[Congressional Record Volume 141, Number 13 (Monday, January 23, 1995)]
[Senate]
[Pages S1351-S1356]
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. 195

              (Purpose: To propose a substitute amendment)

  Mr. GLENN. Mr. President, I send an amendment to the desk and ask for 
its immediate consideration.
  The PRESIDING OFFICER. Without objection, the pending being 
amendments will be set aside.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Ohio [Mr. Glenn] proposes an amendment 
     numbered 195.

  Mr. GLENN. Mr. President, I ask unanimous consent that reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  (Mr. INHOFE assumed the chair.)
  Mr. GLENN. Mr. President, this amendment--and I do not want to scare 
anybody who may be watching and listening to this and I will give my 
reasons for submitting this amendment--this amendment is the old S. 993 
that we brought out last year. I wanted 
[[Page S1352]] it to be on file and be available to be considered if we 
reach a point where that might be necessary. But I hasten to add 
immediately that, at least the way we are going right now, I do not 
think that will be necessary.
  The situation we had gotten into here on the floor last week was 
such--and I will not go through all of what led up to it, but it was at 
a point where the majority leader filed cloture and did not have the 
votes to invoke cloture. There were some 117 amendments that had been 
put in from both sides of the aisle--mainly, about two to one, from the 
Democratic side, but from both sides of the aisle--and we found 
ourselves in a situation where it looked as though there might not be 
any move out of that parliamentary situation that we were in.
  What would we do in that situation? What had happened was that S. 993 
that came out last year with approval by the big seven, and we were 
happy to get it to the floor, but the situation that developed was we 
could not get it through last year.
  Over the holidays, with the changed political climate, it was 
determined that what the House was liable to do and the movement that 
we would have to make toward what the House might do to enable a Senate 
bill to have a chance at passage meant that S. 993 should be amended or 
changed and somewhat toughened up. Now that was done with S. 1, using 
S. 993 as the basic structure from which to start.
  The situation we found ourselves in, though, last week, the 
parliamentary situation, was that I could see the possibility that 
maybe nothing was going to move. S. 1 had generated some opposition for 
various reasons. Cloture, which was filed, could not be invoked. We had 
the vote on that. And there we sat in basically a stalemate.
  I am committed to getting through unfunded mandate legislation. I do 
not want anyone to think that I am not.
  But I would rather, if we got ourselves into another quagmire like 
that, I just want S. 993 refiled as a potential amendment--and I say 
potential; I am not planning to bring it up--but I want it filed so 
that if we reach another situation like that--and I hope we do not--
that we would have that as a fallback position which would be better 
than getting nothing through; certainly much better, because we all 
viewed S. 993 last year as being fine legislation.
  I understand where the Governors and the County Commissioners, 
mayors, and so on are coming from now in support of S. 1. It is tougher 
from their standpoint. But it also has some opposition.
  Now, what would I foresee as a situation that might develop where we 
might want to drop back? Obviously, there are a number of different 
things that could happen on that. If we wound up with a filibuster on 
S. 1, which I do not anticipate we will, but if there were some 
provisions voted in here on the Senate floor that may be unpalatable, 
then we might have something like that required.
  The amendment that I am putting in or will put in today and another 
one after this one and probably a couple more tomorrow morning address 
very substantive changes in the bill, procedures in the bill that I 
think should be corrected. They were things we were not able to bring 
up in the committee because of the rush to get it to the floor, which 
was another situation we talked about earlier today for a little while.
  But you have several other concerns that do address specifically how 
this bill would operate, and I think those are important things to be 
considered. Those are not show stoppers, as I see it. Failure to put 
those things in are not basically things that would require us to go 
back to S. 993.
  But let me just bring up some of the amendments that have been put in 
or proposed, some from the other side, as a matter of fact, some 
Republican-proposed amendments, such as judicial review.
  Now, I think if judicial review was lodged against this where anyone 
who felt that the estimate on a particular proposal was not adequate 
and they would have the right in that case to file a case in Federal 
court and in effect stop legislation in its tracks, if judicial review 
was put in and passed, to me would be a way of stopping almost all 
legislation or a very high percentage of legislation that comes before 
the Senate. So I think if judicial review came in, was voted in here, 
this would result in such concern that I think--I am the last one that 
is going to threaten a filibuster--but I think that would cause a 
great, great deal of concern.
  Now, another one that is coming up that would be very controversial, 
and I understand is going to be called up, were amendments that were 
proposed dealing with motor-voter, as it is called. There is a lot of 
passion involved with motor-voter, as we know from the very extended 
debate that took place on the Senate floor when motor-voter was put in 
last year. That would draw serious opposition.
  Another one, a supermajority point of order requiring a 60-vote point 
of order. In other words, 60 votes would be required to grant a waiver 
to proceed with a bill. Now that sounds great, because it says, well, 
you are getting a supermajority of the Senate. But it does something 
else. It puts a great deal of power in the minority if you can garner 
41 votes.
  I do not want to see us get into a situation where we would have, in 
effect, a tyranny of the minority.
  We had another one that would be a very, very important amendment, if 
brought up and if possibly passed, one that we would have to really 
take very, very seriously, and that is an amendment that I understand 
may be proposed which would extend the application of the act to past 
mandates as well as current mandates.
 If we did that, I do not know whether we would be getting into 
trillion dollar estimates and funding requirements if we passed that 
with no sorts of other restrictions on it than those I am aware of at 
this time. That is another one that would be a real threat to passage 
of this bill.

  Now, I am not saying any one of these by itself would be a complete 
show stopper and block to passage of the bill. The reason I put S. 993 
back in is to cover a combination of possibilities. Say that some of 
the corrections we wanted to put in committee are voted down here, and 
say that some of these amendments that I understand are going to be put 
in--I do not believe they have been put in yet--amendments on the 
Republican side that deal with the things that I just mentioned such as 
60-vote point of order and the motor-voter and judicial review and the 
retroactivity. Say that several of these things passed. I think in that 
situation the view of S. 1 would change rather dramatically, and I 
might add, probably on the Republican side as well as on the Democratic 
side.
  I wanted to point out the possibilities just to point out the reason 
why I am putting S. 993 back in, as a possible substitute amendment. It 
would be a fallback in case we have some of the dire things I have 
talked about happen, and got into a situation here we could not get out 
of, which we thought we were in last week when I mentioned the 
possibility of this. I am putting it back in, but do not plan to bring 
it up at this time.
  I think we are in a whole different situation than we were in last 
week because last week we were faced with a situation where cloture 
could not be invoked. The votes were not there. There were great 
concerns about S. 1. There were some 117 amendments that were filed in 
advance of the cloture vote, because if cloture would happen to be 
invoked then amendments cannot be put in. Cloture was defeated. The 
number of provisions we debated last week have been stripped back. We 
have now under the new agreement, some 60 slots, I believe, 58 or 60 
slots, available for amendments that have to be filed by Tuesday 
afternoon at 3:00. Votes, then, will start not later than 4 o'clock 
tomorrow afternoon.
  This is much more manageable now. People have been coming to the 
floor and offering their amendments. We will have votes on them. We are 
in a whole different situation. I am not putting S. 993 back in as any 
scare tactic but there are possibilities that loom out here that this 
would be a last-gasp stopgap measure we could put in if really 
necessary. I want to stress that. I know there was a considerable 
amount of discontent in some quarters last week when I even brought 
this up. I wanted to make sure it was not misunderstood now.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
   [[Page S1353]] Mr. KEMPTHORNE. I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Unanimous-consent Agreements

                           Amendment No. 179

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that it be in 
order to order the yeas and nays on the Dorgan amendment numbered 179.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. Mr. President, I now ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.


                      Amendments Nos. 178 and 179

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that no 
amendments be in order to either the Dorgan amendment numbered 178 or 
179, and that the vote occur on the motion to table amendment numbered 
178 at 4 o'clock p.m. tomorrow, to be followed by a vote on or in 
relation to the Dorgan amendment numbered 179.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Amendments Nos. 191 and 192

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that it be in 
order for me to make a motion to table both Bingaman amendments 
numbered 191 and 192, and I be able for ask for the yeas and nays, and 
it be done with one show of seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. I move to table amendments 191 and 192 and 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. KEMPTHORNE. Mr. President, I now ask unanimous consent that no 
amendments be in order to either Bingaman amendments prior to the vote 
on the motion to table and that the two Bingaman votes occur in 
sequence following the vote with respect to the second Dorgan 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 182

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that no 
amendments to the Hollings amendment numbered 182 be in order prior to 
the vote on the motion to available that amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Amendment No. 196 to Amendment No. 190

         (Purpose: To modify the sense-of-the-Senate provision)

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that the 
Senate now resume consideration of amendment numbered 190, and I send 
an amendment to the desk to the Harkin amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The legislative clerk read as follows:

       The Senator from Idaho [Mr. Kempthorne] proposes amendment 
     numbered 196 to amendment numbered 190.

  Mr. KEMPTHORNE. 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:

       The amendment is as follows:
       Strike all after the word ``that'' and insert the 
     following:
       (1) social security is supported by taxes deducted from 
     workers' earnings and matching deductions from their 
     employers that are deposited into independent trust funds;
       (2) over 42,000,000 Americans, including over 3,000,000 
     children and 5,000,000 disabled workers and their families, 
     receive social security benefits;
       (3) social security is the only pension program for 60 
     percent of older Americans;
       (4) almost 60 percent of older beneficiaries depend on 
     social security for at least half of their income and 25 
     percent depend on social security for at least 90 percent of 
     their income;
       (5) 138,000,000 American workers pay taxes into the social 
     security system;
       (6) social security is currently a self-financed program 
     that is not contributing to the Federal budget deficit; in 
     fact, the social security trust funds now have over 
     $400,000,000,000 in reserves and that surplus will increase 
     during fiscal year 1995 alone by an additional 
     $70,000,000,000;
       (7) these current reserves will be necessary to pay monthly 
     benefits for current and future beneficiaries when the annual 
     surpluses turn to deficits after 2018;
       (8) recognizing that social security is currently a self-
     financed program, Congress in 1990 established a ``firewall'' 
     to prevent a raid on the social security trust funds;
       (9) raiding the social security trust funds would further 
     undermine confidence in the system among younger workers;
       (10) the American people overwhelmingly reject arbitrary 
     cuts in social security benefits; and
       (11) social security beneficiaries throughout the nation 
     deserve to be reassured that their benefits will not be 
     subject to cuts and their social security payroll taxes will 
     not be increased as a result of legislation to implement a 
     balanced budget amendment to the United States Constitution.
       (b) Sense of the Senate.--It is the sense of the Senate 
     that any legislation required to implement a balanced budget 
     amendment to the United States Constitution shall 
     specifically prevent social security benefits from being 
     reduced or social security taxes from being increased to meet 
     the balanced budget requirement.

  Mr. KEMPTHORNE. Mr. President, I ask for the yeas and nays on the 
second-degree amendment.
  The PRESIDING OFFICER. Is there sufficient second? There is a 
sufficient second.
  The yeas and nays were ordered.
  Mr. KEMPTHORNE. Mr. President, I yield the floor.


                           Amendment No. 197

   (Purpose: To have the point of order lie at only two stages: (1) 
  against the bill or joint resolution, as amended, just before final 
passage, and (2) against the bill or joint resolution as recommended by 
conference, if different from the bill or joint resolution as passed by 
                              the Senate)

  Mr. GLENN. Mr. President, I ask unanimous consent that the previous 
amendment be set aside, and that I send to the desk an amendment and 
ask for its immediate consideration.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will report.
  The legislative clerk read as follows:

       The Senator from Ohio [Mr. Glenn] proposes an amendment 
     numbered 197.

  Mr. GLENN. 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:

       On page 2, strike beginning with line 16 through line 4 on 
     page 22 and insert the following:
       ``(1) In general.--
       ``(A) Statement required for reported bill.--It shall not 
     be in order in the Senate, after third reading or at any 
     other time when no further amendments are in order, to 
     consider any bill or joint resolution that is reported by a 
     committee unless the committee has published a statement of 
     the Director on the direct costs of Federal mandates in 
     accordance with subsection (a)(6) before such consideration.
       ``(B) Legislation or threshold.--(i) It shall not be in 
     order in the Senate to consider any bill, joint resolution, 
     amendment, motion, or conference report--
       ``(I) after third reading or at any other time when no 
     further amendments are in order, if the enactment of such 
     bill or resolution as amended; or
       ``(II) if such bill or resolution in the form recommended 
     by such conference report differs from the bill or resolution 
     as passed by the Senate, and if the enactment of such bill or 
     resolution in the form recommended in such conference report, 
     would increase the direct costs of Federal intergovernmental 
     mandates by an amount that causes the thresholds specified in 
     subsection (b)(1)(A)(i) to be exceeded, unless the conditions 
     specified in clause (ii) as satisfied.
       ``(ii) The conditions referred to in clause (i) shall be 
     satisfied if--

     Redesignate the clauses following accordingly.''

  Mr. GLENN. Mr. President, this takes care of what I think is a 
difficulty in the bill. It would correct what I think is something we 
probably should have dealt with earlier on. That is this: The bill 
deals with points of order and when they will lie against legislation 
coming to the floor, to have the overall expense or the cost to the 
States and local communities considered in advance of considering the 
legislation and whether Congress will fund those costs.
  As now crafted, as now structured, the bill would permit a point of 
order when the bill with Federal intergovernmental mandates first comes 
to the floor. Then there would be no more points of order that would 
lie against the bill but there could be points of 
[[Page S1354]] order invoked any amendment that may or may not contain 
an intergovernmental mandate. If we think about how a bill normally 
works its way through the Senate, a number of amendments can be brought 
up here on the Senate floor. They may well change completely the nature 
of the bill by the amendments and the cost of amendments that are 
incurred during the amending process here on the floor.
  Now, I think it would be more appropriate the bill be subject to a 
point of order after we know what all the amending process has done to 
it. To have the point of order apply to possibly every amendment all 
the way through creates a situation that could be used if a Senator 
really wanted to filibuster something. He or she could put in a dozen 
different amendments containing Federal intergovernmental mandates, 
each maybe over $50 million, that might not even apply and might not be 
germane or relevant to the bill being considered and would then go 
through all the process of point of order on everything that was 
brought up in each of the amendments. I could see this as a possibility 
of a means of really creating a lot of delay.
  What we are really interested in, it seems to me, is the final bill 
as amended on the floor before we vote on it. And at that point, we 
either say yes, we go ahead with these unfunded mandates because it is 
important for everybody in the whole country for whatever reason and 
therefore we waive the point of order. Or we say no, all these total of 
amendments here plus what the cost of the original bill should be 
subject to the points of order requiring cost estimates and funding.
  It seems to me that is a more appropriate way to go than having the 
point of order lie on all amendments.
  Mr. President, my amendment would apply the points of order in two 
places, not at the start of consideration on the floor as S. 1 
requires, but it would apply at the end of consideration of legislation 
on the floor--just prior to third reading--and, at a second point, when 
it comes back from conference, because when it comes back from 
conference, sometimes it might be a completely changed bill from what 
went to conference with the approval of the Senate.
  So my amendment would apply points of order at those two places. As I 
said, my concern in applying the point of order requirements for CBO 
cost estimates and State and local funding of floor amendments, as S. 1 
currently does, is that it may unnecessarily bog down the legislative 
process, particularly for the first year or two when this act goes into 
effect. It is possible someone might raise points of order, as I said, 
on almost every amendment that is offered to any one bill.
  I understand points of order can currently be raised under the Budget 
Act on amendments that affect Federal direct spending but have not been 
scored by CBO. However, the Budget Act scoring process has been in 
place for some time and the procedures in S. 1, on the other hand, are 
brand new. So we should not overload the Senate with these new 
procedural requirements on floor amendments, as I see it.
  As I said, the amendment would see that the points of order lie in 
two places: First, just prior to final passage and then on the 
conference report. That way, only amendments that have been adopted 
would have to be scored by CBO, rather than having them score all 
amendments prior to their being offered, as would have to be done under 
S. 1. So the burden on CBO might be reduced. Only amendments adopted 
would be required to be scored, not amendments offered. Of course, 
Members bringing an amendment to the floor may wish to have a CBO cost 
estimate in order to know precisely what the effect of the amendment 
will be. My amendment will ensure conference reports will also still be 
scored, as is the case under S. 1.
  Mr. President, I yield the floor and 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. KEMPTHORNE. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
                      Unanimous-consent Agreement

  Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that at 3:30 
p.m. tomorrow, the Senate resume consideration of amendment No. 182, 
the Hollings amendment; that there be 30 minutes for debate prior to a 
motion to table, to be equally divided between Senators Hollings and 
Domenici; that following that debate, it be in order for the majority 
manager, or his designee, to move to table the Hollings amendment; and 
that the vote occur on the motion to table immediately following the 
disposition of the Bingaman amendment No. 192.
  Mr. GLENN. Mr. President, reserving the right to object, and I will 
not, where is the Bingaman amendment in the hierarchy now? Is that No. 
4 that we have on our list?
  Mr. KEMPTHORNE. Mr. President, that is correct. This will be No. 5.
  Mr. GLENN. I will not object.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KEMPTHORNE. I yield the floor.
  I thank the Chair.
  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. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 198

(Purpose: To modify the exemption for matter within the jurisdiction of 
                   the Committees on Appropriations)

  Mr. McCAIN. Mr. President, I ask unanimous consent that the pending 
amendment be temporarily laid aside so that I may send an amendment to 
the desk and ask it be considered as offered as required under the 
unanimous consent agreement under which the Senate is currently 
operating.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Arizona [Mr. McCain] proposes an amendment 
     numbered 198.

  Mr. McCAIN. 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, strike lines 7 through 10, and insert the 
     following:
       (3) Committee on Appropriations.--Paragraph (1)--
       (A) shall not apply to any bill or resolution reported by 
     the Committee on Appropriations of the Senate or the House of 
     Representatives; but
       (B) shall apply to--
       (i) Any legislative provision increasing direct costs of a 
     federal intergovernmental mandate contained in any bill or 
     resolution reported by such Committee;
       (ii) any legislative provision increasing direct costs of a 
     federal intergovernmental mandate contained in any amendment 
     offered to a bill or resolution reported by such Committee;
       (iii) any legislative provision increasing direct costs of 
     a federal intergovernmental mandate in a conference report 
     accompanying a bill or resolution reported by such Committee; 
     and
       (iv) any legislative provision increasing direct costs of a 
     federal intergovernmental mandate contained in any amendments 
     in disagreement between the two Houses to any bill or 
     resolution reported by such Committee.
       (C) Upon a point of order being made by any Senator against 
     any provision listed in Paragraph (3)(B), and the point of 
     order being sustained by the Chair, such specific provision 
     shall be deemed stricken from the bill, resolution, 
     amendment, amendment in disagreement, or conference report 
     and may not be offered as an amendment from the floor.

  Mr. McCAIN. Mr. President, this amendment is very basic. It would 
extend a provision of the Unfunded Mandate Reform Act to cover 
appropriations bills. As reported by the Governmental Affairs 
Committee, appropriations legislation was exempted from S. 1. I wish to 
repeat, appropriations legislation was exempted from this legislation.
  This amendment would establish that any legislative provisions 
contained in an appropriations bill or conference report that create an 
unfunded mandate would also be subject to the point of order called for 
by this bill.
  Clearly, Mr. President, this important legislation sponsored by 
Senator Kempthorne is a proposal that warrants swift passage. Over the 
last year, 
[[Page S1355]] every Member of Congress has likely heard pleas for 
assistance from State and local officials in their home States for 
relief from the steadily increasing burdens of unfunded Federal 
mandates, and understandably so.
  As the Governmental Affairs Committee noted in a report on this 
issue, State and local officials from across the country sent a 
powerful and unified message to Washington that:

       * * * unfunded Federal mandates imposed unreasonable fiscal 
     burdens on their budgets; limited their flexibility to 
     address more pressing local problems; forced local tax 
     increases and service cutbacks; discouraged innovation at a 
     local level; and hampered their ability to effectively 
     govern.

  The burdens which have been placed on the shoulders of States, 
cities, and counties in America have become intolerable. The CBO 
estimated the cumulative costs of Federal regulatory mandates on States 
over a 7-year period are as high as $12 billion.
  A study released by the Environmental Protection Agency in 1990 
estimated that the total annual costs of environmental mandates to 
State and local governments would rise a total of 67 percent by the 
year 2000.
  The mayor of one of America's largest cities said that:

       When you pass a mandate down to us and we have to pay for 
     it, the police force goes down, the firefighting force goes 
     down. Recreation departments are in disrepair * * * because 
     our capital budget is being sopped up by * * * the need to 
     pay for federal mandates.

  I strongly sympathize with these views and those that I have heard 
from so many city and town officials in my State of Arizona. The 
cumulative weight of the involuntary spending requirements that the 
Congress has been foisting upon State and local governments has finally 
reached the breaking point, and it is important that we pass this 
legislation to address the problem early in the 104th Congress.
  There is, however, a significant omission in the bill we have before 
us. S. 1 applies only to legislation emanating from authorizing 
committees, and exempts appropriations bills. This is a big loophole, 
Mr. President, and given the tendencies of many Members of Congress, I 
fear it is a loophole that will be taken advantage of in short order.
  If we exempt appropriations bills from the point of order procedure 
of this unfunded mandates bill, we will be tacitly allowing a process 
where Members will be tempted or pressured into using appropriations 
bills as vehicles to levy mandates upon State and local governments. 
Such an exemption would undermine the important objectives of what S. 1 
is so admirably trying to achieve. This amendment to subject any 
legislative language in spending bills to a majority point of order 
regarding unfunded mandates will help ensure that doesn't happen.
  The intent and impact of this amendment is simple, straightforward, 
and entirely reasonable, Mr. President. If a bill reported out of the 
Environment and Public Works Committee or the Labor Committee which 
creates a new mandate on State or local governments, those committees 
are required to authorize funding to pay for it. A point of order would 
lie against the bill if it were not properly funded. Surely we should 
establish this same procedural hurdle for appropriations bills if they 
contain new unfunded mandates.
  I fully recognize, Mr. President, that existing Senate rules already 
bar appropriations bills from being used as vehicles for 
authorizations. If this restriction was uniformly adhered to, 
appropriations bills would only factor into concerns about unfunded 
mandates to the degree that they were adequately delivering Federal 
funds to State and local governments.
  As all of my colleagues well know, however, this is often not the 
case. Appropriations bills can and have been used by the Senate for 
legislative purposes. This fact necessitates the amendment I am 
proposing here today.
  It is surely not an unwarranted leap of faith, Mr. President, to 
anticipate that Members and staff in the Congress might be tempted to 
utilize appropriations bills as a vehicle for unfunded mandates in the 
future. Minds far sharper and more creative than my own could craft 
language into an appropriations bill that in effect would impose a new 
unfunded mandate on a State, local, or tribal government.
  Indeed, Mr. President, if past experience on legislative language 
being inserted in appropriations bills is a guide, we should expect 
this to happen. I am concerned that exempting appropriations measures 
from S. 1 will be akin to locking the barn door while leaving a ground-
floor window wide open. This exemption is a loophole that will surely 
prove too tempting for enterprising Members of Congress to leave 
untested, and we should act to close it before they do.
  Furthermore, for my colleagues who may question whether this 
amendment is necessary, I would like to note the dilemma we already 
face in the case of appropriations legislation passed by the House of 
Representatives. According to Senate precedent, appropriations bills 
containing legislative language sent over from the House is deemed 
germane, and is not subject to a point of order.
  We already experience problems with exceptions being made to the 
Senate rule that prohibits legislative language on an appropriations 
bill, so I hope we will not exacerbate this situation by creating a 
special new exemption for appropriations bills regarding unfunded 
mandates. Let us not miss this historic opportunity to stem the tide of 
oppressive Federal mandates by allowing them to be imposed by way of 
appropriations bills or conference reports.
  Mr. President, if the basic rules of the Senate are followed and 
appropriations measures contain no new unfunded mandates, then this 
amendment would not affect them in any way. We should improve this 
important bill to curb the Congress's penchant for passing on millions 
of dollars of mandatory spending requirements onto States and local 
governments by adopting this amendment. To leave appropriations 
legislation exempted from the provisions of S. 1 is to leave a sizable 
loophole in the bill, and I urge my colleagues to support this 
amendment to remedy it.
  I again thank my friend from Idaho who has probably had enough praise 
over the last week to last him for a long period of time, but he 
deserves every bit of it. I must say he has done a magnificent job. But 
I also point out to my friend from Idaho and remind him that when I 
asked him why were appropriations bills exempted from this bill 
language, his response was, ``Well, we could not get the bill passed.''
  Then my question is, to him and to the other sponsors of this bill: 
Why is it, then, if we are not concerned about legislation being 
enacted on an appropriations bill and it not being subject to a point 
of order, then why should there be any objection whatsoever to this 
amendment? It seems to me by the very act of exempting appropriations 
bill from this point of order procedure we are tacitly saying we do not 
want to tangle with the Appropriations Committee and we do not want to 
make sure that there is not a loophole in this legislation by allowing 
legislation on appropriations bills.
  I also say to the sponsors of this bill, if you do not think we have 
legislated on appropriations bills then I have a lot of legislation to 
show you. We have. It has happened time and time again where 
appropriations bills have been the vehicles for authorizing legislation 
which are stuffed into bills, many times in the dead of night, or in a 
conference committee, a conference between the two Houses so the rest 
of us who are not Members of that conference are unable to know about 
it.
  This is a very serious issue. And I have to say after my 9th year, if 
I have grown a little bit cynical it is because I think I have reason 
to be so. We cannot allow authorization on appropriations bills. If we 
do not allow it then this amendment should cause no problem for anyone. 
The only reason you can assume why this bill exempted appropriations 
bills is because of the possibility in the future of authorizing 
legislation on appropriations bills.
  I think I have made my point. There may be a desire to engage in 
extended debate on this issue. I do not intend to leave a loophole of 
this size in this unfunded mandates bill, which is a very critical 
bill, and then go back to the people I represent and say everything is 
fine. Because it is not going to be fine if we allow people to 
authorize on an appropriations bill and not be subject to the same 
point of order that there is on the authorizing legislation.
   [[Page S1356]] I again thank Senator Kempthorne for his outstanding 
work on this very important and critical piece of legislation. If I 
could just tell him, I met with the mayors of my State a couple of 
months ago, I met with the county supervisors of my State, and there 
was one issue and one issue only they wanted to talk about and that was 
Senator Kempthorne's legislation. So he is even famous in the State of 
Arizona as well as the State of Idaho.
  So I thank my friend from Idaho and I yield the floor.
  Mr. KEMPTHORNE. Mr. President, I just wish to thank the Senator from 
Arizona for his kind remarks and also to acknowledge his strong and 
enthusiastic support to curb these unfunded Federal mandates. He is one 
of the stalwarts in this effort. So I thank him.
  Mr. DASCHLE addressed the Chair.
  The PRESIDING OFFICER. The Senator from South Dakota is recognized.
  Mr. DASCHLE. Mr. President, I would like to use my leader time, if I 
could.
  The PRESIDING OFFICER. The Senator is recognized.
  

                          ____________________