies represented by the National Association of 
     Wholesaler-Distributors (NAW), we strongly urge you to fight 
     for passage of S. 1 as drafted, and oppose any efforts to 
     remove or weaken the private-sector coverage language.
       Clearly, S. 1 will force Congress to confront the real 
     world impact of unfunded mandates on the millions of 
     businesses, and their employees, that drive our economy, and 
     who must implement and pay for the laws, rules and 
     regulations that are imposed on them by Washington. Indeed, 
     your support for S. 1 with its strong private sector coverage 
     provisions, will tell every employer and employee in [State] 
     and across the country that before considering an unfunded 
     mandate you will carefully review the costs to American 
     business associated with that mandate. This, in our 
     estimation, represents sound government policy, sound 
     business policy and sound economic policy.
       With thanks for your consideration and best regards.
           Cordially
     Dirk Van Dogen,
       President.
     Alan M. Kranowitz,
       Senior Vice President.
                                                                    ____



                                   Browning-Ferris Industries,

                                 Washington, DC, January 11, 1995.
     Hon. Dirk Kempthorne,
     Dirksen Building,
     Washington, DC.
       Dear Senator Kempthorne: We appreciate the attention you 
     have given to views we previously expressed in connection 
     with unfunded mandates legislation. We expressed our previous 
     views at a time when one of our concerns was that unfunded 
     mandates legislation could have retroactive effect. It is 
     evident that S. 1 has a prospective effect only, which we 
     understand was your intent all along.
       After reviewing the legislation that will be considered on 
     the floor and after discussions with your office, we 
     recognize that among your objectives for S. 1 is creation of 
     a favorable climate for the private sector. In fact, S. 1 
     seeks creatively to address the concern expressed in some 
     quarters that unfunded mandates legislation could 
     disadvantage the private sector where public-private 
     competition takes place. Moreover, after many years of 
     experience in working with you--most of them prior to your 
     tenure in the Senate--BFI is convinced that your dedication 
     to free enterprise is unsurpassed.
       With your commitment to assure equality for the private 
     sector--no more, but no less--where competition exists 
     between the public and private sectors, we are pleased to 
     strongly support S. 1.
           Sincerely,
     Richard F. Goodstein.
                                                                    ____

                                            National Federation of


                                         Independent Business,

                                  Washington, DC, January 3, 1994.
     Hon. Dirk Kempthorne,
     U.S. Senate,
     Washington, DC.
       Dear Dirk: On behalf of the over 600,000 members of the 
     National Federation of Independent Business, I urge you to 
     vote in favor of S. 1, the unfunded mandates legislation, 
     when it is considered by the Senate in January.
       Unfunded federal mandates on the states and local 
     governments end up requiring these entities to raise taxes, 
     establish user fees, or cut back services to balance their 
     budgets. Small business owners are affected by all of these 
     actions.
       Between 1981 and 1990, Congress enacted 27 major statutes 
     that imposed new regulations on states and localities or 
     significantly expanded existing programs. This compares to 22 
     such statutes enacted in the 1970s, 12 in the 1960s, 0 in the 
     1950s and 1940s, and only two in the 1930s. The Congressional 
     Budget Office estimates that the cumulative cost of new 
     regulations imposed on state and local governments between 
     1983 and 1990 was between $8.9 billion and $12.7 billion. 
     These include environmental requirements, voters registration 
     requirements, Medicaid, and others.
       It was not the states and cities who paid roughly $10 
     billion in unfunded mandates during the 1980s; it was 
     taxpayers--small business owners as well as everyone else. In 
     June 1994, a poll of all NFIB members resulted in a 
     resounding 90% vote against unfunded mandates.
       I urge you to strongly support S. 1.
           Sincerely,

                                           John J. Motley III,

                                                   Vice President,
     Federal Governmental Relations.
                                                                    ____



                                        WMX Technologies, Inc.

                                 Washington, DC, January 12, 1995.
     Hon. Dirk A. Kempthorne,
     U.S. Senate, Washington, DC.
       Dear Senator Kempthorne: I am writing to express our 
     appreciation and support for [[Page S1179]] your efforts in 
     crafting the text of S.1, The Unfunded Mandate Reform Act of 
     1995.
       As you know, WMX Technologies, Inc. is the world's largest 
     environmental services company. In the United States, the WMX 
     family of companies provides municipal solid waste management 
     services in 48 states. These services include 132 solid waste 
     landfills and 15,000 waste collection vehicles serving 
     approximately 800,000 commercial and industrial customers as 
     well as 12 million residential customers and contracts with 
     nearly 1,800 municipalities. In addition, our 14 trash-to-
     energy plants produce energy from waste for the 400 
     communities they serve. Finally, our recycling programs 
     provide curbside recycling to 5.2 million households in more 
     than 600 communities and to 75,000 commercial customers 
     throughout the United States.
       We provide these services in a heavily regulated and highly 
     competitive environment. In many cases, State, local and 
     tribal governments are our valued customers, while in others 
     they enter the market and provide services as out 
     competitors. While we do not object to their entry into the 
     market, we have consistently sought to ensure that there is a 
     level playing field upon which we can all compete fairly in 
     the marketplace. For this reason, we have been keenly 
     interested in efforts to ensure that the private sector is 
     not competitively disadvantaged by unfunded mandate 
     legislation that would preferentially relieve public sector 
     participants from the costs of complying with Federal 
     mandates.
       WMX is deeply grateful to you for your sensitivity to this 
     potential difficultly and your willingness to work with us to 
     resolve it. We are confident that the legislation and 
     amendments you will support on the floor of the Senate will 
     provide the necessary safeguards to avoid unintended adverse 
     impacts upon the private sector.
       We look forward to working with you and your staff on this 
     and other matters of mutual concern.
           Sincerely,

                                               Frank B. Moore,

                                                    Vice President
     for Government Affairs.
                                                                    ____

                                        Chamber of Commerce of the


                                     United States of America,

                                 Washington, DC, January 18, 1995.
     Letters to the Editor,
     New York Times, West 43d Street, New York, NY.
       To The Editor: Your editorial in today's paper, ``What's 
     the Rush on Mandates?'' categorically misrepresents the 
     position of the U.S. Chamber of Commerce on the unfunded 
     mandates legislation pending before Congress.
       Over a year ago, we began working with Senator Kempthorne 
     and Representative Clinger, the respective leaders on this 
     issue in the U.S. Senate and House of Representatives, to 
     ensure comprehensive coverage for the private sector. We have 
     nothing but praise for their leadership on this issue and for 
     their openness to the concerns of the private sector. Indeed, 
     when we brought the issue of the potential for unfair 
     competition to their attention (caused when only the public 
     sector receives funding for mandate compliance in an area 
     where they compete with businesses), they responded 
     immediately by including language in both the Senate and 
     House bills to specifically require Congress to address this 
     issue.
       The U.S. Chamber of Commerce has loudly and wholeheartedly 
     endorsed this legislation and has committed all necessary 
     time and resources to ensuring its passage and successful 
     implementation. Contrary to your reporting, every 
     communication we have sent to both Congress and our 
     membership federation of 220,000 on this issue since the 
     advent of the 104th Congress emphatically states our support 
     for quick passage of this legislation.
           Sincerely,
                                                  R. Bruce Josten.

  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Connecticut.
  Mr. LIEBERMAN. Mr. President, I do want to respond to my friend from 
Idaho and say it is certainly the intention of the sponsors of the 
amendment--I am confident the desired impact of the sponsors of the 
amendment--to leave most of the contents of requirements of S. 1 
intact, including the requirement that there be a Congressional Budget 
Office analysis of the cost of every Federal law which might result in 
a mandate on public and private entities, and that a measure would be 
subject to a point of order--a point of order would lie if there was 
not such an estimate.
  So we want to keep those facts in there, and we want to keep the 
second point of order in there with regard to the mandate that would 
impact State and local governments in the capacity of State and local 
governments, unique as it is, when they are not competing with anyone 
from the private sector. All we want to do here is to say that it is 
unfair to lower the bar on State and local governments when they are 
performing a function pursuant to a mandate that the private sector is 
also performing.
  Yes, the Senator from Idaho is correct, this is just a point of 
order. But a point of order is more than just a point of order. It sets 
up here a two-track system, and we are saying to State and local 
governments, ``You have the opportunity to put yourself on a course 
that says no money, no mandate, no responsibility,'' while the private 
sector has to pay the cost of fulfilling that mandate regardless.
  Mr. President, I ask unanimous consent that the Senator from 
Illinois, Ms. Carol Moseley-Braun, be added as a cosponsor of the 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. Mr. President, I yield such time as he may need to the 
distinguished Democratic leader.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. DASCHLE. Mr. President, I thank the distinguished Senator from 
Connecticut and commend him for the amendment.
  I have watched the debate and am very moved by his arguments. I hope 
our colleagues will support the amendment. It is a crucial amendment, 
in my view, to improving the quality of this legislation.
  As the Senator was just indicating, as currently written, this bill 
could create unfair competition between the public and private sectors 
by creating a presumption that public sector costs to comply with 
mandates should in nearly all cases be subsidized by the Federal 
Government.

  In some cases, Federal mandates will affect both the public and 
private sectors in similar and, in many cases, nearly identical 
manners. The costs of compliance with minimum wage laws or 
environmental standards are incurred by both the public and private 
sectors.
  Subsidization of the public sector in these cases could create a 
competitive advantage for activities performed by the public sector as 
it competes with the private sector in the same markets.
  In the past few weeks, there have been a number of efforts made by 
both majority and minority staff to develop a compromise on this issue. 
I appreciate the work by Senator Kempthorne to deal with this problem. 
He and others on the Republican side of the aisle recognize the 
potential problem here and have worked in good faith to address it.
  I felt that we were close to a solution with an agreement that 
language would be included in the committee report that would have 
clearly stated the policy of the Congress that where mandates would 
affect the public and private sectors equally, and where Federal 
subsidization of the public sector would competitively disadvantage 
private businesses, a Federal subsidy should not be provided.
  At least this would have established a basis for a Senator to go to 
the floor and argue for a waiver of the point of order in such cases.
  Unfortunately, when the final committee reports were filed, the 
language that we had proposed to address this situation was 
substantially weakened. No strong statement of such policy was included 
to clarify that Congress should not be expected to subsidize the public 
sector to the detriment of the private sector.
  Such a statement of policy is clearly needed in this bill. The 
pending amendment will provide that statement by establishing a well-
considered and reasonable exclusion.
  The exclusion is not intended to create a massive loophole, as some 
Members have suggested. It merely ensures that the competitive balance 
between the public and private sectors be maintained.
  I urge my colleagues on both sides of the aisle to support this wise 
and fair amendment.
  Mr. President, I think the Senator from Connecticut and others who 
have put a great deal of effort into structuring this amendment have 
thought through many of the very difficult obstacles that we face as we 
address this bill.
  We want to support this bill. We want to find ways in which to 
address what we consider some of the shortcomings. Certainly as we 
consider some of the most significant problems with the implementation 
of this legislation, this is one of the most serious issues of all. 
[[Page S1180]] 
  So, again, I hope our colleagues will see fit on both sides of the 
aisle to find a way to support this and to recognize its importance. It 
is important. We ought to pass it. I hope we can pass it this 
afternoon.
  I thank the Senator for yielding. I yield the floor.
  Mr. LIEBERMAN. Mr. President, I inquire of the Chair how much time 
remains?
  The PRESIDING OFFICER. The Senator from Connecticut has 4 minutes, 
and the Senator from Idaho has 1 minute.
  Mr. KEMPTHORNE. Mr. President, I appreciate this discussion. This is 
what we ought to be doing.
  Just for clarification of the Lieberman amendment, where competition 
exists, paragraph B does not apply. So in the bill, on page 21, line 
24, all of page 22, all of page 23, page 24 down to line 21, it is 
exempt.
  So, again, I think that we have stated the case. Why would we not 
want to go through the process of knowing what the cost is, the impact, 
and if there is some adverse impact with the private sector? I think 
the American public wants us to know that information so that we can 
discuss that and then the majority can rule. At any point you can seek 
a waiver and say, ``No; in this case, we don't need to do that.'' But 
rather than inventing all of these scenarios, let us let the will of 
the Senate work by giving them a process that will enhance that.
  Mr. President, I ask unanimous consent that immediately following the 
next rollcall vote Senator Biden of Delaware and Senator Kempthorne 
from Idaho be allowed to engage in a colloquy not to exceed 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LIEBERMAN. Mr. President, I want to thank my friend and colleague 
from Idaho for what has been a very good, substantive debate and to 
make two points.
  One, he is right that this amendment would have that effect regarding 
section (1)(B). So we remove from any mandate that equally affected the 
private and public sectors the requirement of section (1)(B), but it 
leaves (1)(A) intact. (1)(A) is the requirement to report the cost of 
any bill before the Senate can act on it. It says very simply it shall 
not be in order in the Senate to consider any bill or joint resolution 
that is reported by the committee unless the committee has published a 
statement of the director of CBO on the direct cost of Federal mandates 
in accordance with this proposal. So that remains intact. The evidence 
will be there.
  Finally, I want to say this to my friend from Idaho. I think that he 
and Senator Glenn have done extraordinary work here. This measure, S. 
1, really would force us finally to do what we should have done a long 
time ago. I sincerely believe that the passage of this amendment that I 
have offered leaves almost all of the intent of the bill intact, and 
certainly that part that imposes the most serious cost on State and 
local governments.
  I think, with the amendment passed, the bill is a better bill. And 
may I say with thanks and appreciation to the Senator from Idaho, if we 
pass it with the amendment it is a truly historic accomplishment and 
will begin to dramatically affect the way in which we behave here and 
force us to behave in a much fairer way to our friends in the State and 
local and private sectors who have to live with the laws that we adopt.
  Mr. President, I thank the Chair. I yield the remainder of my time.
  Mr. KEMPTHORNE. Mr. President, I move to table the amendment, 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. The question is on agreeing to the motion of 
the Senator from Idaho to lay on the table the amendment of the Senator 
from Connecticut. On this question, the yeas and nays have been 
ordered, and the clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from South Carolina [Mr. 
Thurmond] is necessarily absent.
  Mr. FORD. I announce that the Senator from Louisiana [Mr. Johnston] 
and the Senator from Vermont [Mr. Leahy] are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Vermont [Mr. Leahy] would vote ``no.''
  The PRESIDING OFFICER (Mr. Bennett). Are there any other Senators in 
the Chamber who desire to vote?
  The result was announced--yeas 53, nays 44, as follows:

                      [Rollcall Vote No. 29 Leg.]

                                YEAS--53

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

                                NAYS--44

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

                             NOT VOTING--3

     Johnston
     Leahy
     Thurmond
  So, the motion to lay on the table was agreed to.
  Mr. KEMPTHORNE. Mr. President, I move to reconsider the vote by which 
the amendment was agreed to, and I move to lay that motion on the 
table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Delaware [Mr. Biden] and the Senator from Idaho [Mr. Kempthorne] are to 
be recognized for up to 10 minutes.


           Delegation of Constitutional Authority by Congress

  Mr. BIDEN. Mr. President, I thank the Chair.
  Mr. President, yesterday, or maybe even the day before yesterday, I 
responded to an assertion that I thought was overbroad--not made by the 
Senator from Idaho but by another Senator--as to what was within the 
constitutional authority of the Congress to delegate or not delegate in 
terms of legislative power. Mr. President, I got into this discussion 
about the constitutional issue and separation of powers issue, of how 
much we could and could not delegate and whether or not particular 
sections of this legislation, in fact, exceeded the constitutional 
authority we had to delegate power.
  Before I begin this colloquy, I want to thank the Senator from Idaho 
and his staff for spending the time with me and going through it. Mr. 
President, this bill adds a new section to the Budget Act, section 
408(C). That section, as I understand it, provides that a simple 
majority point of order shall lie against any authorization bill that 
imposes a mandate unless the authorization bill provides for the 
possibility that the Appropriations Committee may not appropriate the 
estimated cost set forth in the authorization bill to pay for the 
mandate.
  Section 408(C) provides that the authorization bill must deal with 
that eventuality by designating a responsible Federal agency and by 
establishing criteria and procedures for that agency to scale back the 
mandate to match the funds that the Appropriations Committee has 
provided, or to declare the mandate to be in effect.
  Now, let me ask my friend from Idaho, what would happen under this 
provision, and the provision I am referring to is section 408(C), if an 
authorization bill imposed a mandate, named a responsible Federal 
agency to implement the mandate, but did not provide any criteria at 
all for the agency to use in scaling back the mandate or declaring it 
ineffective? Would a point of order in section 408(C) lie in that case?
  Mr. KEMPTHORNE. Mr. President, I say to my friend from Delaware, yes, 
that the point of order would lie.
  Mr. BIDEN. Now, further, I ask my friend from Idaho, what if the 
authorization bill did claim to set out criteria [[Page S1181]] and 
procedures for the responsible Federal agency but those criteria said 
in effect, ``Federal agency, do what you think is right if the 
Appropriations Committee does not fund the full amount set forth in the 
authorization bill.'' Would a point of order lie in that circumstance?
  Mr. KEMPTHORNE. Mr. President, yes, it would.
  Mr. BIDEN. Mr. President, I thank the Senator from Idaho for his 
answers. I do appreciate them.
  Mr. KEMPTHORNE. Mr. President, I would like to pose a question to my 
friend from Delaware. That is, can my colleague and ranking member of 
the Judiciary Committee tell me if his constitutional concerns 
regarding the delegation of authority to executive branch agencies in 
this section have been satisfied?
  Mr. BIDEN. Mr. President, the answer is yes.
  As this colloquy has helped show, at least from my perspective, 
section 408(C) provides that authorization bills that impose a mandate 
and delegate authority to a Federal agency shall include criteria and 
procedures to guide the Federal agency's actions. To the extent that an 
authorization bill contains such criteria and procedures, it increases 
the likelihood that the delegation of authority is constitutional. To 
the extent that such a bill lacks appropriate criteria and procedures, 
it increases the likelihood that the delegation is unconstitutional.
  The Senate could, of course, vote to overrule any point of order 
raised on this basis. But that does not necessarily mean that the 
delegation is constitutional because the Senate overruled a point of 
order. The ultimate question of constitutionality is for the courts to 
decide. Of course, ultimately, all these questions of the 
constitutionality of a delegation of authority through an executive 
agency are through the courts.
  I am satisfied that the attempt has been made in the legislation to 
meet the constitutional requirements. I thank my colleague, the Senator 
from Idaho, for making these points clear to me. As far as I am 
concerned, on this point, I have no further concern.
  Mr. KEMPTHORNE. Mr. President, I say to my friend from Delaware how 
much I appreciate his looking into this issue and sitting down so that 
we could go through this point by point.
  Because of the universal respect for your legal ability, that was 
important to me. So I appreciate that the Senator made that effort, and 
I appreciate that the Senator has entered into this colloquy so we can, 
I hope, lay this issue to rest. It allows Members, again, to move 
forward on this bill, which is so important to all Members.
  I do thank and show my respect to the Senator from Delaware.
  Mr. BIDEN. Mr. President, I thank my colleague from Idaho for his 
overly generous references to my legal abilities.
  In the event that the next election does not turn out as I wish, I 
hope everyone listened to it. And I wish it were true, although it is 
not warranted. I appreciate the sentiment.
  Mr. BYRD. Mr. President, will the distinguished Senator from Idaho 
yield?
  May I say that I, too, have great respect for the opinion and 
viewpoints of our friend from Delaware, the ranking member of the 
Judiciary Committee. He teaches courses in law, and has served as the 
chairman of that Judiciary Committee for many years.
  And what he says carry great weight with me. But I must say that this 
Senator's concerns are not allayed. I will expound upon those concerns 
in due time, and I also expect to have an amendment prepared, and 
perhaps a couple of amendments, which, if agreed to, will allay my 
concerns.
  Mr. KEMPTHORNE. I thank the Senator from West Virginia.
  Mr. LEVIN. I wonder if the Senator will yield briefly on this point 
and my friend from Delaware will also perhaps engage me in a colloquy, 
because I also have some continuing concerns on this issue, although I 
do think there has been some significant clarification.
  The PRESIDING OFFICER. Does the Senator yield to the Senator from 
Michigan?
  Mr. KEMPTHORNE. Yes, Mr. President, I yield but retain my right to 
the floor.
  Mr. LEVIN. My question would be this: The word ``specific'' is not in 
here. Would this be clearer, does the Senator from Delaware believe, if 
the word ``specific'' were added before the words ``criteria and 
procedure"?
  Mr. BIDEN. Mr. President, if I may respond, the answer is yes. I do 
not think it is necessary, but it would not do any damage to the 
section.
  Again, I do not want to take too much time, but if you look at the 
case law here, the real issue is not whether or not we can delegate 
authority, it is how much authority can we delegate and with what 
specificity do we delegate.
  So to the extent that we demand specificity, it increases the 
prospect that whatever authority is delegated is constitutionally 
permissible. That is why I said in my colloquy with my friend from 
Idaho that to the extent that an authorization bill contains such 
criteria and procedure, specific criteria and procedure, to the extent 
it does, it does not make it constitutional, it increases the prospects 
that it will be constitutional. To the extent that it lacks 
specificity, it diminishes the prospect that it would be held to be 
constitutional.
  So neither the Senator from Idaho nor I, I believe, are asserting 
that this does not have the potential to raise a constitutional 
question, but merely to suggest, and I would refer --maybe what I 
should do before this bill is finished is refer to some of the case law 
that I think indicates that it is likely--likely--that the Court would, 
in fact, rule that we have not delegated authority beyond what we are 
constitutionally permitted to do.
  And to relate to the degree of specificity, I have no objection. It 
is not my bill, so it is presumptuous of me to suggest what should and 
should not be added. I have no objection it be added. I think it 
strengthens it marginally without in any way weakening the intent of 
the legislation.
  Mr. LEVIN. I thank my friends from Idaho and Delaware.
  The PRESIDING OFFICER. The Senator's time has expired. The Senator 
from Idaho has the floor.
  Mr. KEMPTHORNE. Mr. President, thank you.
  The PRESIDING OFFICER. The Senator from Oklahoma.


                 Amendment No. 169 to Amendment No. 31

(Purpose: To ensure Federal agencies provide a written estimate of the 
    costs private sector mandates on the private sector during the 
                          regulatory process)

  Mr. NICKLES. 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 Oklahoma [Mr. Nickles], for himself, Mr. 
     Domenici, and Mr. Shelby, proposes an amendment numbered 169.

  Mr. NICKLES. 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:

       At the end of the pending amendment, add the following:
       (6) Notwithstanding any other provision of this Act, an 
     agency statement prepared pursuant to Section 202(a) shall 
     also be prepared for a Federal Private Sector Mandate that 
     may result in the expenditure by State, local, tribal 
     governments, or the private sector, in the aggregate, of 
     $100,000,000 or more (adjusted annually for inflation by the 
     Consumer Price Index) in any 1 year.

  Mr. NICKLES. Mr. President, first, I wish to compliment the leaders 
of this legislation, Senator Kempthorne and Senator Glenn, for their 
patience and for their diligence in pursuing a piece of legislation 
which I think is very much needed and is a very good piece of 
legislation. They have taken giant steps toward eliminating unfunded 
mandates on public entities.
  This legislation says if we pass legislation, we should know how much 
it costs on public entities, and if we are going to mandate something 
on a public entity that if we do not provide the funding that a point 
of order can be raised to stop that mandate. I think that is a good 
step. We should know what it costs and, frankly, if we are not going to 
provide the funding, we should have some capability to stop it, and 
this legislation has done that and I compliment the authors.
  The legislation also says that if we have legislation pending that 
has a [[Page S1182]] negative or has an impact on the economy of over 
$200 million on the private sector, that CBO should score it; CBO 
should tell us what that impact is before it becomes final. I think 
that is good. If we are going to pass legislation, if we are going to 
make laws, we should know what its impact is on the economy before it 
is too late. Maybe the impact is positive, maybe it is negative, but we 
should know what it is. I think that makes us a lot more accountable. 
Hopefully, it will make us better legislators. So I think that is a 
very good provision.
  The legislation also says that regulatory agencies, if they are going 
to implement regulations that would have an impact on the public sector 
of over $100 million, they should at least identify what that cost is. 
So if you have the EPA or OSHA or if you have any other regulatory 
agency make a regulation that has a negative impact or a positive 
impact on the public sector--State, city governments--we should know 
what that cost is if it exceeds $100 million.
  The amendment that Senator Domenici and myself and Senator Shelby 
offered, and in which others have an interest, would go a step further 
and says if the regulatory agencies make a regulation that has a 
negative impact on the private sector of over $100 million, we should 
know what that cost is, too.
  In other words, the legislation does a great job in identifying costs 
and unfunded mandates from the legislators, from Congress, and it does 
a good job from the regulatory side in at least identifying the costs--
not prohibiting it but at least identifying the costs from the 
regulatory side--as it impacts the public sector, but it is silent 
right now as far as the regulatory impact on the private sector.
  That is what our amendment would do. It would say--and it does not 
prohibit the regulatory agency from implementing it, it says they would 
have to identify the cost.
  I think it is a good amendment. It is one with which I hope my 
colleagues can concur.
  I thank my friend and colleague, Senator Domenici, for his leadership 
because actually we have been working on this now for a couple of 
years. This is supported very, very strongly by all the business 
sector, all the private sector. I think it is an amendment that should 
receive unanimous support.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.


                       Unanimous-Consent Request

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that there be 
60 minutes of debate on the Nickles amendment No. 169, equally divided 
between Senators Nickles and Glenn, and at the conclusion or yielding 
back of time, a vote occur on or in relation to the amendment.
  The PRESIDING OFFICER. Is there objection?
  Mr. GLENN. Reserving the right to object--and I will object--we have 
objection on our side to proceeding with that time limit at this time. 
We might be able to agree to it later but not now.
  The PRESIDING OFFICER. Objection is heard.
  Mr. DOMENICI addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Mr. President, I join Senator Nickles in urging the 
Senate adopt this amendment. I do not know how many Senators have 
participated with numbers of small business people in their States, but 
I happen to be a fortunate one.
  I set up a little project in my State. I called it Small Business 
Advocacy Council, and asked five small business leaders to head it from 
all over the State. Then we proceeded to invite groups of small 
businesses to five different parts of New Mexico for 2 to 4 hours to 
talk about the regulatory processes of this country as it applied to 
their well-being, to their businesses, to their ability to have more 
jobs and grow, and whether the regulations were reasonable and made 
common sense.
  I was absolutely dumbfounded to hear with almost one voice, 
regardless from what sector--whether they were retailers, realtors, 
manufacturers, service businesses--with one voice, they were saying 
three things: One: ``Senator, the Federal Government's bureaucratic 
agencies enforcing regulations treats us as if we are their enemies, 
not constituents, not customers, not taxpayers, not small business 
people earning a living and paying people, but as if we are their 
enemies.''
  I say this loud and clear: I do not have an answer to that. This 
amendment will not answer that. But I tell you, it is part of this 
great motion out there against big government. It is as much a part of 
big government ought to get littler as the literal size of government 
is being attacked.

  Second, I regret to tell you that, again, with almost unanimous 
feeling, the three agencies of this Government that are most 
adversarial, less friendly, and thus for some less American happen to 
be OSHA, the Environmental Protection Agency, and the IRS. Now, 
frankly, I did not think the IRS was still in there since we reformed 
the tax laws, but they are, I say to my friend. They are right up there 
as the agency that treats people as if they were aliens, illegal, 
enemies.
  Then the second thing that was harmoniously spoken about, nobody has 
a chance of looking at these regulations to see if they make sense and 
to see how much they cost. They cited innumerable examples of both 
unreasonable regulations and legislation that costs so much money that 
if slightly changed toward common sense could dramatically reduce the 
cost on people, on businesses, on our livelihood and our 
entrepreneurial advantage called opportunity America.
  The third was, why does not somebody look at these before they adopt 
them--loud and clear--these regulations?
  Now, again, we will through the year, under the leadership of Senator 
Nickles and others, address these issues in a more specific manner as 
we talk about overregulations, unpropitious regulations, regulations 
that make no sense. But we can at least in this bill, which purports to 
try to help small business in some way, require that we know how much 
they are going to cost; that is, regulations to be promulgated and 
rendered effective against American business, whether it be in Idaho, 
Utah, Oklahoma, New Mexico, or New York.
  All this amendment does is say to the regulatory processes of this 
country, if a regulation is going to exceed $100 million, you must 
weigh it and tell us about its economic disadvantages.
  Now, frankly, some may say we are not going to be able to do that in 
every case. We may not. But just as it is time to reorient our Federal 
Government versus our cities and States and counties in something we 
choose to call, again, refederalism, a new partnership, a return to the 
10th amendment, which said we are not supposed to be doing so many 
things up here, we ought to do the same thing for small business to the 
extent that we can. We ought to be more understanding and more in 
partnership with them than adversarial. And a very simplistic, but, I 
believe, necessary approach to that, is to say these kinds of 
regulations are going to be measured in terms of their dollar impact, 
or cost is another way to say it, cost to American business, be it in 
your State, Mr. President, or mine, or in California. All total, a $100 
million impact is to be noted as to its effect on competitiveness, its 
effect on other aspects so it is more apt to be vested with something 
very, very simple, and that is that we understand before we do it 
because we have some evaluations, so we act with knowledge.
  If we acted with knowledge of the impacts, I do not think my group in 
New Mexico, the small business advocacy group, in its four or five 
hearings with a lot of business people, would be telling us the horror 
stories we hear, nor would they be harboring the animosity, anger, and 
anguish they hold toward their own Government today.
  Anybody who thinks that does not exist is just not talking to them. 
And anybody who thinks that is just because they do not want anybody to 
tell them what to do on anything is just not talking to the responsible 
business people I have been talking to. They just do not want to be 
treated irresponsibly. They want to be treated responsibly.
  While I say we are not going to do that with specificity, we are not 
going to have a new approach to the whole regulatory process, we are 
not going to have a new approach which I believe we should have to 
receive input from those [[Page S1183]] affected, we are not going to 
have statewide councils that might look at these regulations and report 
before they become effective so we might have some common sense, these 
are ideas that came out of these conferences of which I spoke. They are 
good ideas. We ought to do them. We ought to even consider on the 
regulatory process having them evaluated on an annual basis by an 
outside group for customer satisfaction.
  Every businessman that serves a lot of people does that, has a 
private company come in and in a random way ask: Did we do what we said 
when we said we would take your $138 and fix your car? Did we treat you 
right? They get graded so the businessman knows if they are customer 
friendly.
  We do not have a chance of doing that with Federal regulations. Maybe 
we will in the future. Let us take one small step today and put small 
business in this bill. If we are going to affect them nationally over 
$100 million, let us get the impact of that in ways that are 
understandable. We may have to develop a few new techniques, but it is 
sure worth it to get started down that path just as much as it is for 
the public sector.
  I thank the Senator for letting me join, and I yield the floor.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, the problem of regulatory review is one 
that goes across the length and breadth of the whole Government, as we 
are all aware. We can pass all sorts of laws in the Senate or the 
Congress, the House of Representatives, whatever; we can pass all sorts 
of laws and then we pass them over to the executive branch to have the 
rules and regulations written, and sometimes the way things come out is 
completely different than what we expected when we passed the 
legislation. So regulatory review is a most important item with which 
we have to deal.
  Now, I have been working in this area of regulatory review on the 
Governmental Affairs Committee for a long time, for a number of years, 
and I am very concerned about it. I compliment my colleagues from 
Oklahoma and from New Mexico for the work they have done and the 
interest they have taken in this particular area, and I think that is 
great.
  I had originally thought that perhaps I would oppose this on one 
ground and that is--not on substantive grounds but on the fact that I 
have legislation that will be in hearing on February 8 by the 
Governmental Affairs Committee. It is S. 100. It is a bill that deals 
with regulatory review in general all across Government. I hope we will 
take a broad view of this and make more sense out of regulatory review 
than the way we run it now.
  We worked with IRA, Information and Regulatory Affairs, through the 
years, and OMB, through the last two administrations and this 
administration, and we hope that the new legislation will make more 
sense out of regulatory review across the whole length and breadth of 
Government, and make sure that we do not just let the regulation 
writers proceed without some bridle on them as far as ignoring the 
costs to public and private interests out there all across the country.
  So, having said that, I am very, very sympathetic to what the 
distinguished Senator from Oklahoma is trying to do here in making sure 
that we get regulatory review.
  Now, staff tells me that what Senators are proposing here is very 
similar or nearly identical--very similar anyway to the Presidential 
Executive order that deals with this same subject. We are checking that 
right now. We are also checking with some of the people on our side who 
we think might have a particular interest in this particular amendment, 
and I will be able to give my colleague an answer as to whether we can 
accept this shortly. I do not want to delay this. But unless he wanted 
to talk or somebody else wanted to talk, I would just put in a quorum 
call at the time until we get an answer back. I hope it will be just a 
few minutes. It was my understanding in discussing this with my friend 
from Oklahoma he would be willing to have a voice vote on this and we 
could get on with other business.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Mr. President, I appreciate the comments from my friend 
and colleague from Ohio. To answer a couple of his questions, I am 
happy to have a voice vote. I am happy to proceed.
  I have a hard time imagining anybody really opposing this amendment 
because, as you mentioned, it may parallel what the administration is 
trying to do. Certainly if regulatory agencies are going to have 
mandates on the private sector in excess of $100 million, they should 
at least identify it. I think in any of the regular reform bills that 
will probably be included.
  Plus the fact we are, in this legislation, telling the regulatory 
agencies to identify the costs if they have an impact on the public 
sector in excess of $100 million. Certainly, if they are going to do 
that for the public sector, they should also do it for the private 
sector. They can probably do it at one and the same time. A lot of 
bills have impacts on both the public and private sectors. So I do not 
even think it will be a duplicative effort. It will just be done.
  Again, if a regulatory agency is going to take an action that has an 
impact of over $100 million, for all practical purposes they should 
have a cost estimate.
  So I appreciate my colleague's interest in this. I also want to 
compliment him and assure him and Senator Roth and others, Senator 
Domenici, Senator Bond, Senator Hutchison, and others--a lot of people 
have done a lot of work on regulatory reform. It is going to be very 
extensive. I am looking forward to that.
  And we are not doing that here. I am talking about cost-benefit 
analysis, risk assessment, using science, as my friend and colleague 
from Ohio has alluded to in the past. It is important that we use real 
science in making some of our determinations.
  I look forward to that debate and that bill, because I think it will 
be a giant step, one that should be bipartisan and one that will help 
rein in the excessive costs of regulation.
  This particular amendment does not do anything to rein it in. It just 
says it should be identified. That by itself might help rein it in. If 
someone in the private sector disagreed with it, we could dispute it. 
We could have a hearing. And if someone says this regulation from EPA 
costs $500 million per year to the private sector, maybe the private 
sector would come in and say, we disagree, it costs $3 billion. That 
would be good interest, good information for people to have. This does 
not stop the regulations from coming into effect. It just says they 
should be identified. It is identical with the regulation on the public 
sector. We think we should identify it for the private sector as well.
  I know there was an interest a moment ago to have a 1-hour time 
agreement. I told the managers of the bill that is not necessary for 
this Senator. I think this is a commonsense amendment, readily 
understood. Hopefully, it will be agreed upon.
  Several Senators addressed the Chair.
  Mr. GLENN. Mr. President, just one further comment. I see another 
Senator seeking the floor here. Just one comment on this.
  The only other caveat I had on this, this bill originally set out to 
deal with unfunded Federal mandates. We now have gotten into public 
overlap and so on, and we are into cross-pollination here in so many 
areas.
  I do not think this particular amendment breaks any new ground in 
this. So I do not have any objection on that ground. We are going to 
try to deal with a lot of these things, though, in the regular review 
of S. 100.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. ABRAHAM. Mr. President I also rise in support of the amendment. 
As I think has already been articulated, the small businesses, and the 
private sector more generally, of this country are heavily inundated 
with burdens imposed by government and direct kinds of taxes and costs. 
They are actually, I think, burdened by regulations that impose 
mandates on them. So I believe the amendment is well in order and 
should be supported.
  Mr. President, I rise in support of S. 1, which, of course, addresses 
the problem of unfunded Federal mandates. S. 1 would significantly 
limit the Federal Government's ability to require State 
[[Page S1184]] or local governments to undertake affirmative activities 
or comply with Federal standards unless the Federal Government was also 
prepared to reimburse the costs of such activities or compliance. As 
with direct Federal expenditures, the financial burdens of such 
mandates fall squarely upon the middle-class taxpayer. I strongly 
commend Senator Kempthorne for continuing leadership on this issue and 
for his sponsorship of S. 1.
  Perhaps nothing better reflects contemporary trends in government 
than the enormous growth in the level of unfunded Federal mandates over 
the past two decades. An unfunded mandate arises when the Federal 
Government imposes some responsibility or obligation upon a State or 
local government to implement a program or carry out an action without, 
at the same time, providing the State or local government with the 
necessary funding. Several recent illustrations of unfunded mandates 
include obligations imposed on States and localities to establish 
minimum voter registration procedures in the Motor Vehicle Voter 
Registration Act; obligations imposed on States and localities to 
conduct automobile emissions testing programs under the Clean Air Act; 
and obligations imposed on States and localities to monitor water 
systems for contaminants under the Safe Drinking Water Act. These 
examples, however, are only the smallest tip of the iceberg.
  While there is virtually no area of public activity in which Federal 
mandates are absent, such mandates are most visible in the area of 
environmental legislation. Of the 12 most costly mandates identified by 
the National Association of Counties in a 1993 survey, 7 of them 
involve environmental programs such as the Resource Conservation and 
Recovery Act, the Clean Air Act, the Clean Water Act, the Endangered 
Species Act, the Safe Drinking Water Act, and the Superfund Act.
  The negative effects of unfunded Federal mandates are at least 
fivefold: First, such mandates camouflage the full extent of Federal 
Government spending by placing an increasingly significant share of 
that spending off-budget, in the form of costs imposed upon other 
levels of government. While it is extraordinarily difficult to assess 
the dollar costs of unfunded mandates, a sense of their magnitude is 
evidenced by a 3-month study done earlier this year by the State of 
Maryland, in which they concluded that approximately 24 percent of 
their total budget was committed to meeting legal requirements mandated 
by Congress. Assuming the rough accuracy of this estimation, and 
assuming that Maryland is not subject to extraordinary levels of 
mandates, this would amount to approximately $80 to $85 billion imposed 
nationally upon all State governments. This figure does not include 
mandates imposed upon local governments. To calculate the true burden 
of Federal spending, the costs of these mandates must be added to an 
already bloated Federal budget. The Federal Government consumes the 
limited resources of the people every bit as much when it compels State 
or local governments to do something as when it directly does something 
itself.
  Second, the impact of the unfunded Federal mandate is to distort the 
cost-benefit analysis that Congress undertakes in assessing individual 
pieces of legislation. The costs imposed by the Congress upon States 
and localities are rarely considered, much less estimated with any 
accuracy. As a result, the presumed benefits of legislative measures 
are not viewed in the full context of their costs. Legislative benefits 
tend consistently to be overestimated and legislative costs tend 
consistently to be underestimated.

  Third, unfunded Federal mandates burden State and local governments 
with spending obligations for programs which they have never chosen to 
incur while requiring them to reduce spending obligations for programs 
which they have chosen to incur. For the options are clear when 
mandates are imposed by Washington: Either State and local governments 
must raise taxes--since they do not have the same access to deficit 
spending as the Federal Government--or they must reorder their budget 
by reducing or terminating programs which had already been determined 
to merit public resources. With State balanced budget requirements and 
with taxpayers already burdened to the hilt by government demands for a 
share of their income, State and local governments are forced into a 
zero-sum analysis by unfunded mandates; every new Federal mandate must 
be compensated for directly by a reduction in another area of State or 
local spending. Further, every Federal mandate must effectively be 
treated as the number one spending priority by State and local 
governments, notwithstanding the sense of their community and the 
judgment of their elected officials. Such governments must first budget 
whatever is necessary to pay for the mandates and only afterwards 
evaluate the level of resources remaining for other spending measures.
  Which leads to the fourth impact of the unfunded Federal mandate. An 
increasing proportion of State and local budgets is devoted to spending 
measures deemed to be important not by the elected representatives in 
those jurisdictions, but rather by decisionmakers in Washington. In 
1993, for example, compliance with Federal Medicaid mandates cost the 
State of Michigan $95.3 million, which exceeded by $7 million the 
combined expenses of the Michigan Departments of State, Civil Rights, 
Civil Services, Attorney General, and Agriculture. Although the Supreme 
Court in recent years has reduced the 10th amendment to effective 
insignificance, I believe nevertheless that there are constitutional 
implications to this trend. It is lamentable enough that the Federal 
budget has grown at the pace that we have witnessed over the past 
generation; for Washington additionally to be determining the budgetary 
priorities of Michigan and Texas and Pennsylvania is for it to trespass 
upon the proper constitutional prerogatives of the States. To the 
extent that the States are straitjacketed in their ability to determine 
the composition of their own budgets, their sovereignty has been 
undermined.
  Indeed, the Constitution aside, it is difficult to understand how a 
reasoned assessment of the efficacy of Federal Government programs over 
the past several decades would encourage anyone in the notion that 
Washington had any business instructing other governments how best to 
carry out their responsibilities.
  Finally, unfunded Federal mandates erode the accountability of 
government generally. The average citizen now finds that his State and 
local representatives disavow responsibility for spending measures 
resulting from Federal mandates, while his Washington representatives 
also claim not to be responsible. Lines of accountability are simply 
too indirect and too convoluted where Federal mandates are involved. 
The result is that the citizenry come to feel that no one is clearly 
responsible for what government is doing, and that they have little 
ability to influence its course.
  I am particularly supportive of S. 1 because I believe that it will 
result in governments at all levels thinking more seriously about the 
proper scope of government. In truth, unfunded mandates are but one 
symptom of the more fundamental problem that the Federal Government has 
lost sight of the proper scope of its functions. While there are some 
mandates that are reasonable, Congress should be prepared to reimburse 
the States for the costs attendant to such mandates. In cases where the 
wisdom of mandates is more dubious, S. 1 would force upon Congress a 
more balanced and a sober decisionmaking process. Instead of neglecting 
the hidden pass-the-buck costs entailed in unfunded mandates, Congress 
instead would be forced to make hard-headed decisions about the costs 
and benefits of new programs. In at least some of these cases, I am 
confident that the legislative balance will be drawn differently than 
that we have consistently seen over recent decades. I am confident that 
the virtues of federalism will be recognized more readily when new 
programs are no longer free but must be explicitly accounted for in the 
Federal budget. The one-size-fits-all mentality which tends to underlie 
most Federal mandates may also be reconsidered in the process.
  At the same time, State and local officials will also have to make 
difficult decisions. With Congress likely to curtail or terminate 
altogether some mandates when confronted with the requirement that they 
have to pay for them, State and local governments will 
[[Page S1185]] have to determine whether they are willing to support 
such programs on their own. No longer will they be able to enjoy the 
benefits of such programs while being able to divert responsibility for 
their costs to the Federal Government. Rather, they will have to make 
equally hard decisions as those that will have to be made by Washington 
lawmakers about the relative merits of public programs.
  Perhaps the greatest long-term benefit of the present legislation is 
that it will force more open and honest decisionmaking and budgeting 
upon all levels of government. When greater governmental accountability 
is achieved, the public will be better positioned to punish and reward 
public officials for actions. As a result, government will be more 
responsive to the electorate in its spending decisions. Government, in 
short, will be made more representative by this legislation.
  Further, Federal bureaucracies themselves will have to be more 
respectful of the costs that they impose upon State and local 
governments. Currently, these bureaucracies give little or no 
consideration to such costs because none of those costs are borne by 
the agencies themselves. When the real costs of Federal regulation are 
attributed to the agency responsible for such regulation, agencies will 
gain an extraordinarily useful perspective on the burdens that they are 
imposing on other levels of government.

  Going beyond the present measure, I would hope that we will be able 
to address several related matters in the near future. First, I do not 
believe that the bar on unfunded mandates should be limited to future 
initiatives. Given the burdens currently being borne by State and local 
governments, I favor in certain instances the retroactive application 
of the commonsense principle incorporated in this legislation. Second, 
I favor legislation that addresses the problem of conditional mandates. 
Conditional mandates arise when the Federal Government provides grants-
in-aid to the States with strings or conditions attached. While these 
conditions may be reasonable and designed to ensure that money 
dispensed is being utilized effectively, other conditions may be far 
more tangentially related to the grants. I do not believe that Federal 
grant programs should be used to circumvent the present legislation's 
bar on direct Federal mandates. Therefore, I would support legislation 
such as that offered by Senator Hatch, which would prohibit conditional 
mandates unless they were directly and substantially related to the 
specific subject matter of the Federal grants-in-aid.
  Mr. President, by changing the rules of the legislative process and 
forcing upon Congress more accountable decisionmaking, the present 
legislation will, in my judgment, contribute greatly to a more 
responsible and balanced legislative product. This measure is not 
antienvironment, anti consumer safety, or antiregulation, as its 
opponents have suggested. Rather, it is pro open and honest government 
decisionmaking. If a majority of the Congress continues to support a 
particular mandate, that majority has the unfettered discretion to 
promulgate the mandate; they are constrained only in their ability to 
hide the costs of the mandate and to obscure where governmental 
responsibility lies for the mandate.
  I ask unanimous consent to have printed in the Record several 
resolutions and letters I have received from governmental bodies in 
Michigan in support of this legislation. In view of the strong support 
for this measure from the National Conference of State Legislators, the 
National Association of Counties, and the National League of Cities, as 
well as on the basis of my own conversations over the past year, I am 
convinced that these writings reflect the overwhelming sentiment of 
Michigan communities, as well as communities across the United States.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                              City of Inkster,

                                     Inkster, MI, January 5, 1995.
     Re unfunded mandates.

     Senator Spencer Abraham,
     Dirksen Building,
     Washington, DC.

       Dear Senator Abraham: Unfunded Mandates have very 
     debilitating effects upon cities similar to Inkster. Perhaps 
     I should not repeat the litany of complaints that you have 
     already heard, but I am compelled to advise you of the 
     limiting factors which automatically places the City of 
     Inkster in a position of default under the existing rules and 
     regulations related to these unfunded mandates.
       Inkster is mandated to erect three (3) retention basins in 
     regard to the Combined Sewer Operation program imposed by the 
     Federal Government.
       Listed below you will find some very important factors 
     about the City of Inkster and how unfunded mandates affect 
     our community:
       We have an annual General Fund Budget of only 
     $10,908,350.00;
       By Michigan law we can levy no more than 20 mills Real 
     Property tax;
       Our current levy is 19.52 mills;
       Our water and sewer rates are controlled by the amount 
     charged by the City of Detroit and they are outrageous;
       Our bonding capacity is such that our share ($23 million) 
     for the first basin has to be guaranteed by Wayne County to 
     the Michigan State Bond Authority and the State Revolving 
     Fund;
       Additionally, Inkster must lease the land upon which the 
     basin will be sited for $1,500.00 per year;
       I need not go on. You can see the untenable position that 
     we are in. I very strongly urge you to vote relief for all 
     cities caught in this impossible web by supporting and 
     seeking support to HB 5128 and SB 993 which will soon be 
     considered.
           Very sincerely,
                                               Edward Bivens, Jr.,
     Mayor.
                                                                    ____



                                               City of Taylor,

                                     Taylor, MI, January 12, 1995.
     U.S. Senator Spencer Abraham,
     Dirksen Office Building,
     Washington, DC.
       Dear Senator Abraham: As Mayor of the City of Taylor, I 
     have watched with growing dismay the increase in unfunded 
     federally mandated programs. Congress should implement the 
     following provisions for any future legislation:
       1. Require that state and local officials be afforded the 
     opportunity to provide meaningful input (given a real voice 
     in the planning.)
       2. Require an assessment of costs and benefits associated 
     with the planning and/or implementation of any federally 
     mandated programs.
       3. Federal funds should be budgeted/appropriated prior to 
     enactment of any such legislation.
       Senator Abraham, if implemented these suggestions will go a 
     long way toward building a meaningful partnership between the 
     federal, state, and local governments, to better serve the 
     American people. I wish to commend you for your pro active 
     position on this vital issue and urge the support of your 
     colleagues.
           Sincerely,
                                                Cameron G. Priebe,
     Mayor.
                                                                    ____



                                             City of Muskegon,

                                   Muskegon, MI, January 12, 1995.
     Hon. Spencer Abraham,
     State Senator,
     Warren, MI.
       Dear Senator Abraham: I appreciated the opportunity to talk 
     to you yesterday regarding my concerns about Unfunded Federal 
     Mandates and the burden they place on cities such as 
     Muskegon. These mandates create an undue burden that 
     compounds the problems and difficulties already encountered 
     by local municipalities. Therefore, I encourage you continued 
     efforts in eliminating unfunded mandates.
       Thank you for your assistance in this very important 
     matter.
           Sincerely,
                                                   James W. Pruim,
     Mayor.
                                                                    ____



                                            City of Wyandotte,

                                  Wyandotte, MI, January 12, 1995.
     Hon. Spencer Abraham,
     U.S. Senator,
     Washington, DC.
       Dear Senator Abraham: I am writing this letter as a result 
     of the discussion I heard while watching C-SPAN this morning, 
     January 12, 1995, at approximately 10:00 a.m. This 
     discussion, which took place before a committee chaired by 
     Senator Nancy Kassabaum from Kansas, has prompted me to send 
     this FAX.
       I thought Governor Thompson did an excellent job, however, 
     I was disturbed by the comments made by Democratic Senator 
     John Breaux from Louisiana and by Senator Ted Kennedy from 
     Massachusetts, whose statements indicated their apparent 
     distrust of the individual states. What I feel was really 
     said by these senators was that we at the local level of 
     government would not be sensitive to the needs of the poor 
     unless the programs developed to assist the poor were 
     designed in Washington. Where have they been?
       Why do people in Washington feel that they are more honest 
     and do a better job than those of us on the firing line day 
     in and day out? As Governor Thompson suggested, let us design 
     our own projects and hold us accountable for the results 
     rather than having to abide by mandates written by 
     bureaucrats in Washington who are, in my opinion, 
     [[Page S1186]] out of touch with what goes on in our cities 
     on a daily basis.
       Evaluate us based on our results rather than trying to pass 
     laws and make rules that reduce the flexibility we all need. 
     (Local) Government must have the authority to react more 
     quickly in order to serve the people that Senate Kennedy and 
     Senator Breaux, as well as the other senator from Minnesota, 
     thought we would ignore.
       This letter is meant to be straightforward and direst so 
     there is no misunderstanding concerning my feelings about the 
     issue of unfunded mandates.
           Sincerely,
                                                  James R. DeSana,
     Mayor.
                                                                    ____



                                             City of Dearborn,

                                   Dearborn, MI, January 12, 1995.
     Hon. Spencer Abraham,
     U.S. Senator,
     Washington, DC.
       Dear Senator Abraham: In response to your initial request 
     for my opinion regarding national issues requiring immediate 
     attention, the issue of unfunded mandates stands out in my 
     mind as one with extremely direct consequences for local 
     governments.
       According to studies conducted by Price Waterhouse, 
     unfunded federal mandates will cost local governments nearly 
     $90 billion over the next five years. Cities will pay about 
     $6.5 billion this year and $54 billion over the next five 
     years, while counties will incur costs totaling $4.8 billion 
     this year and $33.7 billion over the next five years.
       I have attached a copy of a resolution that was adopted by 
     our City Council. The resolution attempts to focus local and 
     national attention on the threat unfunded federal mandates 
     pose to local budgets and local citizens. It urges our 
     representatives to force change in the way the federal 
     government considers future mandates.
       I believe that any action on this issue that views local 
     governments as partners in the governance of this great 
     country will benefit all of us who call ourselves public 
     servants.
           Respectfully submitted,
                                                 Michael A. Guido,
                                                            Mayor.

                               Resolution

       Whereas: Unfunded federal mandates on state and local 
     governments have increased significantly in recent years 
     (according to Price Waterhouse, unfunded mandates will cost 
     local governments nearly $90 billion over the next 5 years); 
     and
       Whereas: Federal mandates require cities and towns to 
     perform duties without consideration of local circumstances, 
     costs, or capacity, and subject municipalities to civil or 
     criminal penalties for noncompliance; and
       Whereas: Federal mandates require compliance regardless of 
     other pressing local needs and priorities affecting the 
     health, welfare, and safety of municipal citizens; and
       Whereas: Excessive federal burdens on local governments 
     force some combination of higher local taxes and fees and/or 
     reduced local services on citizens and local taxpayers; and
       Whereas: Federal mandates are too often inflexible, one-
     size-fits-all requirements that impose unrealistic time 
     frames and specify procedures or facilities where less costly 
     alternatives might be just as effective; and
       Whereas: Existing mandates impose harsh pressures on local 
     budgets and the federal government has imposed a freeze upon 
     funding to help compensate for any new mandates; and
       Whereas: The cumulative impact of these legislative and 
     regulatory actions directly affect the citizens of our cities 
     and towns; and
       Whereas: The National League of Cities, following up on 
     last year's successful effort, is continuing its national 
     public education campaign to help citizens understand and 
     then reduce the burden and inflexibility of unfunded 
     mandates, including a National Unfunded Mandates Week, 
     October 24-30, 1994; therefore, be it
       Resolved: That the City of Dearborn, by its Mayor and City 
     Council, endorses the efforts of the National League of 
     Cities and supports working with NLC to fully inform our 
     citizens about the impact of federal mandates on our 
     government and the pocketbooks of our citizens; be it further
       Resolved: That the City of Dearborn endorses organizing and 
     participating in events during the week of October 24-30, 
     1994, and throughout the year; be it further
       Resolved: That the City of Dearborn resolves to continue 
     our efforts to work with members of our Congressional 
     delegation to educate them about the impact of federal 
     mandates and actions necessary to reduce their burden on our 
     citizens.
                                                                    ____



                                            City of St. Clair,

                                  St. Clair, MI, November 9, 1994.
     Senator Elect Spencer Abraham,
     Senate Office Building,
     Washington, DC.
       Dear Mr. Abraham: Enclosed with this letter is a resolution 
     adopted by the St. Clair City Council on Monday, November 7, 
     1994. The resolution details the City of St. Clair's stance 
     on Unfunded Federal Mandates and the need for Congress to 
     address this matter.
       Also included is a pledge to vote on legislation which 
     addresses Unfunded Federal Mandates. I, the members of the 
     City Council and the residents of the City of St. Clair ask 
     that you please sign the attached pledge to push for a vote 
     on the unfunded federal mandates legislation. Please return a 
     signed copy of the pledge to me at the following address: 
     Bernard E. Kuhn, Mayor, City of St. Clair, 411 Trumbull 
     Street, St. Clair, Michigan 48079.
       Thank you in advance for your attention to our concerns. If 
     you have any questions, please do not hesitate to contact me.
           Sincerely,
                                                  Bernard E. Kuhn,
                                                            Mayor.

                          Resolution No. 94-54

       Whereas, unfunded federal mandates on state and local 
     governments have increased significantly in recent years; and
       Whereas, federal mandates require cities and towns to 
     perform duties without consideration of local circumstances, 
     costs or capacity, and subject municipalities to civil or 
     criminal penalties for non-compliance; and
       Whereas, federal mandates require compliance regardless of 
     other pressing local needs and priorities affecting the 
     health, welfare and safety of municipal citizens; and
       Whereas, excessive federal burdens on local governments 
     force some combination of higher local taxes and fees and/or 
     reduced local services on citizens and local taxpayers; and
       Whereas, federal mandates are too often inflexible, one-
     size-fits-all requirements that impose unrealistic time 
     frames and specify procedures or facilities where less costly 
     alternatives might be just as effective; and
       Whereas, existing mandates impose harsh pressures on local 
     budgets and the federal government has imposed a freeze upon 
     funding to help compensate for any new mandates; and
       Whereas, the cumulative impact of these legislative and 
     regulatory actions directly affect the citizens of our cities 
     and towns; and
       Whereas, the National League of Cities, following up on 
     last year's successful effort, is continuing its national 
     public education campaign to help citizens understand and 
     then reduce the burden and inflexibility of unfunded 
     mandates; now, therefore, be it
       Resolved, That the City of St. Clair endorses the efforts 
     of the National League of Cities and supports working with 
     NLC to fully inform our citizens about the impact of federal 
     mandates on our government and the pocketbooks of our 
     citizens; and
       Be it further resolved, That the City of St. Clair endorses 
     organizing to receive a written pledge from our 
     representatives in Washington to vote on federal relief from 
     unfunded mandates; and
       Be it further resolved, That the City of St. Clair resolves 
     to continue our efforts to work with the members of our 
     Congressional delegation to educate them about the impact of 
     federal mandates and actions necessary to reduce their 
     burdens on our citizens.

                 Unfunded Federal Mandates Week Pledge

       I pledge to the voters and taxpayers of the City of St. 
     Clair to ensure a vote in Congress on federal unfunded 
     mandates relief legislation for state and local governments 
     before April 1, 1995.
       If we in Congress fail to have a recorded vote to 
     demonstrate accountability by that date, I pledge to submit a 
     written report to the Mayor and Council of the City of St. 
     Clair specifically detailing my efforts and the specific 
     steps I will take to ensure action.
       Signed:      .
                                                                    ____



                               Michigan Townships Association,

                                    Lansing, MI, January 12, 1995.
     Hon. Spencer Abraham,
     U.S. Senator,
     Washington, DC.
       Dear Senator Abraham: The Michigan Townships Association 
     urges your yes vote on S. 1, the Unfunded Mandates Reform 
     Act. On behalf of all Michigan township officials, I also 
     encourage you to resist any and all amendments that would 
     weaken the intent of this proposed legislation.
       Michigan has had a state law since 1978 designed to prevent 
     the imposition of mandated costs on local governments. During 
     its passage, however, 15 or more ``loopholes'' were written 
     into the language that weakened the intent of the Bill. 
     Please hold the line against these attempts to water down the 
     intent of S. 1.
           Sincerely,
                                                  John M. La Rose,
                                               Executive Director.

  Mr. NICKLES. Mr. President, I wish to congratulate the Senator from 
Michigan for an outstanding speech, a relatively new Member to our 
body, but as evidenced by his speech and by his work in the Senate this 
month he in my opinion will prove to be an outstanding asset to the 
State of Michigan without any doubt and certainly to this body and to 
our country.
  So I compliment him on his remarks. I thank him very much for his 
support of our amendment as well.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Mr. President, I thank the Chair.
  Mr. President, I wanted to ask a question of my friend from Oklahoma 
about the meaning of his amendment. [[Page S1187]] As I understand it, 
the statement that would be required to be prepared, pursuant to 
section 202(a), if this amendment is adopted, would have to be prepared 
for either the private sector or the public sector providing they reach 
in either case $100 million annually adjusted for inflation. Is that 
correct? In other words, if the public sector mandates the cost of $100 
million in any one year, that will trigger the reform.
  Mr. NICKLES. The Senator is correct.
  Mr. LEVIN. If the private sector mandate is $100 million more, that 
would trigger the reform.
  Mr. NICKLES. The Senator is correct.
  Mr. LEVIN. But if they were both $60 million, there would not be a 
report triggered.
  Mr. NICKLES. The Senator is correct again.
  Mr. LEVIN. I thank the Senator for that clarification.
  I have one other question. Perhaps my friend from Ohio will want to 
help on this. There could be an easy answer to it. In any 1 year, is 
that any one of the 5 fiscal years that are estimated, or is that any 1 
year? When? Anytime, ever? What does that 1 year reference? I am sorry 
I did not have a chance to ask it of either Senator before. I am asking 
this on the floor. Perhaps we could get an answer to that later. I am 
just not sure what that means, ``1 year.''
  Mr. NICKLES. Mr. President, just looking at the language on page 35 
of the bill, that is really where we are amending the section, that 
section 202, that is the one which defines the call for reports. 
Basically it says the report shall be issued if you have regulatory 
impact of in excess of $100 million or the public sector in any one 
year. I would think that would be any one calendar year. Regulatory 
agencies would be analyzing the cost of their changes, and they would 
have an annual cost. They may do an annual cost over several years. My 
guess would be that would be in any one particular calendar year. That 
is just my reading. We did not amend that language. We just included 
private sector in our amendment.
  Mr. LEVIN. I thank the Senator from Oklahoma for that. Maybe I should 
address this then to the managers. What does the reference ``any one'' 
year mean, on line 15, page 35? Is that any one year, ever? Is that any 
one year of the 5 years of the 5 fiscal years? What is that reference?
  Mr. KEMPTHORNE. Will the Senator yield?
  Mr. LEVIN. I would be happy to.
  Mr. KEMPTHORNE. I apologize. Will the Senator repeat the question?
  Mr. LEVIN. My question is this: On line 15, page 35, there is a 
reference to the $100 million which the Senator from Oklahoma is now 
amending to apply to either public or private. And my question that 
properly should have been addressed to the Senator from Idaho is: Is 
that 1 year, 1 year of the 5 fiscal years for which the estimate is 
being made? Or is that some other reference? I assume that means a 
fiscal year, too. I am trying to clarify what the reference is.

  Mr. NICKLES. If the Senator will let me respond, again, I think you 
are right. The reference is to the legislation. My guess is that the 
regulatory agencies would determine the fiscal impact. I would think 
they would do it not on fiscal year but on calendar year--I may be 
incorrect--and that if the regulatory impact exceeded $100 million, as 
adjusted for inflation in subsequent years, then they would have to 
identify the costs.
  Again, I do not see that as a big burden. If you are going to have a 
regulatory impact on the public sector in excess of $100 million, they 
should know it and identify it. If they are going to have a regulatory 
impact on the private sector in excess of $100 million, for subsequent 
years--my colleague mentioned 5 years, and I do not know what 
regulatory agencies--we do 5-year budgeting, although not very well. 
But I do not know that when they issue those regulatory statements, 
they automatically cover 5 years. I am not sure.
  Mr. LEVIN. While we are on this line--I am wondering, while we are 
focused on this one line of the bill, I have not had a chance to ask my 
friend from Idaho this question either. Is the reference to ``adjusted 
annually for inflation,'' adjusted from the effective date of the law, 
so that if the law is effective January 1, 1996, that that is the 
baseline for the $100 million, and then if it is 3 percent inflation, 
on January 1, 1997, this then will reread $103 million? Is that the 
intent of the Senator from Idaho?
  Mr. KEMPTHORNE. In response to the Senator, Mr. President, that is my 
understanding of the intent, yes.
  Mr. LEVIN. I thank the Senator.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  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. GLENN. 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. GLENN. Mr. President, we have finished checking on our side, and 
we would be glad to accept the amendment of the distinguished colleague 
from Oklahoma. As I said earlier, we will be addressing this same 
regulatory review problem in the Governmental Affairs Committee with 
the hearing on S. 100, which is legislation I put in on a broader gauge 
of regulatory review consideration. We welcome the Senator's input on 
that, so we can work this out together. We would be happy to accept his 
amendment on this side.
  Mr. KEMPTHORNE. Mr. President, we also would be very supportive of 
accepting this amendment. We thank the Democratic side for the 
agreement. We commend Senator Nickles and Senator Domenici for their 
work on this. It is an important addition to the bill.
  Mr. NICKLES. Mr. President, I thank my friends from Idaho and Ohio, 
as well as Senators Domenici and Shelby. I appreciate their 
cooperation.
  The PRESIDING OFFICER. Is there further debate?
  The question is on agreeing to the amendment of the Senator from 
Oklahoma.
  The amendment (No. 169) was agreed to.
  Mr. KEMPTHORNE. Mr. President, I move to reconsider the vote.
  Mr. GLENN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan [Mr. Levin] is 
recognized.


                           Amendment No. 170

    (Purpose: To include gender in the statutory rights prohibiting 
            discrimination to which the Act shall not apply)

  Mr. LEVIN. 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 Michigan [Mr. Levin], for himself, Mr. 
     Glenn, Mr. Kempthorne, and Mr. Grassley, proposes an 
     amendment numbered 170.

       The amendment is as follows:

       On page 12, line 18, insert ``age'' after ``gender,''.

  Mr. LEVIN. Mr. President, this bill has certain exclusions in certain 
areas where sponsors of the bill have determined that it should not 
apply. Section 4 on page 12 reads that ``The provisions of this act and 
the amendments made by this act shall not apply to any provision in a 
bill, or joint resolution before Congress, and any provision in a 
proposed or final regulation that''--and then there is a list of six 
exclusions. These are important exclusions, because what the bill would 
do is to say where any of these six things exist, no point of order 
would lie, and there is not going to be any presumption that a mandate 
has to be funded in order to apply to State and local governments. For 
instance, if a mandate enforces the constitutional rights of 
individuals, that mandate is going to apply to State and local 
governments and there is not going to be any presumption of 
nonapplicability in the absence of a mandate.
  The next exclusion under section 4 is, ``If the bill or the joint 
resolution establishes or enforces any statutory rights that prohibit 
discrimination on the basis of race, religion, gender, national origin, 
or handicap or disability status.'' [[Page S1188]] 
  It is that exclusion that I believe is deficient, and it is that 
exclusion to which my amendment is addressed. We have laws that protect 
people against age discrimination, which are very vital laws in this 
country.
  Those laws have been fought over, fought for, and they are vital to 
Americans. We have mechanisms to enforce that antidiscrimination law. 
And it is important that age discrimination be placed in the same 
paragraph and also excluded from this bill's applicability and that we 
also require State and local governments to carry out the national 
purpose of no discrimination based on age.
  Just as we have said that where there is a statutory right that 
prohibits discrimination based on race or religion or gender or 
national origin or handicap or disability status, this law is going to 
not be applicable. A mandate, even if it is unfunded, is going to apply 
to State and local governments where it establishes or enforces rights 
that prohibit discrimination based on any of those factors.
  So this amendment would add the word ``age'' to that subsection 2 so 
we would protect age discrimination laws the way we do other 
discrimination laws and we would apply age discrimination laws to State 
and local governments without any presumption that they would have to 
be given the funds in order to implement this mandate.
  That is the heart of this amendment.
  I know that the managers have accepted the amendment, since both of 
them are cosponsors of it. I understand that the Senator from Ohio, 
however, may have a modification to it and that he may want to address 
that.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  The Chair would advise the Senator from Michigan that the amendment 
is out of order.
  Mr. LEVIN. I thank the Chair.
  I am wondering if we could note the absence of a quorum so we could 
discuss this.
  Mr. GLENN. Perhaps we could go ahead and I could discuss this without 
it being out of order while we get an input from a couple other 
Senators that have an interest in it. If we could discuss it until we 
get that information, we might just save a little time.
  The PRESIDING OFFICER. Is there objection? Hearing none, the Senator 
from Ohio is recognized.
  Mr. GLENN. I thank the Chair.
  Let me congratulate my friend from Michigan. He has not been pointed 
out much on this whole bill, but there is no one who has looked into 
this in any more detail and with real detail on specific wording and 
taking an active part and making sure that this legislation, if passed, 
is going to be workable--workable. And that is the important thing of 
having someone like the Senator from Michigan, who does look into 
details. We, too, often pass things out of here that do not have that 
kind of scrutiny and we wind up regretting later that we really did not 
take time to go into details.
  In committee, in considering this legislation the other day when we 
were brushed aside pretty much in the committee by party-line votes, he 
was trying to lead the charge there on making sure that the language 
was workable, that we corrected errors in the bill, and that we made it 
as workable as possible.
  Now, that was not possible in committee, but he is continuing that 
effort here on the floor. He certainly deserves every credit for what 
he has been doing on this, and I am the first to acknowledge that. He 
has really been a tiger in seeing that this thing was done properly, 
and I want to commend him for that.
  I think, once again, he has come up with the suggestion here where 
age was left out. In almost all the legislation we pass now, we make 
sure that these areas of minority discrimination, of age and 
disabilities and so on are left in the bill.
  I had originally planned to put in an amendment on this myself. My 
amendment would have been a little more broad than the one that the 
Senator from Michigan has proposed. My amendment would have said, 
``that prohibit discrimination on the basis of race, color, religion, 
sex, national origin, age, handicap, or disability.'' So in one line it 
was taking a little broader sweep than just correcting age.
  I believe, in the original planning of the bill, that color was also 
left out. And that is normally considered as part of our standard 
litany in new legislation with regard to those people we wish to 
protect within our society.
  Mr. President, with the parliamentary situation being what it is, I 
cannot offer a second-degree amendment to the amendment that the 
distinguished Senator from Michigan has proposed. I submit to him, I 
wonder if he might prefer to swing the little broader loop that I was 
going to propose with my amendment and perhaps, if he wished to modify 
his amendment with some of this language, that would take care of not 
only the age but the color that was also left out and in one line then 
include the things we normally include in it. And it would read, then, 
``that prohibit discrimination on the basis of race, color, religion, 
sex, national origin, age, handicap, or disability.''
  I yield the floor.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER (Mr. Frist). The Senator from Michigan.
  Mr. LEVIN. Mr. President, first, let me thank my good friend from 
Ohio for his very fine comments. His leadership on the Governmental 
Affairs Committee has been extraordinary over the years. He is now 
ranking member. He has continued to not only insist on legislation 
which is workable, as he phrases it, which is so important, but he has 
also fought hard to protect the rights of all the members of that 
committee so that we would have an opportunity to offer amendments.
  I would remind this body that the Senator from Ohio is a chief 
cosponsor of this legislation and was the principal sponsor of last 
year's legislation, which was somewhat different but not greatly 
different and aimed at exactly the same purpose. So he is an expert on 
this subject of unfunded mandates and has been a leader in the fight to 
try to reduce the number of unfunded mandates.
  Whatever is easier, I would be happy either to modify the amendment 
or that it be second degreed as soon as we can get clearance that I can 
make my amendment in order by asking that the committee amendment be 
set aside so that it be in order.
  Mr. BYRD. Mr. President, is the Senator making that request?
  Mr. LEVIN. Mr. President, I ask unanimous consent that the committee 
amendment be laid aside so that the amendment which I sent to the desk 
be in order. I understand it is not in order and I understand why. So I 
do ask unanimous consent that the committee amendment be laid aside for 
that purpose and then apparently it would again become the pending 
business as soon as this amendment and its modification were disposed 
of.
  Mr. BYRD. Mr. President, reserving the right to object; of course, I 
will not object.
  Mr. President, as I say, I have no objection and will not object, but 
I want to compliment the Senator for a trait that I discovered many 
years ago about this Senator from Michigan. He goes over matters with a 
fine-tooth comb. He is meticulous. He is a meticulous, careful 
craftsman. And I have said this to him privately on several occasions. 
I congratulate him. I want to do it publicly.
  And also I think this points out the beneficial effects of proceeding 
with a little more care, taking a little more time and not acting in 
quite so much haste. It underlines what I said a number of times, that 
we need to slow down and take a look and carefully examine what we are 
doing. And it seems to me that in this instance we can feel assured 
that we did the right thing. I congratulate the Senator.

  Is the Senator going to ask for the yeas and nays?
  Mr. LEVIN. Mr. President, I believe they will accept this amendment. 
If they do, in this case I will not ask for the yeas and nays unless 
there are others that would request the yeas and nays. I believe the 
managers have accepted this and, indeed, have cosponsored it. In this 
instance I will not ask for the yeas and nays. But there may be others 
who would want the yeas and nays.
  Mr. KEMPTHORNE. Would the Senator yield?
Mr. LEVIN. I yield.
[[Page S1189]]
  Mr. KEMPTHORNE. That is correct, Mr. President. We are certainly 
supportive of accepting this amendment and would state that I agree 
with the Senator, that there was no intention to leave out these 
classes. In fact, we had discussed that they would be included in the 
managers' amendment. I think this is very appropriate to proceed with 
this amendment as proposed by Senator Levin.
  I would point out also when we think about the pace, that the 
language that we have in S. 1 dealing with this is the identical 
language that was in Senate bill 993 last year that went through 
committees in both the Senate and the House. This was not addressed.
  Again, it was not done intentionally. This is appropriate to correct 
it. We appreciate the Senator from Michigan.
  Mr. LEVIN. Mr. President, I do not know if I have the floor or not.
  The PRESIDING OFFICER. The Senator from Michigan has the floor.
  Mr. LEVIN. Mr. President, let me say to my friend from West Virginia 
that he is the legislative craftsman par excellence, as far as I am 
concerned. And he has been a role model in this regard, reminding all 
Members of the importance of taking the time to craft laws which will 
work in the real world.
  There are times we have the best of intents and we have the worst of 
unintended consequences. We have to take the time to work through bills 
such as this. That is a different bill from last year in very 
significant ways. He has been a role model, indeed, in this area for me 
and to the extent that I got involved with nuts and bolts, as he has 
pointed out.
  I am grateful for his comment. It is in large measure because there 
have been a lot of people who have set a standard in this area, that I 
think is very important for me to follow. I am thankful for the 
comments.
  Mr. BYRD. Will the Senator yield?
  Mr. President, I think it is important to the extent that it ought it 
to be given public recognition. The kind of public recognition that is 
given to a rollcall vote. We have had rollcall votes on matters of 
lesser importance, at least in my view. I am just looking at it from 
one man's vantage point. I think we ought to have a rollcall vote on 
it. This is an important amendment. At some point in time we ought to 
do that.
  I have not made the request, but I will make the request at the 
appropriate time.
  The PRESIDING OFFICER. The request made by the Senator from Michigan 
is pending.
  Mr. LEVIN. Mr. President, if the majority leader would just withhold, 
I have a pending unanimous-consent request that they have not yet ruled 
on, that the committee amendment be set aside in order that my 
amendment, as modified by the Senator from Ohio, be in order. That was 
a pending unanimous-consent request, and I am wondering if the majority 
leader might withhold to see if there is any objection to that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEVIN. Mr. President, I thank the Chair and I thank the majority 
leader.
  The PRESIDING OFFICER. Is there further debate on the amendment?
  Mr. DOLE. The Senator from West Virginia has the floor. I want to 
make an inquiry.
  If the yeas and nays are ordered, I wonder if we might have that vote 
occur at about 8:30. I think a lot of people left with the 
understanding there might be debate but no vote. I will check with the 
Democratic leader. I do not have any quarrel with the rollcall. Maybe 
we can have a couple more amendments by that time, too.
  Mr. BYRD. Mr. President, I certainly have no problem with that.
  May I say to the distinguished leader I felt that this is a very 
important amendment. We will have this bill, it is very important to a 
lot of people in this country. The word ``age'' and other words, that I 
understand the Senator from Michigan and the Senator from Ohio are 
interested in. It gives the public recognition to an amendment just 
that important. A rollcall vote is more noticed in conference with the 
House, as well, than a voice vote. It also shows that this bill is 
being improved by our taking a little time. By our taking a little 
time, studying the bill, debating, probing. So we are making some 
improvements.
  Would the distinguished majority leader like to lock in the vote at 
this point?
  Mr. President, while we are on this 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.
  Mr. GLENN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The Clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ROBB. 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. ROBB. Mr. President, I ask unanimous consent, although it is not 
necessary, that we turn to a period of morning business for about 7 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROBB. Mr. President, thank you.
  The Senator yields to the Senator from Ohio.


                     Amendment No. 170, as modified

  Mr. GLENN. If the Senator would yield for a moment. When we sent the 
Levin amendment to the desk, it did not have the changed language that 
I suggested. He was changing his own amendment. The copy that was sent 
to the desk was not the proper copy. We would like to modify that 
amendment, and since the yeas and nays have been ordered that would 
normally not be in order.
  I would ask unanimous consent that Senator Levin be permitted to 
modify his amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment will be so modified.
  The amendment (No. 170), as modified, is as follows:

       On page 12, strike lines 17 through 19 and insert ``that 
     prohibit discrimination on the basis of race, color, 
     religion, sex, national origin, age, handicap or 
     disability;''.

  Mr. GLENN. I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.

                          ____________________