[Congressional Record Volume 141, Number 15 (Wednesday, January 25, 1995)]
[Senate]
[Pages S1525-S1531]
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. 198
Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that when the
Senate considers amendment numbered 198, that there be 20 minutes for
debate to be equally divided in the usual form, that there be no
second-degree amendments in order, and that following the conclusion or
yielding back of time, the Senate vote on the McCain amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KEMPTHORNE. I yield the floor.
Mr. McCAIN. Mr. President, I thank both my friend from Idaho and the
Senator from Michigan for their cooperation on this amendment. I
believe it is an important amendment. I talked about it at length
yesterday, Mr. President, and I know there is significant pending
business before the Senate. I believe we now still have about 30 more
amendments to consider, so I would be more than happy to yield back the
balance of my time if that is acceptable to both managers of the bill.
Mr. President, I ask unanimous consent to request if the Senator from
Michigan or the Senator from Idaho have any further discussion on this
amendment?
Mr. LEVIN. Mr. President, I wonder if my friend from Arizona would
yield for a question.
Mr. McCAIN. I would be glad to yield.
Mr. LEVIN. A question has arisen as to whether the words ``any
legislative provision'' on line 7 of his amendment are intended to
mean, in effect, authorizing language.
Mr. McCAIN. It clearly means any authorizing language.
Mr. LEVIN. I thank the Senator from Arizona. My understanding is that
the manager on this side supports the amendment. I understand that
Senator Byrd is supportive of the amendment, and I would be happy to
yield back any time that I might control.
Mr. McCAIN. I yield back the balance of my time.
The PRESIDING OFFICER. All time is yielded back. The question is
agreeing to the amendment.
So the amendment, No. 198, was agreed to.
Mr. KEMPTHORNE. I move to reconsider the vote by which the amendment
was agreed to.
Mr. LEVIN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. KEMPTHORNE. Mr. President, I want to thank the Senator from
Arizona for his efforts and his diligence in that. I think it is a
particularly important amendment that he has offered. I appreciate the
manager on the other side of the aisle and his support on this.
Mr. LEVIN. Mr. President, on Monday night I had a lengthy colloquy
with the managers, the principal sponsors of the bill, the Senators
from Idaho and Ohio. A number of important questions were left
unanswered. In some cases, the answers were conflicted. Those questions
concern issues that are central to the way this bill will work. They
need to be answered, I believe, before we conclude our work on this
legislation.
These are the questions which I have, and I have given a copy of
these questions to my friend from Idaho. I want to read them, put them
in the Record, in effect, and ask they be answered by tomorrow at some
point. I am not seeking an answer, one-by-one at this point, because
they take some time, I would think, to attempt to answer, if, in fact,
they can be answered.
Here are the ones that we had left outstanding. First, the effective
date of the mandates. When is a mandate effective? That is an
absolutely critical issue because that date sets off a 5-year time
period and if during any one of those 5 years there is an estimate that
the cost of the mandate is over $50 million, certain very significant
things are triggered.
So it is critical to know when is a mandate effective, and we had a
long discussion on that on Monday night with a chart.
If that is determined on a case-by-case basis, then who makes that
decision and when is that decision made?
The second group of questions relates to the question of whether an
estimate can be given in the form of a range; could an estimate be that
that will cost from $20 million to $80 million a year, or any other
range? And here the questions are as follows:
Can the CBO estimate be in the form of a range?
[[Page S1526]] Can it be in the form of a range for the purpose of
the threshold?
Can it be in the form of a range for purposes of the total cost
estimate?
If the CBO reports a range, what is the ``specific dollar amount''
for purposes of the point of order? And who makes that decision?
Then there are a series of questions that relate to amendments and
their coverage under this bill.
First, are the direct costs of an amendment, added to a bill in
committee, to be included in the estimate of direct costs of the bill
as reported?
What if the Senate rejects the committee amendment? For instance, let
us say a bill is estimated to cost $30 million a year for each of the 5
fiscal years, so it is not over the threshold. But there is a committee
amendment that has been adopted in committee that adds another $30
million a year to the bill.
If the $30 million committee amendment is added to the $30 million
cost to the bill that was taken up by committee, that would put it over
the $50 million and breach the threshold and the bill would not be in
order to even be considered by the Senate. But is the committee
amendment cost to be included in the cost of the bill before it is
adopted by the Senate? It is technically not part of the bill until the
Senate adopts it, even though the committee has adopted it.
If it is included in the bill, what happens if the Senate rejects the
committee amendment?
Is an amendment offered on the floor subject to a point of order
based on the estimate of direct costs of the amendment alone, or the
amendment if added to the bill?
Is an amendment offered on the floor out of order if it does not have
a CBO estimate of direct cost?
Then there are some questions relating to the exclusions:
Who will decide whether a bill is subject to one of the exclusions?
We have a number of exclusions here and there are always going to be
questions of interpretation as to whether or not an exclusion applies.
Who will decide that?
What will specifically be required to meet the terms of the bill with
respect to a finding of emergency?
And then the final set of questions relates to the length of the
estimate, and here, rather than addressing the problem through a series
of questions, I will be seeking consideration tonight of one of my
amendments which would place a time limit on the estimate.
I have given a copy of a modification to my amendment to the majority
manager. I do not know if they have had a chance to look at the
modification yet. But I will seek to get that issue resolved by a
modified amendment.
The issue here is a kind of fundamental one. Once that threshold is
breached, then you have to have an estimate of the direct costs of the
bill or the amendment to State and local governments for as long as
there are costs. Unless there is a sunset provision in that
authorization bill, those costs have no time limit.
Then the CBO would be in the position of trying to estimate cost to
State and local governments for decades, 50 years, 100 years. It is an
impossible burden which will raise even greater questions about the
accuracy of the estimate. An awful lot rides on these estimates. The
life or death of a bill or amendment may ride on the estimate.
So I will be offering an amendment in this area to put a limit of 10
years on that estimate so we can get something, hopefully, a little
more practical from the Congressional Budget Office.
But those are the questions which I would appreciate having answers
to tomorrow. They go right to the question of whether this is a
workable piece of legislation. Its goals are very admirable. I
supported its predecessor. There is a whole new point of order that has
been added this year which is going to create a real different
situation on the floor relative to bills and amendments, and we have to
think through this process in advance.
We are putting tremendous burdens on the CBO to suggest that they are
going to be able to come up with estimates in a matter of hours,
perhaps minutes, on amendments, and some people say, ``Well, if you
know you are going to offer an amendment, get it to the CBO a day
before, 2 days before, 2 weeks before.'' Of course, some of these
estimates can take months.
But there is also an answer to that, and that is that, in many cases,
we do not know and cannot know that we are going to offer an amendment
because an amendment could be a second-degree amendment. We are not all
privy to everybody's first-degree amendments around here. We do not
have amendments printed in advance. I would like to see a rule, by the
way, which would require amendments to be printed in advance, but we do
not have any such rule.
So you do not know who is going to call up an unprinted, unfiled
amendment to a bill. Somebody can call one up without previous notice,
and then, if you want to offer a second-degree amendment, in order for
it to be in order, you have to have an estimate from the CBO.
Now, what do we do? Do we hold up the processing of the whole U.S.
Senate while the CBO tries to estimate the costs forever, maybe, on
87,000 jurisdictions? We have to work through this in advance. It is a
complicated issue and, again, when we had last year's bill, we did not
have that final point of order that had such an appropriations impact
embedded in it, as we do in this year's bill.
So if the estimate was wrong last year, it did not have serious
consequences. It had consequences; the bill would be subject to a point
of order if it did not have the estimate. But it did not have this
additional point of order with this appropriations aspect to it that
this year's bill has.
So, Mr. President, at the appropriate time, I will offer, when the
majority is ready, this amendment putting a 10-year time limit on the
estimate of the CBO because I think that is a relatively practical
length of time for which we can get an estimate.
The modification that I will seek unanimous consent for on this is
that the 10-year limit on the estimate apply to both the private sector
estimate as well as the public sector estimate. I believe the way my
amendment was written and filed, it only applied to the public sector
estimate. We should seek practicality and workability for both the
private and public sector estimates.
I did not mean to rush the manager on the majority side. I know they
may not have had a chance yet to look at this, but whenever he is
ready, I am ready to offer this amendment.
Again, I also appreciate his engaging in these colloquies on this
bill. He is performing a very important function by trying to clarify
the legislative intent, and the questions which I have read and which I
will now submit to the desk are questions which I would appreciate your
attempting to answer by tomorrow.
I thank the Chair, and I yield the floor.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER (Mr. Santorum). The Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, I appreciate the spirit in which the
Senator from Michigan has provided these questions, and I appreciate
the fact he is not requiring an immediate response. I always
appreciated take-home exams instead of pop quizzes, but I will be happy
to provide the answers, to the extent I am capable, sometime tomorrow.
I appreciate his effort as we work through this bill.
Mr. President, I know that the Senator from Iowa is here and will be
calling up his amendment. I would like to inquire, I believe on the
previous unanimous-consent agreement, we had a time agreement of 30
minutes equally divided?
The PRESIDING OFFICER. That is correct.
Mr. KEMPTHORNE. And that no second-degree amendments were in order;
is that correct?
The PRESIDING OFFICER. The Senator is correct.
Mr. LEVIN. Will the Senator yield just for one moment, for a
parliamentary inquiry? Is there a unanimous-consent agreement in effect
on the Grassley amendment? Is there a time agreement?
The PRESIDING OFFICER. Yes, there is.
Mr. LEVIN. Is there a unanimous-consent agreement indicating when the
Grassley amendment will be called up?
[[Page S1527]] The PRESIDING OFFICER. No, there is not.
Mr. LEVIN. At that point, I would 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. DOLE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DOLE. Mr. President, some of the Members are inquiring about the
schedule for this evening. It is slow, I can tell you that. We are not
making any progress. On the 11th day on this bill, we have had only
three votes. Two votes. It is worse than I thought.
Now, if this is not delay, I do not know what delay is. So we are
going to be here a long time tonight, I am fearful. There will not be
any window. We are going to vote as the amendments come up. We just
have to stay here and do it.
I regret that I cannot accommodate some of my colleagues on both
sides of the aisle. We are spending 90 minutes on immigration
amendments. A lot of things have nothing to do with this bill at all.
Anything anybody can think of has been offered as an amendment--Social
Security amendment having to do with a balanced budget. We have to
debate that again on this bill.
I have about reached the point where we will either file cloture
tonight or start tabling these amendments unless they are offered and
you have limited debate. We do not need 40, 50, 60 minutes on some of
these amendments or rollcall votes on some of these amendments.
So I must say that I do not know any other alternative. If somebody
stands back here and banters back and forth for a day, that is not my
idea of progress. Eleven days ought to be enough. We could have
finished this bill in 4 or 5 days.
We will finish the bill this week. If it takes until 10 o'clock
tonight, 11 o'clock tomorrow night, and 11 o'clock the next night, we
will finish the bill this week. But we may file cloture in the meantime
if we continue. We may do that this evening. We have been all day long.
Now it is dark outside. People want to be home with their families, so
we are going to start voting at 6, 7, 8, 9, 10 o'clock.
So I hope my colleagues will accommodate us--not the leader; I will
be here in any event, but accommodate our other colleagues who would
like to be home with their children and families. But we have not
accomplished much today.
Mr. GLENN addressed the Chair.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. GLENN. Mr. President, I can appreciate the wishes of the majority
leader to move this through, but I would submit that we have disposed
of about 12 amendments today.
If I could address the majority leader just a moment, we have
disposed of about 12 amendments today. We have worked with them. They
have gotten some withdrawn. We have some we have gotten agreement on,
and I thought we had been making very good progress today. We are
moving right along on this. I had hoped we would be able to--I think we
are making a great deal of progress.
Mr. DOLE. How many amendments remaining?
Mr. GLENN. I do not know how many are remaining. I do not know
exactly. We have disposed of about 11 or 12 today. Not all of them had
votes on them. They either were withdrawn or we had some agreement on
them or they were accepted.
Mr. DOLE. We had 39 yesterday, and now we have 34 so I do not know--
unless there are some that have not been properly cataloged on our side
that have been disposed of. But we still have 34 amendments after 11
days on a bill. We were told last week that there were maybe 30
amendments. Then we got up to 67, and 49, and now we are down to 34, 3
days later. So if that is progress, it is very slow progress. But,
again, it is up to our colleagues. If they want to spend Saturday here,
that is fine with me.
Mr. GLENN. The procedures by which this bill was brought to the
floor, I would submit, are ones that engendered a lot of amendments. We
are still trying to work out some of the things we normally would have
taken care of in committee had we been permitted to do so. We were not
permitted to do any of the amendments in committee. It was sent back to
the floor. Had we been able to do that, I think we would have saved an
awful lot of trouble and saved much of that 11 days we have been out
here in the Chamber, whatever it is now.
I suggest the absence of a quorum.
Mr. GRASSLEY addressed the Chair.
The PRESIDING OFFICER. Will the Senator withhold?
Mr. GLENN. I withhold.
Mr. KEMPTHORNE addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. GRASSLEY. Mr. President, I will yield the floor if the manager
wants it. I reserve my right to get the floor back after he is
completed.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KEMPTHORNE. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Amendment No. 207, as modified
Mr. GRASSLEY. Mr. President, I presented yesterday an amendment of
mine. It has been modified, and I would like to send it to the desk and
ask unanimous consent that the modification be made.
The PRESIDING OFFICER. Is there objection to the modification?
Mr. GLENN. Will the Senator yield for a question, please?
Mr. GRASSLEY. Yes, Mr. President, I will yield.
Mr. GLENN. The modified language of his amendment, I do not believe
we have a copy of that. Does the Senator have a copy he can give us so
we will know?
Mr. GRASSLEY. We sure do. Just so the Senator knows I am not pulling
a fast one, it has been well known about what we are doing and we will
get the Senator a copy so he can be sure of that.
Mr. GLENN. Would the Senator restate the unanimous-consent request,
please. Was there a unanimous-consent request?
Mr. GRASSLEY. Yes. Mr. President, the unanimous-consent request I
made is for the modification according to the changes that have been
made at the request of various staff.
The PRESIDING OFFICER. Is there objection?
Mr. GLENN. I have no objection. I believe the Senator can modify his
amendment anyway, can he not?
The PRESIDING OFFICER. It requires unanimous consent under the
circumstances.
Mr. GLENN. I have no objection.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The amendment, as modified, is as follows:
On page 32, between lines 5 and 6, insert the following:
SEC. . COST OF REGULATIONS.
(a) Sense of the Congress.--It is the sense of the Congress
that Federal agencies should review and evaluate planned
regulations to ensure that the costs of Federal regulations
are within the cost estimates provided by the Congressional
Budget Office.
(b) Statement of Cost.--At the written request of any
Senator, the Director shall, to the extent practicable,
prepare--
(1) an estimate of the costs of regulations implementing an
Act containing a Federal mandate covered by section 408 of
the Congressional Budget and Impoundment Control Act of 1974,
as added by section 101(a) of this Act; and
(2) a comparison of the costs of such regulations with the
cost estimate provided for such Act by the Congressional
Budget Office.
(c) Cooperation of Office of Management and Budget.--At the
request of the Director of the Congressional Budget Office,
the Director of the Office of Management and Budget shall
provide data and cost estimates for regulations implementing
an Act containing a Federal mandate covered by section 408 of
the Congressional Budget and Impoundment Control Act of 1974,
as added by section 101(a) of this Act.
Mr. GRASSLEY. Mr. President, as I indicated yesterday, Senator Snowe
is working with me on this approach.
This very simply expresses the sense of the Congress that Federal
agencies should review and should evaluate planned regulations to
ensure the costs of Federal regulations are within the cost estimates
that are provided for the statute by the Congressional Budget Office.
[[Page S1528]] Then there is a second part that is not a sense of
the Senate. The second part would allow any Senator to request that CBO
provide an estimate of the cost of regulations and compare them with
the cost estimates provided by CBO as required for the statute that we
are passing under S. 1.
This is just a commonsense amendment that when agencies implement a
Federal mandate they should take steps and make a good-faith effort to
keep regulatory costs within the CBO estimates called for under S. 1.
We do not want to pass legislation, in Congress, thinking when we pass
the legislation that it might only be a $1 billion unfunded mandate and
then, after several months have passed--in some cases I suppose years
could pass--the agency unnecessarily implements regulations that would
raise that cost, something above the $1 billion estimate?
I hope we could all agree to this amendment. I know at least on our
side of the aisle, after discussing it with our distinguished floor
manager, Senator Kempthorne, he had some concerns about it. I think the
modifications will satisfy his concerns.
I think it ought to be stated as well that CBO has no problem with
the costs of carrying this out. And from that standpoint, this is
language similar to what was in the amendment of the Senator from
Michigan [Mr. Levin] when he called up a previous amendment he got
adopted, calling for a report at the instigation of any particular
Senator.
I yield the floor and reserve the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. GRASSLEY. I yield such time as he might need to the Senator from
Idaho.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. KEMPTHORNE. Mr. President, I appreciate what the Senator from
Iowa is proposing here. To me it seems like a very reasonable request,
so again I thank him for his diligence. I will be supporting this
amendment. I yield the remainder of my time.
The PRESIDING OFFICER. Who yields time?
Mr. KEMPTHORNE. Mr. President, I ask unanimous consent that
immediately following the next rollcall vote the Senate proceed to vote
on a resolution expressing our condolences to the nation of Japan, and
I ask it be in order to ask for the yeas and nays at this point.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KEMPTHORNE. Mr. President, 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. LEVIN. Parliamentary inquiry, whose resolution is this?
Mr. KEMPTHORNE. Mr. President, it is a Dole-Daschle-Bingaman
bipartisan resolution.
Mr. LEVIN. This is relative to Japan?
Mr. KEMPTHORNE. It is.
Mr. LEVIN. I thank the Chair.
The PRESIDING OFFICER. Who yields time?
Mr. GLENN. Mr. President, I yield myself such time as I may require.
Mr. President, I say to my colleague from Iowa, the agencies are
already under strictures that come under the President's Executive
order to examine costs and benefits before issuing regulations. It
seems to me that should really be the test for any regulation--do the
benefits outweigh the costs? If they do, the regulations should go
forward. If not, the regulations should be killed.
It seems to me the proposed Grassley amendment adds another stricture
without taking benefits into account. If a benefit far outweighs a
cost, why should the CBO cost estimate become a ceiling?
In other words, what we are doing here is saying CBO--as I understand
it--CBO is to make an estimate of the cost. Then once that cost
estimate is made, which at best is an estimate, then the cost of
implementing whatever the proposal is could not exceed the CBO cost, no
matter what? Is that the intent of the Senator from Iowa?
Mr. GRASSLEY. Mr. President, I will be glad to attempt to answer. I
am not sure I can, because I am not sure I understand the question of
the Senator. But implicit in his question, I believe, is a feeling that
the purpose of my amendment is to stop the regulation from going into
effect. That is not the purpose of the amendment. There is nothing in
the wording of the amendment that does that.
The purpose of the amendment is that if we pass a statute in the year
1996, and CBO says it is going to cost $1 billion, and then 2 years
later--it takes a long time to get these regulations written--2 years
later the agency might issue regulations that cost something more.
My amendment does not make CBO study that, except at the request of a
Senator. But if I would decide, looking at department X's regulations,
it looks to me like these are a lot more expensive in unfunded mandates
than what we anticipated when we pass the legislation, I want CBO to
take a look at those regulations.
CBO takes a look at those regulations and they might say, no, this is
not over the $1 billion; or they might say it is $2 billion, it is
going to make this statute cost $2 billion instead of $1 billion. My
amendment will not in any way keep those regulations from going into
effect. But I surely think we ought to have a track record by which we
can measure whether or not an original estimate and intent of statute
is realized. And if it is not, then at least we know that and it is a
matter of public record.
The other thing that might come as a benefit of my regulation is that
the regulation writers, if somebody might ask for a review, may be just
a little more careful to stay within the cost intent of the statute. I
think that is legitimate. I think if we write a statute that we think
is going to be an unfunded mandate costing $1 billion, we should not
allow some faceless bureaucrat to write regulations that make it cost
much more and not be in keeping with congressional intent. That is all
I am trying to do. I hope I have answered the Senator's question.
Mr. GLENN. I would have another question I would like to ask, too.
That is, it says, ``an estimate of the costs of regulations
implementing an Act containing a Federal mandate covered by section 408
of the Congressional Budget and Impoundment Control Act of 1974, as
added by section 101(a) of this Act''--and then goes on, ``a comparison
of the costs of such regulations with the cost estimate provide for
such Act by the Congressional Budget Office.''
Would this mean that these would all be still prospective? Or does
this mean that, because we go back and reference the Congressional
Budget and Impoundment Control Act of 1974, that the CBO would be
expected upon written request to go back and estimate mandates and how
they worked out compared with CBO estimates, clear back over the last
21 years?
Mr. GRASSLEY. Mr. President. It is a very good question. And the
answer is it is prospective, and it just covers whatever S. 1 covers.
Mr. GLENN. I have a further question. Would the Senator be willing to
have the benefits and costs evaluated at the same time?
Mr. GRASSLEY. No.
Mr. GLENN. The President's Executive order, I would say, covers that
and I think that is a necessary part of this thing, to consider the
benefits as well as just the costs.
Mr. GRASSLEY. Mr. President, I see the cost-benefit analysis as a
very worthwhile procedure. I think I supported that. I have not had a
chance to vote on it in past Congresses. But I support the concept. I
think, as the Senator said, the concept is to end the rulemaking
process. I happen to think that is not a very effective process that we
go through. I think it is not refined well enough. I do not think there
is a bureaucratic inclination to abide by it in good faith. I support
that concept, but I do not think it has any relationship to what I am
trying to accomplish by my amendment.
It is a worthy goal the Senator suggests, but it is a little more. I
believe it is much more in depth and serves a whole different purpose
than what I am trying to serve by my amendment.
Mr. GLENN. Mr. President, if I might add another question in part A,
sense of the Congress, it is the sense of the Congress that the Federal
agency should review and evaluate planned regulations. And then the
next part is
[[Page S1529]] to ensure that the costs of Federal regulations are
within the cost estimates provided by the Congressional Budget Office.
It seems to me that sets a ceiling beyond which you could not go. The
CBO is at best making estimates. I do not see how you can say that the
agency, trying to implement something that may be very involved, should
be limited to no more than the estimate of the Congressional Budget
Office. I do not know whether that was the intent or not.
What we would be doing is saying with the legislation we pass, we are
in effect passing our legislative responsibilities on to the CBO and
saying whatever they come up with is the absolute ceiling, when they
are required on a rapid basis to give us their best estimates. That
does not mean when it gets over to the agency, they get it in more
detail. It might exceed a little; it might go under some. But I think
to make CBO the final authority on what the ceiling will be, with their
rapidly arrived-at estimate of costs, I just do not see how that would
work.
Was not the intent to make the estimate of the Congressional Budget
Office a ceiling that could not be exceeded in the executive branch
when they try to implement the law that we just passed, or implement a
mandate?
Mr. GRASSLEY. Mr. President, before I answer this question, there is
one further response I want to give to the Senator on his question
about the cost benefit. A more explicit answer to the question is, as I
said, we only want to do what S. 1 does, and S. 1 deals just with cost.
On the point that the Senator from Ohio just made, there is not a
real solid answer I can give because of the very basis of my language
being sense of the Senate. I think sense of the Senate implies, first
of all, that the bureaucrats and regulation writers do a good-faith
effort to be within the congressional intent of whatever the ceiling is
of the unfunded mandate.
Second, sense of the Senate is not binding because it is only sense
of the Senate. It is not statute. I would feel that the Congressional
Budget Office, in making this estimate, could do no more under my
amendment than just simply say in a quantifiable way that the agency
cost will be so much. That could be higher or lower. The extent to
which it is higher, their statement that it is higher in no way, under
the statute or under the intent of my amendment, is going to keep the
regulation from going into effect.
If I could be perfectly candid with the Senator from Ohio, I think if
unfunded mandates legislation is going to mean anything, eventually you
have to get to that point where the regulation writers are within the
intent of Congress on what the cost is, or else we do not have a very
effective statute. But I cannot do that now. I do not know whether now
is the time to do that because this legislation is a pioneering piece
of legislation. So we ought to feel our way along to that point. I
think my sense of the Senate ought to be looked at as giving Congress
some additional tools down the road, a track record by which we can
make better judgments if this statute needs to be refined.
Mr. GLENN. Mr. President, the Senator treats sense of the Senate just
a little more lightly than I think a sense of the Senate should be
treated in this regard. Legislative history is made here on the floor,
and we talk about sense of the Senate and all the other things that go
on in debate. All of these things give the regulation writers the sense
of the Senate as to where we want to go. They follow this. They are
supposed to follow it.
This is used in its entirety, of course, and sense of the Senate is
not as binding as regular legislation. But we are telling the agency
that the agencies should review and evaluate planned regulations, not
just to think about it. We are saying to ensure that the costs are
within the cost estimates provided by CBO.
That is a mighty potent statement, it seems to me. If we are saying
it is sense of the Congress, but we really do not mean that, and you
people over there just go ahead and do what you think ought to be done,
then that is a different thing. But what we are saying is we are
telling them it is our sense of the Senate and the Congress to ensure
that they stay within the CBO estimate.
Mr. GRASSLEY. Mr. President, will the Senator yield?
Mr. GLENN. Certainly.
Mr. GRASSLEY. Mr. President, this would require further modification.
But first of all, before I suggest something, I do not want it to be
suggested that I think my amendment does more or is intended to do more
than what I said I wanted it to do. I did not doctor up the sense-of-
the-Senate language because I do not know how much weaker you can get
in any statement of public policy that this body makes in sense-of-the-
Senate language. Maybe the Senator from Ohio puts it on a higher plane
than I do. But I do not think it deserves such a high plane.
So I did not think about adjusting it any, because I do not think you
can be much weaker than a sense of the Senate. But if it would help the
Senator, we could put in the same words that we put in the second part
of the amendment, and say ``to the extent practicable.''
Mr. GLENN. I am not exactly sure how that would change it that much,
Mr. President. I think when you are trying to direct them to ensure
that whatever they do with regard to rules and regulations will not go
beyond the Congressional Budget Office estimate, no matter what we
passed on the floor here, and how many amendments we had, and all the
other provisions we may have put on the floor, we are in effect going
back to CBO and saying: You are the legislating authority on this
because your estimate that you gave us, that might be very sketchy,
arrived at in a few hours at best, we are saying that becomes the
definitive figure on this thing as far as guidance for the Federal
agencies goes, and we want to ensure that.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. GRASSLEY. I want to save some of my time, so I do not want to
yield. I ask unanimous consent that the Senator have 1 additional
minute.
Mr. GLENN. I am sorry we did not know the time here. That is my
fault. I ask unanimous consent that Senator Levin be granted an
additional 5 minutes.
Mr. GRASSLEY. Then I want 5 minutes on this side.
Mr. GLENN. We have no objection to that.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRASSLEY. Mr. President, may I yield myself such time as I might
consume to respond?
The PRESIDING OFFICER. The Senator from Iowa.
Mr. GRASSLEY. Mr. President, again, I did not make my suggestion very
clear to the Senator from Ohio because he kept concentrating on the
word ``ensured.'' We could eliminate ``ensured'' and put in there ``to
the extent practicable'' and that may solve the problem. I do not want
to do that unless it will solve the problem because I think this is
about as weak as you can get.
I yield the floor and reserve the remainder of my time.
Mr. LEVIN. Mr. President, the trouble with this sense-of-the-Senate
language is that it delegates the legislative responsibility to the
Congressional Budget Office. This is what the Senator from Ohio was
alerting us to in his last couple of minutes.
The Congressional Budget Office, if we are lucky, is going to be able
to make an estimate of what the cost will be to 87,000 State and local
governments for some period, which could last forever, the way the bill
is currently worded. But it is going to be decades into the future.
These are, at best, going to be guesstimates. We have example after
example that they have told us where they cannot make a good estimate.
These are not scientific statements of costs; these are guesstimates
that are going to be coming out of the CBO. We cannot take that
guesstimate and say that it is the sense of the Senate that the agency
should ensure that a regulation complies with that guesstimate instead
of law.
Let us say we pass a law that says airports must introduce security
devices that will pick up levels of metal down to a certain amount. We
are doing that for the safety of the passengers of the United States,
the American citizens that walk through metal detectors and get on
airplanes want to
[[Page S1530]] feel safe. We pass a law that says you must get down to
a certain level of detection in these metal detectors. That is the law.
We have adopted that law. Now we get an estimate. The CBO gets us an
estimate as to how much that is going to cost State and local
government. Their estimate comes out that it is going to cost $50
million for all these jurisdictions in one of those years. We have
written a law saying you have to do something for the safety of the
American people, but we have a CBO guesstimate over there that says $50
million.
It turns out, down the road, that when those detectors are put in,
they are going to cost more than $50 million. Are we going to say
tonight that we want the agency to abide by the estimate of the CBO
instead of our law? Are we putting a CBO guesstimate on a pedestal so
that it will take precedence over what we have said is essential for
the safety of the American people? Is that our intent? It is not my
intent. I am not going to put that guesstimate on a pedestal. I am
troubled about the ambiguities of these guesstimates.
We surely do not want that guesstimate of the unelected CBO, for some
period out in the future, to supersede the elected representative of
the people of the United States. If we say the law is that there must
be metal detectors that can capture metal or other material down to a
certain level, that is our intent. And we have a guesstimate that says
it is going to cost a certain amount in a certain year, OK, that will
give us some guidance. But do not give that precedence over what our
decision is as to what the law should be, because you are just
delegating to the CBO what we as elected officials are responsible to
do.
That is one of the difficulties with my friend's amendment. When he
says that agencies should evaluate planned regulations to ensure--the
key word is ``ensure''--that they are within cost estimates in the
budget office, he is just giving the legislative authority away to the
budget office and saying, yes, we want those metal detectors to capture
a certain level of metal, but we are not really saying that. So I would
suggest that we let the staff try to work out some language here. I
think I know what the Senator is driving at. I think this language goes
too far. I suggest that his staff and the staff of Senator Glenn, and
perhaps mine, and any other interested Senator, might get together to
work out language to avoid the result that this could otherwise lead
to.
Mr. GRASSLEY. Mr. President, first of all, the Senator from Michigan
wants us to believe that the sense-of-the-Senate resolution is going to
bind every regulator who is working under the constitutional authority
of the President--that they will not perform their responsibilities;
that a sense-of-the-Senate resolution will somehow amend the
Constitution, take away statutory authority of the bureaucrat. No
sense-of-the-Senate amendment can or will do that or ever has done
that.
The other point is that Congress does not turn anything over to the
Congressional Budget Office through this sense-of-the-Senate
resolution. This is our decision to make. There is no regulation that
in any way can be stalled by either part of my amendment. It is not
intended to do that. For the Senator from Michigan, it is not intended
to take, nor will it take away any statutory responsibilities or
constitutional responsibilities of any employee or officer of the
executive branch.
I am always willing to work something out, but I think we have
reached a point where yesterday and today we have tried to work out
things in this area. One of the very concerns that the Senator from
Michigan had previously with my amendment, in some of the discussions
before, was the extent to which CBO could do this within their budget.
From that standpoint, the Senator from Michigan just got an amendment
adopted by this body that, within the same budget limitation of the
CBO, asked them to do exactly what I am doing with my amendment.
So I think it is a little bit wrong for the Senator from Michigan to
come here and say that I am asking too much of the Congressional Budget
Office, or that a sense-of-the-Senate resolution will reduce the
statutory responsibilities or the congressional responsibilities of any
person within the executive branch.
How much time do I have left?
The PRESIDING OFFICER. The Senator has 13 minutes.
Mr. LEVIN. If the Senator will yield for a question, I have not
objected to your part B which relates to the statement of cost of the
Congressional Budget Office. I have not raised an objection.
Mr. GRASSLEY. I think it is because we have satisfied you with our
changes in our language.
Mr. LEVIN. For whatever reason, I have not objected to the Senator's
amendment as it relates to the additional duty of the CBO.
Will the Senator yield for a question?
Mr. GRASSLEY. I stand corrected from the standpoint that that may
have referred to the entire language of the bill.
I yield for a question.
Mr. LEVIN. Under your language, it is the sense of the Congress that
the Federal agency should do something to ensure something, and I want
to give the Senator a hypothetical.
Assume that the estimate of the CBO was that the metal detector would
cost $50 million. But the way the agency reads our law requiring them
to get these new metal detectors installed to protect the American
people, it turns out that those metal detectors required by our law
will cost $75 million. Should the agency ensure the $50 million in that
event, even though they read our law to require metal detectors which
as it turns out a couple years down the road will cost $75 million? Or
is it your sense that they should go with the cheaper $50 million metal
detector, which will not do the job, because that was the CBO estimate?
Or is it the Senators intention that they comply with our law because
the better metal detector will be better?
Mr. GRASSLEY. I think it is a relatively easy question to answer.
First of all, S. 1, as far as the unfunded mandates are concerned, the
statutory authority that the regulator has to fulfill their
responsibilities to protect the public is binding. That is not the
sense of the Senate. But I am not saying that because I want to bring
less significance to my sense of the Senate. I am saying that because
that is the role--that is the place of sense-of-the-Senate resolutions
in policymaking in our constitutional system of Government.
The regulator would go ahead and put in the more expensive product to
protect the public. But, if I, Senator Grassley, 6 months later said,
``Well, you know, I have some doubts about this. Is it within the
cost?'' I ask the CBO to study what the cost is. Let us suppose CBO
comes up with the fact that it is over the unfunded mandate estimate.
That is a quantifiable fact that does not affect the decision of the
regulators. And that is the intent. But, to be perfectly candid to both
of my colleagues who have spoken in opposition to this, I would expect
maybe at reauthorization time that that fact could be a basis for maybe
tightening up some of the statutes so that regulations cannot
circumvent the original intent of the statute.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator from Iowa has 9 minutes remaining.
Mr. GRASSLEY. And the other side has?
The PRESIDING OFFICER. No time remaining.
Mr. GRASSLEY. Mr. President, I would like to ask a question of the
Republican manager of the bill. Is it the Senator's desire, then, if I
would yield back my time, that we would immediately go to a vote on my
amendment?
Mr. KEMPTHORNE. Mr. President, that would be my intent.
Mr. GRASSLEY. Mr. President, I yield back the remainder of my time.
The PRESIDING OFFICER. The Senator yields back the remainder of his
time.
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. 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.
[[Page S1531]] Mr. KEMPTHORNE. Mr. President, I ask unanimous
consent that, with respect to the Lautenberg amendment numbered 199,
there be 40 minutes of debate prior to the motion to table, to be
divided in the usual form; and that, upon the expiration or yielding
back of time, the majority manager or his designee be recognized to
make a motion to table. I also ask unanimous consent that there be no
second degree amendments in order to the Lautenberg amendment prior to
the motion to table the Lautenberg amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KEMPTHORNE. 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. GRASSLEY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Thomas). Without objection, it is so
ordered.
Amendment No. 207, as Further Modified
Mr. GRASSLEY. Mr. President, we have been able to arrive at some
language that satisfies myself and satisfies the Democratic side of the
aisle. Pursuant to that, I will have to ask unanimous consent that my
amendment be modified as written on this paper.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment, as further modified, is as follows:
On page 32, between lines 5 and 6, insert the following:
SEC. . COST OF REGULATIONS.
(a) Sense of the Congress.--It is the sense of the Congress
that Federal agencies should review and evaluate planned
regulations to ensure that cost estimates provided by the
Congressional Budget Office will be carefully considered as
regulations are promulgated.
(b) Statement of Cost.--At the written request of any
Senator, the Director shall, to the extent practicable,
prepare--
(1) an estimate of the costs of regulations implementing an
Act containing a Federal mandate covered by section 408 of
the Congressional Budget and Impoundment Control Act of 1974,
as added by section 101(a) of this Act; and
(2) a comparison of the costs of such regulations with the
cost estimate provided for such Act by the Congressional
Budget Office.
(c) Cooperation of Office of Management and Budget.--At the
request of the Director of the Congressional Budget Office,
the Director of the Office of Management and Budget shall
provide data and cost estimates for regulations implementing
an Act containing a Federal mandate covered by section 408 of
the Congressional Budget and Impoundment Control Act of 1974,
as added by section 101(a) of this Act.
Mr. GRASSLEY. Mr. President, I will yield back my remaining time, and
I 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.
Vote on Amendment No. 207, as Further Modified
The PRESIDING OFFICER. The vote now occurs on the amendment No. 207,
as further modified, offered by the Senator from Iowa [Mr. Grassley].
The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. LOTT. I announce that the Senator from Wyoming [Mr. Simpson] is
absent due to a death in the family.
I further announce that, if present and voting, the Senator from
Wyoming [Mr. Simpson] would vote ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 99, nays 0, as follows:
[Rollcall Vote No. 45 Leg.]
YEAS--99
Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Helms
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simon
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone
NOT VOTING--1
Simpson
So the amendment (No. 207), as further modified, was agreed to.
Mr. KEMPTHORNE. Mr. President, I move to reconsider the vote.
Mr. LEAHY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. DOLE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. DOLE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________