[Congressional Record Volume 141, Number 13 (Monday, January 23, 1995)]
[Senate]
[Pages S1339-S1344]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                  IN BEHALF OF A CULTURAL CUTTING EDGE

  Mr. BYRD. Mr. President, we live in an era of technological 
miracles--inventions, phenomena, and developments whose inventors and 
initiators might have been burned at the stake as witches and warlocks 
in the so-called ``Dark Ages'' for even suggesting, much less producing 
or conducting, such things.
  Automobiles, jet aircraft, space vehicles, CD records, microwave 
ovens, telephones, artificial hearts, organ transplants--inventions, 
opportunities, and creations that some of our ancestors only a century 
ago might have found unbelievable, if not unimaginable.
  But, Mr. President, perhaps the one modern invention that has had, 
and will have, the greatest impact on human life is television.
  Imagine, if you will, the astonishment of George Washington, Thomas 
Jefferson, or even Benjamin Franklin if any one of those men were able 
to sit down with us today in front of that vast wasteland, as Newton 
Minow referred to it--a television set.
  Imagine being able to tune in with them on a one-on-one conversation 
across the Atlantic with British Prime Minister John Major or German 
Chancellor Helmut Kohl, to discuss Trans-Atlantic alliances or 
international trade issues, for example.
  Or imagine the astonishment of U.S. Grant or Robert E. Lee had they 
been able in their time to sit before a television set and view the 
actual progress of the Siege of Vicksburg or the Battle of Gettysburg, 
as so many millions of everyday Americans viewed the progress of the 
Gulf War or the shooting down of ``Scud'' missiles incoming over Tel 
Aviv or Riyadh, Saudi Arabia.
  Interestingly, perhaps even the Founding Fathers of the television 
did not foresee the scope of television or grasp the possibilities that 
this miracle offered in its earliest, fuzziest beginnings.
  In those primeval days of television broadcasting--roughly, the late 
1930's and pre-World War II 1940's--the biggest star attractions 
consisted primarily of telecast images of ``Felix the Cat'' and local 
station test patterns, which fascinated people even though they offered 
the crudest of images and practically no motion.
  But following the end of the Second World War, several radio programs 
began ``simulcasting''--that is, broadcasting both on infant television 
networks and on the established radio networks at the same time.
  Thus, in time, millions of Americans were enabled both to see and 
hear ``The Voice of Firestone,'' ``The Bell Telephone Hour,'' and ``The 
NBC Orchestra,'' conducted by Arturo Toscanini. Increasing numbers of 
American families were exposed to the music of Beethoven and Schubert, 
and to the considerable talents of the finest musical figures of the 
Metropolitan Opera or La Scala.
  In time, NBC introduced plays by some of America's leading 
playwrights on ``The Philco/Goodyear Playhouse,'' and CBS on ``Studio 
One''--plays many of which went on to be reproduced into classic 
movies, and plays that introduced some of today's leading actors and 
actresses to millions upon millions of Americans who had been unable to 
witness their Broadway and off-Broadway debuts.
  For children in those early days of television, ``Howdy Doody,'' 
``Romper Room,'' ``Miss Frances'' on ``Ding Dong School,'' and 
``Captain Kangaroo'' provided often brilliant exposure to experiences 
and information unavailable to them anywhere else--experiences and 
information that conveyed values, taught serious while camouflaged 
knowledge, stretched tiny minds--tiny minds--and imaginations, and 
helped untold millions of preschool children prepare for the serious 
business of entering school and beginning their formal educations.
  The apparent goal of television executives in those early days seemed 
to be to reach growing numbers of middle-class and upper-middle-class 
American consumers whom sponsors wanted to attract to buy their 
automobiles, bath soaps, refrigerators, and dish detergents--consumers 
with high incomes and relatively good educations, and men and women of 
all income and educational levels who hungered for good music, 
compelling drama, and intellectually challenging entertainment and 
diversion.
  Likewise in those days, sponsors were eager to have their names and 
trademarks associated with ``quality culture,'' in hopes of winning and 
keeping consumer loyalty and gratitude, both valued intangibles in the 
supermarkets and department stores when viewers contemplated their 
purchases.
  But as time passed, advertisers more and more craved only higher and 
higher audience numbers. In the search for those numbers, sensation 
drove out substance, and action cancelled out content.
  In time, in pursuit of ratings, television producers lost their 
nerve.
  If a single ``cowboy'' show caught the public's fancy, dozens of 
cowboy shows appeared, crowding out most other programming. If the next 
season a single detective show garnered high ratings, off the 
television range fled the cowboys, and detective shows proliferated 
across the dial. The same held true of variety shows, quiz shows, 
``sit-coms,'' or spy shows.
  In the process, children's programs with substance vanished, to be 
replaced, hour after hour, with crudely composed ``action'' cartoons, 
in which scarcely believable and primitively drawn comic book 
``heroes'' exposed children to eternities of violence, mayhem, and 
pointless fantasy.
  Expert television analysts assert that, by the time an American child 
reaches his or her late teens, commercial television has exposed that 
child to literally thousands of murders and other acts of violence, an 
exposure that predictably deadens that child to real-life violence and 
that overtly and subliminally teaches that violence, in itself, is an 
effective means of solving problems and getting one's own way in this 
world.
  Should we, then, be surprised that here in the inner-city 
neighborhoods of Washington, or in Baltimore or New York or other great 
urban centers--and even in our comfortable suburbs--children are 
literally murdering other children over the possession of sneakers, 
team jackets, or over real or imagined slights? After all, again and 
again without number, these child-murderers have witnessed the 
effective use of such solutions on commercial television, and a few 
weeks later, they had seen the same guy who gets shot or stabbed or 
pushed out the window or strangled with a copper wire on some other 
show in perfectly good health.
  From the beginning of the adulteration of television, thoughtful 
people have sought alternatives to the trash and vulgarity that have 
increasingly contaminated the airwaves of this miraculous medium of 
communication.
  [[Page S1340]] And, to the relief of millions of thoughtful 
Americans, in time, ``educational television'' laid the foundations for 
today's public broadcasting stations.
  As a result, as the public television network grew, children in our 
inner cities and in rural States like West Virginia and eastern 
Kentucky could be reached by television images that stretched their 
imaginations, taught them stores by great authors, exposed them to 
initial concepts in science and arithmetic, and challenged them with 
mainstream values such as telling the truth, respecting other children, 
obeying their parents, and becoming good citizens.
  At the same time, the Public Broadcasting System, the Corporation for 
Public Broadcasting, and National Public Radio increasingly filled the 
voids left by the commercial networks when they turned their backs on 
people in our society who crave good music, who hunger for good drama, 
who desire to hear and see good public debates on important questions 
of our time, who are eager for good documentaries, and who yearn for 
substance and challenge in their entertainment.
  Indeed, the Public Broadcasting System has evolved into a kind of 
cultural cutting edge--the pioneering network--that carved the 
frontiers and plowed the first fields that have proved the market that 
such operations as the Arts and Entertainment network, the Discovery, 
and Learning Channels, the History Channel, Bravo, and other 
increasingly culturally oriented systems are now exploiting.
  But even in these commendable enterprises, PBS has been the pioneer 
to which these new cultural channels must look for guidance. As welcome 
as their entry into the cultural scene is, so much of their offerings 
were first offered or grubstaked on public television.
  The lamentable truth is that, in commercial television, the bottom 
line is money, and until certain kinds of programming prove themselves, 
most commercial cable networks are unwilling to take risks on most 
types of programming--that is, until public television demonstrates the 
existence of a market for that kind of programming.
  Ken Burns' ``Civil War'' was an enormous gamble on which no one 
outside public television would have been willing to take a chance, 
until WETA made a leap of faith and underwrote a classic that will live 
for decades. Millions upon millions of Americans have seen ``The Civil 
War,'' and millions upon millions more will see it in coming 
generations. As a result, countless millions of Americans yet unborn 
will understand in ways previous impossible the significance and the 
scale of the greatest conflict in American history--a conflict that 
still defines us in many ways roughly 130 years later.
  Currently, the hunt dogs are baying at the heels of PBS and the 
public broadcasting network across our country.
  We are informed that PBS is too liberal, too radical, too un-
American, elitist, left-wing.
  Do these critics mean to say that William F. Buckley's ``Firing 
Line'' is an example of liberal programming?
  William Buckley has been appearing on ``Firing Line,'' a program 
produced admirably by South Carolina public broadcasting for years. 
Indeed, to follow William Buckley is to be disarmed by one of the most 
rational, intellectually charming, and persuasive conservative 
personalities in American history, a man who has exploited ``Firing 
Line'' brilliantly in a committed effort to force millions of Americans 
to rethink, or to think for the first time, the seminal principles of 
their own political, economic, and social positions.
  Or do the critics mean to include in their criticisms of the liberal 
and elitist descriptions of PBS the reruns of the ``Lawrence Welk 
Show,'' reproduced by Oklahoma public television, to the absolute 
delight of millions upon millions of Middle Aged and Older Americans 
who await each week the replay of some of the most beautiful music ever 
composed and performed in America?
  Or do they mean ``Wall Street Week,'' presided over by one of the 
most urbane and persuasive capitalists ever to advocate the free 
enterprise system anywhere and at any time?
  Or do those critics include among left-wing elitists the conservative 
Ben Wattenberg, whose weekly panels present a wide spectrum of 
challenging intellects, right and left, in a balanced discussion, in 
understandable terms, of some of the most arcane issues of our day?
  Or are we to assume that ``The Collectors,'' ``This Old House,'' 
``Cats and Dogs,'' concerts by the Boston Pops Orchestra, LeVar 
Burton's ``Reading Rainbow,'' or reruns of such classics as 
``Casablanca'' or Marlene Dietrich's ``Blue Angel'' are examples of 
elitist programming?
  Or what of ``Washington Week in Review'' which we see every Friday 
evening here in Washington, by tuning in at 8 o'clock?
  Year after year after year we watched Paul Duke, and we still watch 
``Washington Week in Review.'' It provides some of the most perceptive, 
thoughtful, and penetrating analysis available anywhere.
  To be sure, much on public television rankles me, as I am sure it 
rankles people who do not share my values and philosophy of life.
  But to stifle, shut down, starve, emasculate, or cripple our public 
broadcasting system, by denying it the seed money that guarantees its 
very survival in some of our most isolated rural communities, would be 
to kill one of the finest golden-egg-laying geese on the American 
cultural scene. To speak many truths is to risk making many enemies. 
Likewise, to speak many truths is to risk making many friends, as well. 
And because our public broadcasting system provides such a variety of 
truths, it can boast mobs of both friends and detractors.
  Mr. President, I hope that we will think long and sincerely before we 
punish, dismantle, or destroy one of the most valuable assets in our 
national cultural treasury, and risk reducing the Public Broadcasting 
System, the Corporation for Public Broadcasting, and National Public 
Radio to bad and ineffectual imitations of our commercial broadcasting 
networks, complete with underarm deodorant commercials and paeans to 
dog food and kitty litter.
  I yield the floor.
  [Disturbance in the visitors' gallery.]
  Mr. BYRD. Mr. President, may we have order in the Senate?
  The PRESIDING OFFICER. The Senator will suspend for just a moment.
  The gallery must not show approval or disapproval to actions on the 
floor of the Senate.
  The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I ask unanimous consent we set aside 
whatever the pending business is. Is there a pending amendment?
  The PRESIDING OFFICER. Amendment 191, The Senator's own amendment.
  Mr. BINGAMAN. I ask unanimous consent my own amendment be set aside 
temporarily, while I offer another amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 192

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

       The Senator from New Mexico [Mr. Bingaman] proposes an 
     amendment numbered 192.

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

       On page 25, add after line 25, the following new section:
       ``(4) Application to Requirements Relating to the Treatment 
     and Disposal of Radioactive Waste--
       Notwithstanding any provision of paragraph (c)(1)(B), it 
     shall always be in order to consider a bill, joint 
     resolution, amendment, or conference report if such provision 
     relates to a requirement for the treatment or disposal of--
       (A) high-level radioactive waste, low-level radioactive 
     waste, or spent nuclear fuel (as such terms are defined in 
     section 2 of the Nuclear Waste Policy Act of 1982 (42 U.S.C. 
     10101)); or
       (B) byproduct material or transuranic waste (as such terms 
     are defined in section 11 of the Atomic Energy Act of 1954, 
     (42 U.S.C. 2014)).''

  Mr. BINGAMAN. Mr. President, the amendment I am offering here is an 
amendment to exempt measures concerning the treatment and disposal of 
[[Page S1341]] nuclear waste from S. 1. It is my understanding that the 
agency primarily responsible for this issue is the Nuclear Regulatory 
Commission. It is one of the agencies that is not covered by title II 
of this legislation.
  This amendment I have offered here would have the effect of ensuring 
that both the NRC, the Nuclear Regulatory Commission, and the Congress 
can continue to have authority to take necessary action in this very 
important policy area. Without this amendment I have offered here, we 
are leaving the NRC with power to act in an area where it would also be 
out of order for this Congress itself to consider legislating. If a 
bill or an amendment is offered to increase the requirements to obtain 
a license under the Nuclear Regulatory Commission, that bill would be 
subject to a point of order. The NRC could do that by regulation 
without there being any objection raised.
  But if the Congress tried by statute to raise the requirements on a 
licensee under the authority of the Nuclear Regulatory Commission, that 
would be subject to a point of order. As the bill now stands, my 
amendment would correct that. I believe it is important to look at this 
issue in a historical context.
  Research on nuclear energy started without congressional approval and 
in fact in great secrecy, and only a few select Members of Congress 
were kept informed about the Manhattan project during World War II, 
even though a large amount of taxpayer money was being spent to build 
the facilities needed at Los Alamos in my own home State, in Hanford, 
and at Oak Ridge.
  Moving quickly to assert its control over the nuclear program, 
Congress passed the Atomic Energy Act of 1946, which created both the 
Atomic Energy Commission in the executive branch, which was charged 
with managing the program, and it created a Joint Committee on Atomic 
Energy within Congress to oversee and direct the program. Moreover, 
because private ownership was prohibited in the 1946 act, the Federal 
Government maintained absolute control over nuclear materials and 
facilities. Consequently, the prospect of the nuclear program being 
transitional to the civilian sector was very faint, and, therefore, 
Congress was enforced to enact legislation to develop the civilian 
nuclear power program in 1954 with the Atomic Energy Act of 1954.
  Because that act was extremely vague in its efforts to define safety 
considerations and in its overall regulatory program, the AEC, the 
Atomic Energy Commission, was responsible for promulgating safety 
regulations, and they had broad discretion. In fact, the U.S. Court of 
Appeals for the District of Columbia noted years later that the 1954 
act created--here is a quotation from one of their decisions:

       The 1954 act created a regulatory scheme which is virtually 
     unique in the degree to which broad responsibilities should 
     pose in the administrative agency.

  And it has a prescription in its charter as to how it shall proceed 
in achieving the statutory objectives. Mr. President, today that same 
very broad discretion resides in the regulatory agency.
  The initial administrative regulations parallel the 1954 act, and the 
two were very loose. Nuclear power has proven to be extremely complex 
and increasingly demanding. Nuclear power plants have grown larger and 
more sophisticated, and they are requiring capable safety systems and 
backups.
  Very simply stated, the more complex these nuclear power systems have 
become and plants have become, the more things can go wrong. As a 
result, nuclear regulation has had to keep pace with industry advances 
in order to protect the public health and safety. Recent accidents only 
serve to remind us of the potential of not maintaining close scrutiny 
of this industry. Chernobyl raised the awareness of Russia and Eastern 
Europe where dozens of unsafe plants exist that fall way below the 
Western safety standards that have been promulgated by our own Federal 
Government.
  Under the provisions of the pending unfunded mandates legislation, 
many of the valuable laws that were created specifically in response to 
the public health and safety concerns in this area would have been 
improper for consideration. For instance, the Low Level Radioactive 
Waste Policy Act could not have been considered by Congress absent the 
waiver of this unfunded mandates act. The low level waste act, passed 
in 1980, makes the States responsible for nuclear waste disposal; that 
is, waste that was generated within that particular State's borders. No 
Federal funding is provided in this program.
  Moreover, I must note that the National Governors Association 
requested this legislation. Indeed, the National Governors Association 
provided much input into it. Essentially, the Governors believed that 
the States were in a better position to select disposal sites within 
those States. Nonetheless, under S. 1, the low level waste program 
would come under the definition of a Federal mandate and would be 
subject to the requirements of title I of the bill.
  Additionally, in the Nuclear Waste Policy Amendments Act of 1987, we 
authorized the Office of Nuclear Waste Negotiator to find a State or an 
Indian tribe to host a permanent repository for a monitored, 
retrievable storage facility for nuclear waste.
  This legislation we are considering today could frustrate his efforts 
if he were successful in identifying a potential host for such a 
facility. In my home State of New Mexico we are seeing an effort to 
site a nuclear waste repository facility on tribal land. And I feel 
strongly that we in the Congress must preserve our ability to legislate 
and regulate in this area to protect public health and safety.
  The reasons for this amendment are self-evident. Although I believe 
that the Senate should always keep in mind the costs incurred by the 
private and the public sectors by any of its actions, I believe, as 
reporting committees apparently do, that in some areas of the law they 
are simply too important to create points of order against 
consideration of legislation. I further believe that the treatment and 
disposal of nuclear waste falls within that category.
  Clearly, we have a responsibility to act and exert national 
leadership in an area that could have a profound impact on the health 
and safety of the American people, and in the future we may very well 
be called on to do so. We need to be sure that we will be able to do so 
and that procedural roadblocks cannot be raised.
  For this reason, I urge my colleagues to adopt this important 
amendment. I understand that the managers of the bill are agreeable to 
a time limit for additional discussion of this bill prior to its being 
voted on.
  I am glad to yield the floor or yield to questions.
  Mr. GLENN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. GLENN. Mr. President, I think I understand what the Senator from 
New Mexico is trying to do, but I am not sure I understand exactly how 
this would work. I would like to clarify. Let me make a statement. Then 
I would ask the Senator from New Mexico to respond.
  If what the unfunded mandates bill is trying to do, of course, is to 
say where we are putting a mandate on a State, we will consider the 
costs up front, we will deal with those costs and either provide for it 
by passing those costs and saying, States you have to do it, or we 
would provide the money. That is the purpose of this, so we will not 
build up these huge bills and put all of these costs on the States 
occasioned by what we do here with legislation involving the States.
  It would appear to me that if we exempt the nuclear industry from 
this process, you would set up the possibility that, if the proposal, 
whatever it is, is exempted from the point of order, that you might 
find the Federal Government is just going back and saying, States do 
it, with no money or no consideration of money required up front or 
anything else.
  I cannot believe that is what the Senator from New Mexico would 
intend. Maybe I am wrong. But this would mean someplace like Hanford 
that has all the problems out there at Hanford in Washington, with all 
the problems of the so-called semiexplosive silos out there that we 
have been concerned about for a couple of decades now, and all the 
other problems from that area as well as some 17 major nuclear sites in 
the nuclear weapons complex in 11 different States, that we can in 
effect 
[[Page S1342]] say to those States, just take care of it. We put a 
mandate on you. You take care of it out there. Whether it is Hanford, 
or in my home State of Ohio, or wherever, we would just say, States, 
take care of it.
  I do not believe that the Senator from New Mexico intends that be the 
situation. But I would submit, if I understand the amendment correctly, 
that would be a possibility under this. It would seem to me that the 
States are better protected by saying we stay under this point of 
order, if it lies, and then say we have considered the cost up front 
and here is how we will take care of those costs and help the States 
comply with Federal law, which is what we do with other environmental 
concerns, not just nuclear, clean air, clean water, and everything that 
we provide mandates for around here.
  All these environmental mandates so far are the biggest thing under 
the unfunded mandates. What we set up is a point of order with regard 
to those where we either work out an arrangement where we share in the 
costs that we are imposing to accomplish that good end, or we say we 
are not going to do that up front. But we have to consider the costs up 
front on what our responsibilities are.
  It would seem to me that in the nuclear industry in particular, and 
particularly the nuclear weapons program, that we are still trying to 
recover from all those secrecies that went into effect during the cold 
war that let us build up huge stocks of material that now need to be 
taken out and disposed of someplace. I would not think that we would 
want to have that out from under the Government saving in the cost of 
doing that. Yet, if I read the amendment correctly, that is exactly 
what it is. Am I wrong in my understanding?
  Mr. BINGAMAN. Mr. President, let me respond to the question. I do 
think the Senator is wrong in his understanding.
  First of all, let me make clear, my amendment does not exempt 
anything from the reporting requirements. The reporting requirements in 
the bill, where you have to estimate the costs and estimate where the 
costs would fall, remain in place.
 Those have to be obtained before any legislation comes to the floor, 
and none of that is changed under my amendment.

  What my amendment does say, though, is that in this very important 
area related to treatment or disposal of nuclear waste, in that very 
important area, if the Federal Government determines that some action 
should take place, you cannot raise a point of order that says it is 
out of order to consider the legislation, absent full funding by the 
Federal Government. That is all my proposed amendment does.
  The Senator was saying this would open up the possibility of the 
Federal Government saying to the States: Washington State, you are 
responsible for Hanford.
  That possibility exists today. That possibility will exist in the 
future. Theoretically, we could do that at any point, just to the same 
extent we do it today. That is the way the Constitution set up our 
Federal system. So that possibility is always there for the Federal 
Government to step in and do that kind of a thing. Clearly, though, 
that is not consistent with the way this country has viewed 
responsibility, sharing the responsibility for nuclear power.
  Mr. GLENN. If the Senator will yield. I am not sure I understand yet 
what he is proposing, or if that is his interpretation, because the 
point of order is supposed to make certain that the Federal Government 
shares in the mandate they are sending to the State. If we do away with 
that point of order, and as your amendment says, ``notwithstanding any 
other provision,'' paragraph 1(b), ``it shall always be in order to 
consider a bill, joint resolution, amendment, or conference report, if 
it relates to the requirement for the treatment or disposal of,'' and 
it goes into radioactive waste and so on. That means a point of order 
would not lie dealing with nuclear waste or disposal. That means the 
States would have to pick up the bill. That is what we are trying to 
prevent, as there was too much in the past with clean air, clean water, 
and all the requirements we have put on the States without providing 
any Federal funding, if I understand this correctly.
  Mr. BINGAMAN. Let me try to respond using another example which I 
raised, I believe, a week ago to the Senator from Ohio and the Senator 
from Idaho both. That is a circumstance we have in my home State, where 
you have an Indian tribe negotiating now with various utilities to put 
in a nuclear waste repository, a monitored retrievable storage site. 
Under the legislation as drafted and as presented here to the Senate, 
any effort by the Congress to impose requirements on an Indian tribe 
with regard to the running of a site, the way that a facility such as 
that would be conducted, if those requirements added up to more than 
$50 million, it would be out of order for us to consider the 
legislation unless we paid for it.
  In my view, it should not be out of order for us to consider that 
legislation. In my view, that is exactly the kind of legislation we 
ought to be considering.
  Mr. GLENN. Mr. President, I respond to my friend that in a situation 
like that, where it obtains strictly to an Indian tribe that is trying 
to have some of this activity on their reservation, that should be 
brought up just like everything else, and the Senate, in considering 
that then would waive that requirement if it was appropriate in that 
case.
  Mr. BINGAMAN. Mr. President, let me clarify that I think maybe the 
disagreement here is--I have an instinctive reaction against putting 
language in law that says a point of order can be raised against 
consideration of any bill which meets the following requirements.
  It seems to me that it should not be out of order to consider 
legislation in an important field such as the treatment and disposal of 
nuclear waste. That is what the Congress was constituted to do, to 
consider that kind of legislation. And here we are about to pass 
legislation, the unfunded mandates act, which says that it is out of 
order for us to consider it. It strikes me that, at least in this area, 
where clearly there is a Federal interest, clearly there is a history 
of responsible Federal action --maybe not as responsible as some would 
like, but at least the main action that has taken place here has 
clearly been Federal--I believe it is appropriate for us to say to do 
the reports, but if you are going to legislate in this area, go ahead 
and bring that legislation to the floor and let the Senate dispose of 
it, either pass it or defeat it.
  Mr. GLENN. Let me address another concern I have here and that is 
this: This bill is designed to deal with Federal mandates imposed on 
other entities--State and local, whatever--to take care of those costs 
up front or say why we are not going to, and require the States or 
local communities to address what ever it is the proposal is we are 
making.
  It would seem to me that what you are addressing is something else. 
Where an Indian tribe on a reservation is initiating a plan on their 
own, that does not really have anything to do with what we are imposing 
from the Federal level, is that correct?
  Mr. BINGAMAN. No. Mr. President, let me respond that under the act as 
it now stands, as I understand it, the act does not apply to 
independent regulatory agencies. They are exempted from the unfunded 
mandates act.
  The Nuclear Regulatory Commission is such an independent regulatory 
agency and, therefore, the Nuclear Regulatory Commission can impose 
obligations on a tribe, on a local government, on a State, by 
regulation, and the cost of that can exceed $50 million, or whatever 
figure it has to exceed.
  What we are doing, though, in the legislation as it now stands, is we 
are saying although the Nuclear Regulatory Commission is vested with 
authority to impose those kinds of obligations, we are denying 
ourselves that authority. We in the Congress are denying ourselves that 
authority, and that strikes me as totally illogical. It strikes me that 
if we are going to have that authority vested in the Federal 
Government, clearly Congress should retain its ability to deal with 
this in a responsible way.
  Mr. KEMPTHORNE. Mr. President, the Senator from New Mexico stated 
that his amendment would in no way require anything other than the 
reporting requirements. They would still have to abide by the reporting 
requirements. The key point is that his 
[[Page S1343]] amendment would, again, disavow that a point of order 
could lie against the legislation.
  In this very, very important issue of nuclear storage facilities--for 
example, spent nuclear fuel rods--we know that we have a number of 
commercial sites all over the United States. We know that there are 
certain repositories. We know that there are certain States that may be 
receiving the spent *naval fuel, as is the case in Idaho. This sort of 
discussion, as you begin to get a flavor of it here, is exactly the 
sort of discussion that ought to take place on the floor of the Senate. 
So, again, this is another exclusion from the presumption that this 
legislation says we are in favor of State and local governments 
receiving the funds in order to carry out these Federal mandates. At 
any point, you can come and seek a waiver. It is a majority vote that 
would allow that waiver of the point of order at any point during the 
process.
  But I really believe that if we send this sort of a signal, you will 
find that States are saying: If you are not going to abide by this, if 
we do not have any likelihood that there will be Federal funds to carry 
these things out, it will continue to be an unfunded Federal mandate in 
the area of nuclear storage. For example, I do not think you will see 
any States that will want to step forward and say they would like to be 
considered as a possible solution for the long-range storage or 
disposition of nuclear material. I would not blame them.
  So, again, I just say let us not disavow the point of order. Let us 
allow not only the reporting requirements, the costs associated with 
that and the impact, but let us also have a discussion so that a point 
of order could lie and we would have this sort of discussion on the 
floor of the Senate instead of allowing the committee to have the 
jurisdiction to say we do not need to allow Congress to consider this 
any further.
  Mr. BINGAMAN. Mr. President, I ask the Senator from Idaho this: One 
concern I have had here is under the language of the bill which he is 
proposing to the Senate, we exempt independent regulatory agencies from 
the purview of the bill. So we are saying that if the Nuclear 
Regulatory Commission wishes to impose expensive, onerous requirements 
on a State, town or tribal government, to ensure safety in the handling 
of nuclear waste, that is fine.
 We have no objection. No point of order can be raised. And we are 
certainly not suggesting one in this bill.

  But Congress cannot do that. Congress cannot consider legislation to 
do that unless it is willing to waive a point of order. So we are 
essentially denying to the Congress the very powers that we are leaving 
in the independent regulatory agency at the Federal level.
  I have great difficulty understanding the logic of denying Congress 
the very authority which the Constitution gives it to this area and 
requiring somebody who comes to the Senate floor or some committee that 
reports legislation to the Senate floor requiring them to overcome a 
procedural hurdle before they can, in fact, have their proposed 
legislation considered on its merits.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I appreciate the arguments that were 
made by the Senator. But drawing the distinction with Congress, he is 
dealing with legislation. With a regulatory agency, you are dealing 
with regulations. It may be that that regulatory agency is then, 
through those regulations, carrying out the will of Congress as 
established in that legislation.
  Also, I know that Senator Roth, chairman of the Governmental Affairs 
Committee, will be holding hearings on regulatory relief to determine 
if, in fact, there are some areas in which we should be making 
modifications.
  But I do not believe that, by saying what the Senator may be 
describing as a problem with the regulatory process, we, therefore, 
should make sure that Congress also follows that same process.
  S. 1 is a process to give us accountability. Again, I believe that it 
will give us the information that we need up front, so that we can have 
these sort of meanings full discussion and not preclude that sort of 
discussion by agreeing to the Senator's amendment as proposed.
  Mr. BINGAMAN. Mr. President, I am beginning to doubt that I am going 
to persuade the sponsor of the bill of the merits of my amendment.
  But let me at least conclude by saying that again my amendment does 
not in any way take away the requirement that the information be 
obtained. It says the information must be obtained so that discussion 
can and should take place on the Senate floor. I just doubt the wisdom 
of us putting in a Federal statute that it is out of order for us to 
consider legislation dealing with the treatment and disposal of nuclear 
waste. It should not be out of order for us to consider that 
legislation. And a person who wants to consider legislation in that 
area should not have to come to the floor and overcome a procedural 
hurdle in order to have his proposed legislation considered on its 
merits.
  Mr. President, I yield the floor, or I am glad to respond if there is 
further discussion of the amendment.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I have the utmost respect for the 
Senator from New Mexico, and that is why I take very seriously his 
suggested amendment.
  But I believe, in that last statement, I say to the Senator from New 
Mexico, maybe there is a semantics problem. Because when the Senator 
says that he does not feel we should have some process that makes it 
out of order for Congress to be discussing potential legislation 
dealing with the nuclear issue, I agree with the Senator.
  But this process does not just automatically say it is out of order. 
It says, here are the steps you must follow and if you follow those 
steps as prescribed there is nothing that says you will be out of 
order. And you will be dealing with that very important issue of 
nuclear material or storage.
  If, however, you find that one of those steps is illogical, onerous, 
at that point, then you can come and seek a majority vote to say we 
agree with you. We now waive this point of order, but the Senator's 
amendment takes that away. It disavows the point of order, and that is 
my concern.
  Mr. BINGAMAN addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, just to make it clear, I am focused on 
the semantics and I think the Senator from Idaho is right. I am focused 
on line 16 and 17, page 21, where it says, ``It shall not be in order 
in the Senate to consider'' and then it goes on and says any bill or 
joint resolution, et cetera, et cetera, et cetera. That to me is not 
semantics. That is more than semantics to say ``it shall not be in 
order in the Senate to consider.''
  I think the whole purpose of the Congress in our Federal system is to 
consider legislation of this type dealing with major national issues. 
Treating and storage of nuclear waste is just one of those. But I 
consider that to be an area of concern peculiarly in the purview of the 
National Government.
  So I do think I have a concern when we pass legislation, as we are 
getting ready to do here, as I understand it, that says, ``It shall not 
be in order for the Senate to consider'' various pieces of legislation.
  So there is a basic disagreement. I think it is more than semantics. 
I think it is the language of the statute.
  Mr. President, I appreciate the chance to discuss it. I have another 
amendment. I know there is another Senator ready to offer an amendment.
  I yield the floor.
  Mr. KOHL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. KOHL. Mr. President, I ask unanimous consent the pending 
amendment be set aside for the purposes of offering my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 193

 (Purpose: To provide that any State, local, or tribal government that 
already complies with a new Federal intergovernmental mandate shall be 
        eligible to receive funds for the costs of the mandate)

  Mr. KOHL. Mr. President, I send an amendment to the desk and I ask 
that it be considered as offered for the purposes of the deadline 
tomorrow.
   [[Page S1344]] The PRESIDING OFFICER. The clerk will report
  The bill clerk read as follows:

       The Senator from Wisconsin [Mr. Kohl] proposes an amendment 
     numbered 193.

  Mr. KOHL. 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 title I, insert the following:
       Nothing in this Act shall preclude a State, local, or 
     tribal government that already complies with all or part of 
     the Federal intergovernmental mandates included in the bill, 
     joint resolution, amendment, motion, or conference report 
     from considerations for Federal funding for the cost of the 
     mandate, including the costs the State, local, or tribal 
     government is currently paying and any additional costs 
     necessary to meet the mandate.

  Mr. KOHL. Briefly, Mr. President, this amendment clarifies a possible 
problem in the bill that we are creating or will be creating a 
disincentive for States to take action. Some States may well decide to 
delay action on necessary and important measures in the hope that 
Congress passes a Federal law to do the same thing that they are 
considering doing and then provide some money to do it which otherwise 
would not be available. This amendment will ensure that States are not 
ineligible to receive funds if they are already meeting a Federal 
mandate under existing State law.
  We are going to be discussing this tomorrow. I am not asking that the 
amendment be accepted at this time, of course, but I wanted to present 
it. I think it is important that we not provide clear disincentives to 
States to do things environmental or with regard to health care or 
welfare reform or in any way. Should we be giving the States a message 
that we want them to just sit around and not do anything if they 
anticipate that down the road a Federal mandate may be passed that 
would provided the money for them to do it? It seems to me that is not 
what we are trying to accomplish here with this bill.
  My amendment simply indicates that States will not be ineligible to 
be considered for funding if, in fact, they are acting in a way that is 
progressive and that, if a mandate then is passed, they will be 
eligible to be considered for any money that they may have spent in 
complying with that mandate.
  Mr. KEMPTHORNE addressed the Chair.
  The PRESIDING OFFICER (Mr. Smith). The Senator from Idaho.
  Mr. KEMPTHORNE. Mr. President, I had some discussion with the Senator 
from Wisconsin about this, and I understand the intent and I appreciate 
the intent of this.
  It sounds to me like it may be an incentive for States to continue to 
be progressive and know that there may be ways of doing things in their 
particular State that do not apply to other States and they ought to 
proceed.
  I would like to have the opportunity later to have a meeting with the 
Senator from Wisconsin and with the Senator from Ohio and see if we 
could not work out some language that we could all agree to.
  Mr. KEMPTHORNE. Mr. President, again, I think the intent is very 
appropriate.
  Mr. KOHL. Mr. President, I thank the Senator. As the Senator from 
Idaho and I both know, we have been working together and will continue, 
I am sure, to work together along with Senator Glenn and Senator Roth, 
Senator Exon, to find language that clarifies the purpose and that 
satisfies all of our needs. I simply want to bring that to the floor. I 
appreciate your consideration and willingness to work with me on this.
  Mr. KEMPTHORNE. I thank the Senator from Wisconsin. 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. PELL. 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. CRAIG. Mr. President, I ask unanimous consent to proceed as if in 
morning business for a period 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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