[Congressional Record Volume 141, Number 42 (Tuesday, March 7, 1995)]
[House]
[Pages H2735-H2749]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  ATTORNEY ACCOUNTABILITY ACT OF 1995

  The SPEAKER pro tempore. Pursuant to House Resolution 104 and rule 
XXIII the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the further consideration of the bill, 
H.R. 988.

                              {time}  1159


                     in the committee of the whole

  Accordingly the House resolved itself into the Committee of the Whole 
House on the State of the Union for the further consideration of the 
bill (H.R. 988) to reform the Federal civil justice system, with Mr. 
Hobson in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. When the Committee of the Whole rose on Monday, March 
6, 1995, the amendment offered by the gentleman from Ohio [Mr. Hoke] 
had been disposed of and the bill was open to amendment at any point.
  Two and one-half hours remain for consideration of amendments under 
the 5-minute rule.
  Are there further amendments to the bill?
               amendment offered by mr. burton of indiana

  Mr. BURTON of Indiana. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Burton of Indiana: In section 2, 
     page 4, line 1, insert at the beginning of the line ``25 
     percent of''.
       And on line 5, strike the period, insert a comma and add 
     the following new language ``or the Court may increase the 
     percentage above the 25 percent if in the opinion of the 
     Court the offeree was not reasonable in rejecting the last 
     offer.''

  Mr. BURTON of Indiana. Mr. Chairman, I believe that if there is a 
frivolous lawsuit filed there ought to be a penalty assessed on the 
plaintiff. I believe that should be the case. I do not believe, 
however, it should be a 100 percent losers paying totally, and the 
reason I say that is because I have known a number of people who have 
been involved in litigations of this type who have had a legitimate 
lawsuit, and because of the jury or because of the judge or for 
whatever reason the ruling was against them, and they were not in a 
position to be able to pay exorbitant legal fees on the part of the 
defendant.
  Many times these defendants are lawyers for large corporations who 
can drag these suits on for long periods of time and spend an awful lot 
of money. Look at some of the trials like you see on TV right now like 
the O.J. Simpson trial, you see how much time and effort and money is 
being spent on legal defense.
  Some of these people are very proficient at what they do. Can you 
imagine, we are not talking about a murder trial now, but can you 
imagine a person in a civil case that is suing somebody and they have 
the ability to hire the kind of legal counsel you see in the O.J. 
Simpson case where millions of dollars might be spent in defending 
someone?
  So I believe that there ought to be some middle ground. And that 
middle ground is exhibited in my amendment, and my amendment says that 
if the plaintiff loses the case, there is a 25-percent penalty. But if 
it is a frivolous 
 [[Page H2736]] flagrant case, the judge has the ability to expand that 
up to 100 percent. So there is somewhat of a sliding scale.
  I talked to the gentleman from Virginia [Mr. Goodlatte] last night, 
the bill's sponsor, and he said he thought he could live with some kind 
of sliding scale. The problem is that neither the gentleman from 
Virginia [Mr. Goodlatte], nor I, nor anyone in the body could come up 
with a sliding scale. So the next best thing is to come up with a hard 
percentage, like the 25 percent I am talking about, and then leave 
discretion to the judge in the event he feels like it is a case that 
was not meritoriou and was frivolous and he can raise that fee. I think 
that will discourage an awful lot of lawsuits.
  In addition, I think this will bring both sides closer together than 
the loser pays provision that is already in the bill because it is 
going to encourage the plaintiff, because he knows there is a penalty 
if they lose the case; and it is going to encourage the defense because 
they know they are not going to get 100 percent even if they hire high-
powered lawyers to win the case. So I think this will force more people 
to settlement, even more so than the entire loser pays provision in the 
bill.
  So, Mr. Chairman, I believe this is a sound, reasonable amendment. It 
strikes a middle ground. It comes as close to the sliding scale the 
gentleman from Virginia [Mr. Goodlatte] said he would accept without 
going to an actual sliding scale, which I think is an impossible thing 
to achieve.
  Ms. HARMAN. Mr. Chairman, I rise in support of the Burton amendment.
  (Ms. HARMAN asked and was given permission to revise and extend her 
remarks.)
  Ms. HARMAN. Mr. Chairman, I would like to commend the gentleman from 
Indiana [Mr. Burton] for trying to do something that concerns many of 
us in this body who have listened intensely to the debate on this 
issue. I think that everyone here does not want to deter meritorious 
lawsuits, but it is also true that there are abuses, and we do want to 
deal with those abuses in a fair way.
  I think that the Goodlatte language, especially as amended by him, 
goes a long way toward doing that, but there are possible excesses in 
that language, and the gentleman from Indiana [Mr. Burton] has 
suggested a remedy that would amount to a sliding scale of fee awards 
that would deal with those excesses.
  I know the gentleman from Indiana [Mr. Burton] speaks here from 
personal experience, and I think it is very commendable that he would 
offer this. I also want to say that should his amendment fail, I intend 
to offer an amendment to provide a different approach to this very 
difficult subject, which I think also merits consideration.
  My bottom line here is this is not a partisan issue, this is about 
fairness, it is about curbing abuse, but it is also about permitting 
meritorious action.
  I urge support for the Burton amendment.
  Mr. MOORHEAD. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, I rise in opposition to the amendment offered by the 
gentleman from Indiana. The amendment would limit loser pays to a 25-
percent recovery. This would in effect defeat the concept of loser 
pays. What this does is substantially reduce the incentive for the 
parties to settle their cases out of court.
  If we are going to go on with a loser-pays provision, let us not 
weaken it or water it down to such a point that it defeats the whole 
purpose.
  The other part of the amendment giving the judge discretion to 
increase the 25 percent would only lead to further litigations on 
whether the offer is reasonable or unreasonable. The amendment I 
believe would seriously weaken loser pay.
  We have a number of provisions in the legislation now that puts 
restrictions on loser pay. We have tried to reach the areas where it is 
between, where the judgment is between the offer of the defendant and 
the offer of the plaintiff; there would be no loser pay involved there. 
There are provisions that a judge can use his discretion as to whether 
to provide for loser pay in the legislation.
  I think that if we are going to go in this direction there is not 
much left of the loser-pay provision. I do not think that the 25 
percent still left in here will have much effect on encouraging people 
to settle. I do not think it will have much to do to cut down on 
overall litigations. And for that reason I would ask for a ``no'' vote 
on this amendment.
  Mr. BURTON of Indiana. Mr. Chairman, will the gentleman yield?
  Mr. MOORHEAD. I am happy to yield to the gentleman from Indiana.
  Mr. BURTON of Indiana. Mr. Chairman, I do not quite understand the 
chairman's argument. He said that this would eliminate the forcing of a 
settlement before the trial takes place. It seems to me that this puts 
more of a balance into the legislation instead of having all of the 
burdens shifted over to the plaintiff.
  Right now you are shifting 100 percent of the costs to the plaintiff 
if he does not settle and the judgment is below what was the last 
offer. And it seems to me that that is putting undue pressure on the 
plaintiff.
  What I was trying to do was to try to reach a middle ground that was 
more fair than what the original legislation intended.
  Mr. MOORHEAD. But actually it applies to both the defendant and the 
plaintiff. The plaintiff is not the only one that could be caught 
paying the other person's fees.
  But I can tell the gentleman that you can limit the amount of money 
you may have to pay by prior to 10 days before trial making your final 
offer and you will not have to pay the fees that have accrued prior to 
that time. You many be able to strike under the present bill a large 
percent of what you might otherwise have had to pay.
  But I do think that if you go down from there and have only 25 
percent of what would accrue from that time forward, you do not have 
very much left out of your loser pays.
  Mr. BURTON of Indiana. If the gentleman will yield on one further 
question. The further question is did the gentleman understand, he did 
not mention in his comments, that the judge does have latitude to 
increase that 25 percent to 100 percent if he chooses to do that?
  Mr. MOORHEAD. I understand that, and I did comment on that in my 
comments, that you come to another argument when you go into that. You 
lead to further litigation and dispute as to whether the offer has been 
reasonable or unreasonable, many other things that could be involved 
there, and we are going to have an irregularity between one judge and 
another as to what you get out of the law as we intend it to be.

                              {time}  1200

  Mr. BURTON of Indiana. Mr. Chairman, if the gentleman would yield 
further, I ask, ``Don't judges already have latitude?''
  Mr. MOORHEAD. To a certain extent.
  Mr. BURTON of Indiana. Then why would this exacerbate that situation?
  Mr. MOORHEAD. I say to the gentleman, ``Primarily because, whey you 
cut from 100 percent to 25 percent, you're gutting the very issue we're 
talking about.''
  Mr. BURTON of Indiana. But the fact of the matter is judges have 
latitude right now. What we are setting is a floor of 25 percent, and 
we are allowing them to go to 100 percent.
  So what the gentleman wants to do is he does not want the judges to 
have any latitude; is that correct?
  Mr. MOORHEAD. They do have some latitude under the bill as it is 
written.
  Mr. BURTON of Indiana. But the gentleman does not want them to have 
this latitude.
  Mr. MOORHEAD. Latitude in every single case where they have not found 
that it will work an injustice.
  We have in our legislation that we have, we have provisions in those 
extreme cases where the judge does have a latitude.
  Mr. BURTON of Indiana. Well----
  Mr. MOORHEAD. I just think, if the gentleman is not in favor of loser 
pays, of course he is not going to like this at all. But under the 
amendments that we have put into the bill, a lot of the sting of loser 
pays has been taken out already----
  Mr. BURTON of Indiana. If the gentleman would yield----
  Mr. MOORHEAD. In the Goodlatte amendment.
  Mr. BURTON of Indiana. One more brief comment, and that is this, that 
I 
 [[Page H2737]] do agree that there should be a penalty, and I agree 
that the penalty should be pretty severe. Twenty-five percent is not 
peanuts in many of these cases, but what I disagree with----
  The CHAIRMAN. The time of the gentleman from California [Mr. 
Moorhead] has expired.
  (On request of Mr. Burton of Indiana and by unanimous consent, Mr. 
Moorhead was allowed to proceed for 1 additional minute.)
  Mr. BURTON of Indiana. What I disagree with is that this is putting 
such a huge burden on, in many cases, people who could not afford to 
pay the 100 percent, and--but at the same time the gentleman is still 
giving the judge latitude in the event it is a frivolous case. It seems 
to me this is as close to a sliding scale as the gentleman from 
Virginia [Mr. Goodlatte] requested, as we can possibly come.
  Mr. MOORHEAD. It is a sliding scale though.
  Mr. BURTON of Indiana. Well, Mr. Chairman, I say to the gentleman, 
``Well, you're giving the judge latitude; I mean that's a sliding 
scale.''
  Mr. MOORHEAD. Possibility.
  I say to the gentleman, ``I think you're just defeating loser pays.''
  Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
  Mr. MOORHEAD. I yield to the gentleman from Virginia.
  Mr. GOODLATTE. Mr. Chairman, the gentleman from Indiana [Mr. Burton] 
and I have been discussing since last night the gentleman's concerns, 
and what I would first say to the gentleman is that let us not forget 
that we are talking about diversity cases in Federal district court. We 
are not talking about, by any means, all tort cases. In fact, what we 
are really talking about are the vast majority of these cases not being 
the kind of tort cases the gentleman described. They are being mostly 
contract cases and issues----
  The CHAIRMAN. The time of the gentleman from California [Mr. 
Moorhead] has expired.
  (On request of Mr. Goodlatte and by unanimous consent, Mr. Moorhead 
was allowed to proceed for 1 additional minute.)
  Mr. GOODLATTE. Mr. Chairman, would the gentleman yield further?
  Mr. MOORHEAD. I yield to the gentleman from Virginia.
  Mr. GOODLATTE. It would be my hope that we could work something out 
along the lines of the amendment that I suggested there which would 
help out in the case where a plaintiff actually got a judgment against 
a defendant, but the defendant offered more under the proceeding that 
is provided for in the bill than what the plaintiff got from the jury, 
and under those circumstances, because a case is really two parts; it 
is part liability and part proving damages, and clearly the plaintiff 
would have proven liability in those circumstances. Then there is an 
argument to be made that it should be less than 100 percent. It would 
make it 50 percent.
  If the gentleman would work with us along those lines and withdraw 
his amendment, it would be very helpful.
  Mr. BURTON of Indiana. Mr. Chairman, would the chairman yield 
briefly?
  Mr. MOORHEAD. I yield to the gentleman from Indiana.
  Mr. BURTON of Indiana. Let me just make two comments.
  First of all, many of the States are working on similar legislation 
of this right now as far as State litigation is concerned. We all know 
that. I believe that what we do here today will serve as a model for 
many of those States, so this reaches beyond just Federal litigation in 
my view in the long run.
  In addition to that, I read the gentleman's amendment, and, while I 
think that is a step in the right direction, the problem I have with 
that is we still have some jurors and some judges that may rule against 
a legitimate case, and what the gentleman's amendment does is only 
deals where the plaintiff gets some kind of a settlement. If the 
plaintiff does not get any settlement, then he or she still pays 100 
percent of the defense cost for the defendant, and in my view, as my 
colleagues know, that could work an undue hardship.
  My amendment, my amendment right now, says that they do have a 25-
percent penalty, and, if it is truly a frivolous case, the judge can 
assess more than that, but it does leave some discretion with the 
court, and to me that makes some sense.
  Mr. GOODLATTE. Mr. Chairman, will the gentleman yield further?
  Mr. MOORHEAD. I yield to the gentleman from Virginia.
  Mr. GOODLATTE. Let me say to the gentleman from Indiana, let us not 
forget that under the current system that exists right now that the 
circumstances the gentleman just described where a judge or a jury 
unfairly ruled against a party, if they rule against a defendant, they 
are stuck right now paying attorney fees, and substantial attorney 
fees. Under a contingency fee case the gentleman describes, that would 
not be true of a plaintiff; you see?
  So there is a definite disparity in the law as it exists right now.
  Mr. BURTON of Indiana. Mr. Chairman, if the gentleman would yield, 
let me just say that all cases are not on a contingency basis.
  Mr. GOODLATTE. That is correct.
  Mr. BURTON of Indiana. And the gentleman keeps talking about a 
contingency basis, but many of those are on hourly rate, and so the 
plaintiff does pay legal fees in many of these cases on an hourly rate, 
and it is pretty doggone high.
  So this contingency thing is real, but that is not 100 percent.
  Mr. GOODLATTE. If the gentleman would yield further, the gentleman is 
correct, but in tort cases I think he would find the overwhelming 
majority, if not all of them, are going to be on a contingency fee 
basis. I am sure there are a few that are not, but very, very few.
  What we are really talking about are other types of contract actions 
and so on where that would be the case, but then again that would be 
true of both parties facing that liability under the circumstances that 
the gentleman describes. My amendment would cure the difficulty that we 
are talking about here.
  Mr. BURTON of Indiana. If the gentleman would yield further, I say to 
the gentleman, if your amendment would deal, in addition to those cases 
where the plaintiff got a settlement, but below the last best offer; if 
it went further than that, even where the plaintiff lost, I could 
probably accept that amendment, but the gentleman completely eliminates 
that possibility.
  I say to the gentleman, in your amendment here that you just 
presented to me, if the plaintiff gets a zero grant or zero decision 
from the court, he still picks up 100 percent of the defense's legal 
fees. So that part of the amendment I don't think is good, and I could 
not accept that.
  Mr. MOORHEAD. Mr. Chairman, I yield back the balance of my time.
  Mr. WATT of North Carolina. Mr. Chairman, I move to strike the 
requisite number of words.
  Mr. Chairman, I want to commend my colleague, the gentleman from 
Indiana [Mr. Burton], for bringing a real-life situation into this 
debate which demonstrates the severe adverse impact that this bill 
would have on ordinary working people in this country. I also want to 
commend him for this effort to improve the provisions of the underlying 
bill, which I think his amendment would do. However at the same time I 
want to point out the problem that the amendment demonstrates that the 
underlying bill presents to us.
  I say to my colleagues, ``When you try to apply this bill to other 
than frivolous cases, you are inevitably going to get into the very 
kind of situation that Mr. Burton's amendment is trying to address, 
and, once you start to do this sliding scale approach, or once you try 
to do 25 percent, or 50 percent, or 75 percent, or 10 percent, what you 
have started to do is demonstrate the sheer irrationality of the entire 
approach that is being applied here because, once you get on that kind 
of slippery slope, as we used to call it in the law, you can't figure 
out where to draw the line in a way that it makes any kind of sense, 
and it doesn't show that a higher threshold necessarily makes any more 
sense. What it shows is that the underlying approach that you are using 
when you apply it to nonfrivolous lawsuits doesn't make any sense.''
  So, Mr. Chairman, while I commend the gentleman for coming forward 
with the amendment, which is an improvement, it gets us on that 
slippery slope and moves us on this sliding scale toward a better bill, 
we would really be 
 [[Page H2738]] better served if we went back to the approach of 
limiting the underlying bill only to frivolous cases.
  Mr. GOODLATTE. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in opposition to this amendment. The effect of 
this amendment would be to say in a case where somebody loses a lawsuit 
for whatever reason that not only are their attorney fees limited in 
the fashion they have already been limited in the bill, and we have 
limited them in several respects: First of all, we have limited them to 
10 days before the trial through the trial, and we have done that for 
good reason.
  It has been pointed out that a party to a lawsuit through the 
discovery process could drive up the amount of attorney fees by loading 
up the other party with discovery motions, and depositions and so on. 
So we limit it to 10 days before trial through the trial, which is the 
time when one is, generally speaking, preparing for trial and preparing 
the case. Second, we have limited it so that the losing party would not 
be required to pay the prevailing party more than the attorney fees 
that the prevailing party is--the losing party is paying their own 
attorney.
  The fact of the matter is that that also has a good purpose in the 
bill because it prevents the deep pockets that so many on the other 
side have talked about from loading up the attorney fees by bringing 
four attorneys into trial and so on. They cannot, by adding costs on 
their side, make the nonprevailing party, the losing party, pay more 
costs because it is limited that they cannot pay the other side more 
than they pay their own attorney. So they have the ability to some 
extent to control and to limit that.
  Finally, we have in this bill a provision which allows the court in 
its discretion to not apply the provisions of this bill under two 
circumstances. One circumstance is where it finds that it would be 
manifestly unjust to do so, and that certainly gives the court 
discretion. In addition, the court can find that the case presents a 
question of law or fact that is novel and important and that 
substantially affects nonparties, and if a--and can exempt it for that 
reason as well.
  This amendment will take that 75 percent further. Three quarters of 
the attorney fees that are provided for that are left in this bill 
would be taken out of the bill with this amendment. It is not a good 
amendment from that standpoint. It is not reasonable to think that just 
the 25 percent will have the kind
 of effect that we need to have on frivolous lawsuits, fraudulent 
lawsuits, nonmeritorious lawsuits, and not the kind of effect we need 
to have that is provided in this bill to encourage greater settlement 
of these cases. The effect of this will be say, ``Yes, you might have 
to pay a little bit of attorney fees, but it's going to be you don't 
have to pay a lot.''

  For those reasons I would strongly urge that my colleagues defeat 
this amendment. This is not a good amendment from the standpoint of 
trying to do something about the explosion of litigation in this 
country.
  The fact is that the Girl Scouts; we have talked about all these big 
corporate defendants in this country. Well, one of the organizations 
that supports the legal reforms we have are the Girl Scouts, and the 
Girl Scouts' counsel here in Washington, DC, says that the first 87,000 
boxes of Girl Scout cookies that they have to sell goes to raise the 
$120,000 to pay their liability insurance. The effect of that is that, 
before one penny can be spent to help Girl Scouts with all the 
wonderful programs that Girl Scouts have, not one penny can be spent 
until they sell 87,000 boxes and raise $127,000 to deal with the 
liability.
  Little Leaguers are opposed, are in favor, of legal reforms because 
they know that it is becoming increasingly difficult to get people to 
participate in allowing them to use their fields for ball diamonds 
because of the fact that they face greater and greater exposure to 
lawsuits, and the loss of insurance, and the risk of being brought in 
as parties to these cases.
  This is not a problem that deals with corporate America alone. It 
certainly does add to the cost of consumer goods when corporations 
raise those prices to consumers. It certainly does have an effect on 
insurance companies when they raise insurance premiums to all Americans 
for their automobiles, for homeowners insurance, for any kind of 
insurance that we want to name. The costs are going up, and they are 
going up rapidly.
  Mr. Chairman, the cost of our litigation system in this country is 
rising at a faster rate than the cost of our medical system in this 
country, which we spent all of last year addressing----
  The CHAIRMAN. The time of the gentleman from Virginia [Mr. Goodlatte] 
has expired.
  (By unanimous consent, Mr. Goodlatte was allowed to proceed for 2 
additional minutes.)
  Mr. GOODLATTE. Mr. Chairman, the fact of the matter is that legal 
costs in this country are rising at a rate of 12 percent a year, far in 
excess, far in excess of what is happening even in the cost of medical 
care, but certainly three or four times the rate of inflation in this 
country.

                              {time}  1215

  And this amendment will reduce drastically the ability to use this 
provision to say, when you file a lawsuit, you take a risk. You have 
made the risk way too small, I would say to the gentleman from Indiana.
  Mr. BURTON of Indiana. Mr. Chairman, will the gentleman yield?
  Mr. GOODLATTE. I yield to the gentleman from Indiana.
  Mr. BURTON of Indiana. Let me just say that I think that a 25-percent 
penalty is an inducement for settlement. The gentleman keeps acting 
like it is nothing. Twenty-five percent of the legal fees of the 
defendant can be an awful lot of money, especially in a Federal case. 
We are not talking about peanuts. I think that this will dissuade 
people from going to trial, and it will force a settlement. The 
gentleman acts like if it is not 100 percent, it is not going to force 
a settlement.
  The other thing you are discounting is that if it is a frivolous 
case, the judge can start at the 25 percent and go all the way to the 
100 percent level. So you can have total loser pays.
  This is a good middle ground. It will dissuade people from going to 
court. It will force settlements. So I think the gentleman is 
overstating the case. It will not be as onerous as far as forcing 
settlements as 100 percent. But it certainly is going to force a lot of 
these people to settle out of court without going to trial. Twenty-five 
percent is a step in the right direction, and it still gives the judge 
latitude to go all the way to 100 percent. I think this is a good 
amendment.
  Mr. GOODLATTE. Reclaiming my time, I would say to the gentleman that 
the mechanism I offered to deal with the case where the plaintiff 
proves the case but has been unreasonable in their settlement 
negotiations and gives them some relief there would be something that 
would be tolerable. But 25 percent in all cases regardless of whether 
or not they are meritorious or not, we know that when discretion is 
given to judges in these cases----
  The CHAIRMAN. The time of the gentleman from Virginia [Mr. Goodlatte] 
has again expired.
  (By unanimous consent, Mr. Goodlatte was allowed to proceed for 2 
additional minutes.)
  Mr. GOODLATTE. When you take that in all cases and then ask the judge 
to give more, the history with rule XI sanctions is that it is very, 
very, very rarely done. And the attorneys know it, and they do not 
worry about rule XI sanctions because they know that the odds of them 
being applied to them are very, very remote. If you put this provision 
in, they are going to know that it is 25 percent. Maybe there is a 
remote chance of getting more, but it is not going to be 100 percent in 
the cases that it should be 100 percent in.
  Mr. BURTON of Indiana. Mr. Chairman, if the gentleman will continue 
to yield, I understand the gentleman does not think the judges will 
assess this additional 75 percent in a case where it is a flagrant 
example of a frivolous case. But I do not think I agree with that. At 
least there is 25 percent penalty, a flat 25 percent right off the top.
  Let me just say something about the amendment you referred to. The 
problem with your amendment that you suggested as an alternative, and 
it is a step in the right direction, is that it is 50 percent if the 
plaintiff gets less than 
 [[Page H2739]] the last best offer. But in the event he or she gets 
zero, they still pay 100 percent of the defendant's legal expenses. And 
in many cases, I wish the gentleman would just pay attention here for a 
second, in many cases, you may have a jury or a judge who for one 
reason or another does not like the way the plaintiff looks and they 
rule that they should not get anything and then they have to pick up 
100 percent of the cost.
  If the gentleman made this 50 percent across the board, I would 
accept it.
  Mrs. SCHROEDER. Mr. Chairman, will the gentleman yield?
  Mr. GOODLATTE. I yield to the gentlewoman from Colorado.
  Mrs. SCHROEDER. Mr. Chairman, I just wanted to say that I heard the 
gentleman citing the Girl Scouts, I just came from the Committee on 
Rules where they are citing the Girl Scouts. On Friday the Girl Scouts 
were on the front page of the Wall Street Journal saying please, 
please, this is not their legislation. Today in the Wall Street 
Journal, on the first section of section B, they are saying that once 
again. Let me quote, it says, ``It is not at all true, we have been 
harangued with frivolous lawsuits. That is absolutely not the case.''
  The CHAIRMAN. The time of the gentleman from Virginia [Mr. Goodlatte] 
has expired.
  (On request of Mrs. Schroeder, and by unanimous consent, Mr. 
Goodlatte was allowed to proceed for 30 additional seconds.)
  Mrs. SCHROEDER. Mr. Chairman, if the gentleman will continue to 
yield, that is what the head of the Girl Scouts says. Having been a 
Girl Scout, when I was younger, the one thing they believe in is in 
truth. It says, ``Truth has been the first casualty.'' I really wish 
Members would stop citing the Girl Scouts, when they have been 
frantically trying over and over again to say they have not been 
inundated with frivolous lawsuits and you do not have to sell all of 
those cookies to pay this off. They really would like to get that out 
there. So I really think we ought to stop calling this the Girl Scout 
cookie bill because the Girl Scouts do not want that name.
  The CHAIRMAN. The time of the gentleman from Virginia [Mr. Goodlatte] 
has again expired.
  (By unanimous consent, Mr. Goodlatte was allowed to proceed for 1 
additional minute.)
  Mr. GOODLATTE. Mr. Chairman, I thank the gentlewoman for her 
comments. The fact of the matter is, the representative of the Girl 
Scouts here in the Washington Area District Girl Scout Council told me 
this personally, 87,000 boxes of cookies sold to raise $120,000 to pay 
liability insurance before they ever can spend a penny on anything 
else.
  Mrs. SCHROEDER. Mr. Chairman, if the gentleman will continue to 
yield, I assume that the national office keeps those records. I think 
what happens here, it is like the old game we used to play in Girl 
Scouts called telephone. I think probably some of the leaders have 
heard that passed along. The national Girl Scout office has said that 
is not true.
  Mr. GOODLATTE. Reclaiming my time, the representative of the Girl 
Scouts for the Washington District Council told me and a number of 
other Members of Congress and others personally that that was the fact. 
I am not representing that as something I know personally. I am 
representing it as what was told to me by a representative of the Girl 
Scouts.
  Mrs. SCHROEDER. Mr. Chairman, I move to strike the requisite number 
of words.
  I just want to quickly answer that I think in all honesty that we 
ought to be listening to the Wall Street Journal which has now made two 
passes at that. We also ought to be listening to the National Girl 
Scout office of New York which would be handling those complaints. I 
think that that is very key. They have said this over and over again. 
This whole debate is full of all sorts of stories that get blown out of 
proportion.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Indiana [Mr. Burton].
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             recorded vote

  Mr. BURTON of Indiana. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 202, 
noes 214, not voting 18, as follows:
                             [Roll No 204]

                               AYES--202

     Ackerman
     Andrews
     Baesler
     Baker (LA)
     Baldacci
     Barcia
     Barrett (WI)
     Bateman
     Becerra
     Beilenson
     Bentsen
     Berman
     Bevill
     Bilirakis
     Bishop
     Bonior
     Borski
     Boucher
     Browder
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Burton
     Buyer
     Cardin
     Chapman
     Clay
     Clayton
     Clement
     Clyburn
     Coleman
     Collins (IL)
     Conyers
     Costello
     Coyne
     Cramer
     Danner
     Davis
     de la Garza
     Deal
     DeFazio
     DeLauro
     Dellums
     Deutsch
     Diaz-Balart
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Doolittle
     Doyle
     Duncan
     Durbin
     Edwards
     Ehrlich
     Engel
     English
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Foglietta
     Ford
     Fox
     Frank (MA)
     Frost
     Furse
     Gephardt
     Gilman
     Gonzalez
     Gordon
     Graham
     Green
     Greenwood
     Gutierrez
     Hall (OH)
     Hamilton
     Harman
     Hastings (FL)
     Hayes
     Hefner
     Hilliard
     Hinchey
     Holden
     Hoyer
     Hunter
     Jackson-Lee
     Jacobs
     Johnson (SD)
     Johnson, E. B.
     Johnston
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kleczka
     Klink
     LaFalce
     Lantos
     Laughlin
     Levin
     Lewis (GA)
     Lincoln
     Lipinski
     Livingston
     Lofgren
     Longley
     Lowey
     Luther
     Maloney
     Manton
     Markey
     Martinez
     Martini
     Mascara
     Matsui
     McCarthy
     McCollum
     McDermott
     Meehan
     Menendez
     Mfume
     Miller (CA)
     Mineta
     Minge
     Moakley
     Mollohan
     Moran
     Morella
     Murtha
     Myers
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Pelosi
     Peterson (FL)
     Pomeroy
     Poshard
     Quillen
     Rahall
     Reed
     Regula
     Reynolds
     Richardson
     Rivers
     Roemer
     Ros-Lehtinen
     Rose
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Sawyer
     Schroeder
     Schumer
     Scott
     Serrano
     Skaggs
     Skelton
     Slaughter
     Spratt
     Stark
     Stokes
     Studds
     Stupak
     Tanner
     Tejeda
     Thompson
     Thornton
     Thurman
     Torres
     Torricelli
     Towns
     Traficant
     Tucker
     Velazquez
     Vento
     Visclosky
     Volkmer
     Ward
     Watt (NC)
     Waxman
     Williams
     Wilson
     Wise
     Woolsey
     Wyden
     Wynn
     Yates

                               NOES--214

     Abercrombie
     Allard
     Archer
     Armey
     Bachus
     Baker (CA)
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bereuter
     Bilbray
     Bliley
     Blute
     Boehlert
     Boehner
     Bonilla
     Bono
     Brewster
     Brownback
     Bryant (TN)
     Bryant (TX)
     Bunn
     Bunning
     Burr
     Callahan
     Calvert
     Camp
     Canady
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Chrysler
     Clinger
     Coble
     Coburn
     Collins (GA)
     Combest
     Cooley
     Cox
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     DeLay
     Dickey
     Dreier
     Dunn
     Ehlers
     Emerson
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Gallegly
     Ganske
     Gekas
     Geren
     Gilchrest
     Gillmor
     Goodlatte
     Goodling
     Goss
     Gunderson
     Gutknecht
     Hall (TX)
     Hancock
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Horn
     Hostettler
     Houghton
     Hutchinson
     Hyde
     Inglis
     Istook
     Johnson (CT)
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     King
     Kingston
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Linder
     LoBiondo
     Lucas
     Manzullo
     McCrery
     McHale
     McHugh
     McInnis
     McIntosh
     McKeon
     McNulty
     Metcalf
     Meyers
     Mica
     Miller (FL)
     Mink
     Molinari
     Montgomery
     Moorhead
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Oxley
     Packard
     Parker
     Paxon
     Payne (VA)
     Peterson (MN)
     Petri
     Pickett
     Pombo
     Porter
     Portman
     Pryce
     Quinn
     Radanovich
     Ramstad
     Riggs
     Roberts
     Rohrabacher
     Roukema
     Royce
     Salmon
     Sanford
     Saxton
     Scarborough
     Schaefer
     Schiff
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shays
     Shuster
     Sisisky
     Skeen
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stump
     Talent
     Tate
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Tiahrt
     Torkildsen
     Upton
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     [[Page H2740]] Weldon (FL)
     Weller
     White
     Whitfield
     Wicker
     Wolf
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                             NOT VOTING--18

     Collins (MI)
     Condit
     Dornan
     Flake
     Funderburk
     Gejdenson
     Gibbons
     Jefferson
     McDade
     McKinney
     Meek
     Orton
     Rangel
     Rogers
     Roth
     Stockman
     Waters
     Weldon (PA)

                              {time}  1241

  The Clerk announced the following pair:
  On this vote:

       Mr. Flake for, with Mr. Jefferson against.

  Messrs. BRYANT of Texas, CREMEANS, TAYLOR of Mississippi, SISISKY, 
and PORTER changed their vote from ``aye'' to ``no.''
  Messrs. MYERS of Indiana, RICHARDSON, and TORRES changed their vote 
from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
                    amendment offered by mr. conyers

  Mr. CONYERS. Mr. Chairman, I offer an amendment that has been 
redesignated the Conyers-Nadler amendment.
  The CHAIRMAN. The Clerk will report the amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Conyers: Page 6, after line 24, 
     insert the following:
       (e) Limitation on Application of Amendments.--The 
     amendments made by this section shall not apply with respect 
     to civil actions to which any of the following applies:
       (1) Section 772 of the Revised Statutes of the United 
     States (42 U.S.C. 1988).
       (2) Title VII of the Civil Rights Act of 1964 (42 U.S.C. 
     2000e et seq.).
       (3) The Fair Housing Act (42 U.S.C. 3601 et seq.).
       (4) The Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.).
       (5) The Equal Access Act (20 U.S.C. 4071 et seq.).
       Rule 11 of the Federal Rules of Civil Procedure, as in 
     effect immediately before the effective date of such 
     amendments, shall apply with respect to such civil actions.

  Mr. CONYERS (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Chairman, this is an amendment which has been 
referred to indirectly throughout the debate, and it might gather the 
support of the manager of the bill on the other side. I will present it 
and hope that it does.

                              {time}  1245

  I want to thank the gentleman from New York [Mr. Nadler], my 
colleague on the committee, for his work on a very important part of 
this bill.
  This is an amendment that would preserve our citizens' hard-earned 
right to protect their civil and other constitutional rights including 
religious rights.
  What we are doing essentially is exempting civil rights cases, 
religious cases, and gender cases from the bill in terms of attorney 
sanctions and payments. This leaves the decision on the merit in the 
hands of the courts.
  The people of this country, the Members of this body, have fought too 
long and hard for religious and civil rights groups in this country to 
see these precious rights slip away in a little-noticed procedural 
provision in the Contract With America.
  My amendment would safeguard these rights by providing that cases 
involving religious, racial, and gender discrimination can be brought 
without undue fear of chilling legal sanctions. Importantly, the 
amendment would allow rule 11 as it currently exists to provide for 
discretionary court-imposed sanctions to continue to apply in civil 
rights and religious cases. This contrasts with the mandatory court 
sanctions which are contained in the bill before us.
  This is a very important distinction because we have a list of 
lawsuits and attorneys that have been sanctioned under this measure, in 
a disproportionately large amount of civil rights cases and religious 
cases. The attorneys have been brought to heel under rule 11, and we 
are very, very much afraid of what would happen if we would change this 
to mandating the court to impose these sanctions.
  In cases where our citizens have to go to court to protect their 
constitutional rights, it is imperative that we have as open and fair a 
court procedure as possible. While rule 11 may have some limited role 
to play in these cases, it should not have a dominant or overreaching 
role as would be the case under this bill.
  I remind the Members of the fire storm that erupted on Capitol Hill 
as a result of a 1992 Supreme Court decision, in Employment Division 
versus Smith, where the court discarded decades of free exercise 
jurisprudence by holding that the free exercise clause does not relieve 
individuals of obligations to comply
 with supposedly neutral laws that restrict their freedom of religion.

  How would this occur? What we would do under H.R. 988 is make it more 
difficult for courageous citizens to bring legal actions to redeem 
their constitutional rights. It would mandate that litigants pay the 
other side's legal fees whenever a legal pleading was somehow shown to 
be unworthy. It would completely remove any equitable discretion by the 
courts. It also would create a great amount of contention among the 
parties.
  I want to just tell Members a little bit about where rule 11 has come 
from over the years. We have got a number of studies, but one from the 
Georgetown Law Journal by Professor Nelken found that 22 percent of the 
rule 11 motions between 1983 and 1985 were filed in civil rights cases, 
even though these cases comprised only 7 percent of the civil docket.
  At Fordham University, there was a study that in all reported cases 
from 1983 to 1987, rule 11 sanctions against civil rights plaintiffs 
were imposed at a rate of 17 percent greater than against all other 
plaintiffs.
  In other cases, we found that the safe harbor provision in rule 11 
now was very important and should be preserved.
  Please support this civil rights amendment.
  Mr. MOORHEAD. Mr. Chairman, I rise in opposition to the amendment 
offered by the gentleman from Michigan [Mr. Conyers].
  If I thought for 1 minute that rule 11 sanctions had fallen 
disproportionately on civil rights attorneys I would have crafted an 
amendment exempting them, but that's not the case.
  The 1991 Federal Judicial Center study on the operation and impact of 
rule 11 was designed to examine several of the questions about the 
effects of the rule. The study found:
  While the incidence of rule 11 activity has been higher in civil 
rights cases than in some other types of cases, the imposition rate of 
sanctions in civil rights cases has been similar to that in other 
cases.
  The study found that rule 11 had not been invoked or applied 
disproportionately against represented plaintiffs and their attorneys 
in civil rights cases.
  The FJC concluded that rule 11 has not interfered with creative 
advocacy or impeded the development of the law.
  Professor Maurice Rosenberg, Columbia University School of Law, 
reviewed a subset of sanctioned civil rights cases and commented in his 
1990 testimony to the Committee on Rules and Practice and Procedure:

       Many complaints strain hard to pretend they involve civil 
     rights claims so that, for example, attorneys' fees may 
     accompany a successful or partially successful outcome.
       If a complaint alleges that the towing away of plaintiff's 
     car by the police or the refusal of the San Francisco 
     authorities to allow softball to be played on the hardball 
     field violated the plaintiff's civil rights, is that claim 
     correctly counted as a ``civil rights action?'' That 
     designation covers a wide assortment of grievances, many of 
     which are pressed in order to break new legal ground or, as 
     suggested above, for ulterior purposes.

  Finally, the issue of fair administration of rule 11, like many other 
procedural issues, depends upon the fairness and competence of the 
Federal judiciary. When properly applied, rule 11 should not unjustly 
deter litigation by civil rights plaintiffs or any other group.
  I urge a ``no'' vote on the amendment.
  Mr. CONYERS. Mr. Chairman, will the gentleman yield?
  Mr. MOORHEAD. I yield to the gentleman from Michigan.
  Mr. CONYERS. I thank the gentleman for yielding. Is he aware that the 
Judicial Conference studied the rule in 1989 after 16 experts and they 
made the two changes? First they 
 [[Page H2741]] made the change that would leave the sanctions to the 
court's discretion and they created this safe harbor passage for rule 
11 motions for 21 days.
  This has been working very, very effectively and has cured the 
problem that I was pointing out to you, that there is no question that 
before that, we had a serious problem of civil rights and religious 
rights organizations' lawyers being sanctioned.
  Is the gentleman familiar with the procedure, the change that rule 11 
underwent?
  Mr. MOORHEAD. Senior U.S. District Judge Milton Shadur of the 
northern district of Illinois said he generally would welcome the 
restoration of the old rule.
  ``The most recent changes watered it down,'' he says, ``by offering 
an out for lawyers who get caught when filing frivolous pleadings.''
  ``At this point rule 11 is pretty much dead,'' he said.
  That dealt with what was done with these amendments that you are 
talking about. We are putting it back in as rule 11 was for 10 solid 
years, and virtually all of the judges across the country believed it 
helped them and it brought a better quality of justice to the courts.
  Mr. CONYERS. If the gentleman would yield a final time, the gentleman 
was aware that this was studied by the Judicial Conference, went to the 
Supreme Court, passed muster there, is working very well. We are 
talking about December 1993. This is a very premature decision for us 
without sending it back up the chain of command for rulemaking in the 
Federal judiciary to snatch the discretionary sanction of the judge 
away from him after such a short notice.
  I would urge the gentleman to realize the seriousness of what he is 
proposing here in opposing this very modest rulemaking sanction that I 
am modifying.
  We are not eliminating rule 11. We are just saying the judge would 
have the discretion that he had as a result of all the work the judges 
did in 1993.
  Mr. NADLER. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, I rise in support of this amendment to exempt civil 
rights lawsuits from the mandatory rule 11 provision of the bill and to 
leave it up to the discretion of the judges. I hope that some of the 
gentlemen on the other side will listen to what I am about to say 
because I do not think it has been said before.
  Last year, we passed the Religious Freedom Restoration Act to undo 
the Supreme Court decision in the Smith case. There are a number of 
other court decisions narrowing religious freedom which have not been 
undone and which people seek to try to challenge for reconsideration in 
court.
  For example, there are a number of decisions narrowing the Religious 
Accommodations Act which various religious groups want to litigate as 
well as to try to get this Congress to change.
  A memo that I have here from the Christian Legal Society says, for 
example, an attorney arguing a religious discrimination case and urging 
the courts to reject the reasoning in any of the existing cases could 
well be subject to the rule 11 sanctions as contained in this bill. The 
litigation route presently presents the only opportunity religious 
individuals will have to seek relief in employment discrimination 
cases. On this basis, and on the basis of the inclusion in the 
amendment to the Equal Access Act, the Christian Legal Society and the 
National Association of Evangelicals will support the amendment.
  I have here, Mr. Chairman, and I hope the gentleman from California 
will pay attention to this so we can comment on it, a letter from the 
Christian Legal Society and the National Association of Evangelicals in 
support of this amendment, and I am going to read excerpts from it.

       On behalf of the Christian Legal Society's Center for Law 
     and Religious Freedom and the Public Affairs Office of the 
     National Association of Evangelicals, we express our full 
     support for any amendment that would exempt civil rights 
     suits including those under the Equal Access Act and the 
     Religious Freedom Restoration Act from this bill's purview.
       The history of religious liberty demonstrates that the 
     powerless sometimes must look to the courts in cases that 
     ``push the envelope'' of the law in order to vindicate our 
     most precious freedoms in ways that existing law does not. We 
     are concerned that mandatory sanctions will discourage the 
     bringing of meritorious religious claims, not just frivolous 
     ones. The first freedom of the first amendment is too 
     precious to risk such a chilling effect. Any interest in 
     judicial efficiency is far outweighed by our duty to keep 
     open the doors of the Federal judiciary to such cases.
       Moreover, the preemptive effect of this bill is unnecessary 
     in civil rights cases. Unlike commercial lawsuits, people 
     rarely sue the government merely seeking a nuisance 
     settlement. The few who do can still be dealt with under a 
     discretionary rule 11. Federal judges have not shown that 
     they need to have their judgment handcuffed in this way, at 
     least not in civil rights litigation.
       For any and all of these reasons, we support your amendment 
     to section 4 of H.R. 988.
       Thank you, * * *.
       Respectfully yours, Steven T. McFarland, Director, Center 
     for Law and Religious Freedom of the Christian Legal Society, 
     and Forest Montgomery, General Counsel,
      Office of Public Affairs for the National Association of 
     Evangelicals.

  Mr. Chairman, I think this graphically shows why it is necessary to 
adopt this amendment if we are going to take our usual protective 
attitude toward religious liberty. I do not agree with this bill in 
general and I do not agree that we need to have mandatory rule 11 
sanctions. But even many of those who do agree with that I would hope 
could recognize the distinction on civil rights and religious liberty 
cases. If someone is suing on a products liability case or a contract 
case or whatever, if you have a defendant with deep pockets, there are 
nuisance lawsuits, there are occasions where people will file frivolous 
claims, but if you are filing a constitutional claim on religious 
liberty, on religious accommodation, you are not going to have 
frivolous claims. No one is going to deliberately bring a frivolous 
religious liberty claim, rarely. We have not seen that problem in the 
courts and where we do, if we ever do, the nonmandatory, the 
discretionary rule 11 sanction could do. But to make a mandatory rule 
11 sanction here when the religious liberty attorneys are going to have 
to be trying to persuade a court to change the existing precedent, to 
push the envelop is going to have a real chilling effect on that, and I 
do not think we need a real chilling effect on religious liberty.
  I would hope that there would be reconsideration on this amendment 
and that it would pass.

                              {time}  1300

  The CHAIRMAN. The time of the gentleman from New York [Mr. Nadler] 
has expired.
  (At the request of Mr. Moorhead and by unanimous consent, Mr. Nadler 
was allowed to proceed for 3 additional minutes.)
  Mr. NADLER. I yield to the gentleman from California
  Mr. MOORHEAD. Mr. Chairman, I think a lot of argument here is based 
upon a misunderstanding of what the law is presently and what we are 
doing to it.
  Under sanctions in the present law it says if on a notice and a 
reasonable opportunity to respond the court determines that a 
subdivision had been violated the court may, subject to conditions 
stated below, impose an appropriate sanction upon the attorneys, law 
firms or parties who have violated subdivision (b) or are responsible 
for action. We changed that ``may'' to ``shall.'' But there is an awful 
lot of discretion there in the finding of whether there is a violation 
or not, and what any kind of a sanction, mild or otherwise, there 
should be. But that is present law.
  We do take out of the bill the opportunity under motion to at the 
last minute, after it has been found they have violated the code by 
putting in amendments and other pleadings that should not be there, we 
give them 21 days to change their position, but that is after you are 
caught with the cookie jar in your hand, we say that they can change 
that. We have taken that 21-day grace period out and that is 
principally what the bill does to begin with.
  I would like to say this as far as the National Association of 
Evangelicals and the Christian Legal Society. I have great respect for 
them. I have worked with them on many, many occasions. I think I have a 
100-percent voting record with them, so I am not putting them down or 
anything else. But I do not think they understand what this is all 
about.
  Mr. NADLER. Reclaiming my time, sir, I think they do understand. We 
do 
 [[Page H2742]] not have a problem with the present law. But of course 
this bill would change the present law and what the Christian Legal 
Society and the National Association of Evangelicals are saying and 
what other religious groups that I have been speaking to in the last 
few days have said to me, is that making mandatory rule 11 sanctions, 
making it mandatory would have a chilling effect in this area. It may 
have a chilling affect in other areas and we are not talking about 
them. We do not have a problem with frivolous suits in civil rights and 
other areas and they are looking at pushing the envelop and they are 
very concerned about that.
  Mr. MOORHEAD. If the gentleman will yield, that is of course not what 
this amendment is all about. It exempts a number of different acts of 
Congress from any portion of this thing which is certainly not in the 
present law, nothing that we have talked about before.
  I will say this, as far as the National Association of Evangelicals 
who I know very well, they have not come in and testified, they have 
not commented to me about this in any way if they have a problem.
  Mr. WATT of North Carolina. Mr. Chairman, I move to strike the 
requisite number of words.
  Mr. Chairman, I will struggle on this issue to be nonemotional. I 
will struggle because I remember 25 years ago the very day I returned 
to North Carolina to practice law in what was regarded and is regarded 
as a civil rights law firm. In the middle of the night someone came and 
set a fire to the law firm office before I had practiced law in that 
office one day.
  I will struggle because I have seen how much courgage it takes for a 
plaintiff or a group of plaintiffs to come forward in the face of 
racial oppression and assert their civil rights.
  I will struggle because I have been before judges, 99 percent of whom 
I would remind my colleagues here are members of the majority race in 
this country, and I have heard them not understand the underlying basis 
of a civil rights claim because they have no history to relate that 
claim to, and to have them in the final analysis find that some portion 
of the claim is frivolous because they just simply cannot relate to 
people being abused and having their rights abused in that way.
  My colleagues, this is not about some kind of theoretical fear that 
is being expressed here. There is a concern with frivolous lawsuits, 
but I remind my colleagues that in this amendment, and I want the 
gentleman from California to read the amendment, starting at line 9 of 
the amendment it specifically says ``rule XI of the Federal Rules of 
Civil Procedure as in effect immediately before the effective date of 
such amendments shall apply with respect to such civil actions.'' This 
is not doing away with rule XI.
  I have heard my colleague here, the gentleman from Michigan [Mr. 
Conyers], read without anybody paying attention, apparently, the 
disparity in the percentages of frivolous and sanction cases that exist 
in civil rights cases, 7 percent of the cases yielding a substantially 
disproportionate share of the sanctions. But I will remind my 
colleagues that nobody comes forward in the South in the time in which 
I grew up and brought forward any kind of frivolous civil rights 
action. It took courage. It took running the risk that your House would 
be burned down; it took running the risk that your law office would be 
burned down; it took running the risk that your friends down the street 
who call you Mr. Charlie would not speak to you again if you brought to 
light the fact that the employer down the street was discriminating on 
the basis of race in hiring of people.
  This is not some theoretical concern that is being expressed in this 
amendment. I beg of my colleagues to take this amendment seriously, and 
vote it up and agree to put this exception in, and provide the kind of 
protection that these hardworking people, these law-abiding people who 
simply want to have their civil rights vindicated are bringing to the 
courts.
  Mr. SCOTT. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I want to add just one other point to this very briefly 
and that is that you could go through all of that what the gentleman 
from North Carolina said, and in fact you could have a winning lawsuit 
and still be forced to pay opposing attornerys' fees if you come in 
under an offer made sometime during the middle of trial.
  Mr. Chairman, the reason that we have attorneys' fees provided in 
these kinds of cases is that the damage, the financial damage is 
ususally so small that you have an empty promise in discrimination laws 
if this amendment is not passed. The empty promise without attorneys' 
fees is you go to court and you will pay more than you could possibly 
get.
  I would hope that this amendment would pass, would keep the law as it 
is, and that people who are discriminated against be vindicated and 
have those rights vindicated in court.
  Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
  Mr. SCOTT. Mr. Chairman, I yield to the gentleman from Virginia.
  Mr. GOODLATTE. I thank the gentleman for yielding.
  Just a point of winning a law suit and still being required to pay 
attorney's fees, this would not apply to any of these actions, would it 
not, because these are all Federal question issues and would not come 
up under the modified losers pay provisions in the bill which only 
apply to diversity cases?
  Mr. SCOTT. If you are calling it a Federal question, then the passage 
of this amendment would have no effect in the gentleman's 
interpretation.
  Mr. GOODLATTE. I agree with that; but they are two different types of 
actions. They are mutually exclusive of each other.
  Mr. SCOTT. Mr. Chairman, I would say to the gentleman if that is his 
interpretation, then the passage would do no harm to the bill and it 
ought to be adopted just to make sure.
  Mr. GOODLATTE. Mr. Chairman, if I can follow up because the comments 
of the gentleman from North Carolina are indeed impressive, is there 
something about, and this is what troubles me from my side, is there 
something about an attorney or an individual who misbehaves with one of 
those cases and incurs sanctions that would differ from somebody, 
regardless of their background, regardless of their race or age or sex 
or anything else in any of the other areas where we apply the ``shall'' 
provision, which is what the amendment does, instead of the ``may'' 
provision, which is what the gentleman wants to preserve for these 
particular issues?
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. SCOTT. I yield to the gentleman from North Carolina.
  Mr. WATT of North Carolina. Mr. Chairman, I thank the gentleman for 
yielding.
  I would just simply say to the gentleman, there is a predisposition, 
there is a disposition, and fortunately over time it is beginning to 
wane I would acknowledge, and I do not want to leave the impression 
that our whole Federal or State benches are still where they were 15 or 
20 years ago, but I would submit to the gentleman that in these cases 
there is a substantially higher likelihood that goes beyond 
insignificant statistical probability, if you go back and look at the 
statistics that the gentleman from Michigan [Mr. Conyers] was talking 
about, that a finding of frivolousness is going to be found in these 
cases.
  Mr. GOODLATTE. Does the gentleman think that is changed based upon 
changing it from ``may'' to ``shall''? I mean, if there is a 
discriminatory predisposition that the gentleman describes, would that 
not also be likely to occur in a circumstance where the judge has the 
discretion under the law as it exists now?
  Mr. WATT of North Carolina. If the gentleman will yield further, I 
think what the gentleman is doing is sanctioning by this bill that kind 
of attitude, and giving latitude to it by saying you shall make, you 
shall do this; and the finding of frivolousness that there will be an 
inclination to do it anyway, and once you add on to it the word 
``shall'' what we have done here is sanctioned that kind of attitude.
  At least under the other standard we can at least try to get in the 
head of the judge and say look, Judge, you are applying a different 
standard in noncivil rights cases than you are in civil rights cases 
and try to embarrass him. But once you give him that extra little piece 
of ammunition, the ``shall'' in this bill, you have given that judge 
 [[Page H2743]] who may be inclined, the literary license he needs to 
abuse the system.
  Mr. SCOTT. Mr. Chairman, in summary I think I do not want to get away 
from the point this is a decision a person has to make before they even 
have the nerve to come forward, and this is just one more barrier to 
scaring them and daring them to come forth and vindicate their rights 
in court.
  Ms. NORTON. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I come forward as a former chair of the Equal 
Employment Opportunity Commission, very disquieted that in this bill 
mandatory sanctions could apply to civil rights actions, and disquieted 
on the basis of the record.
  First, I ask my colleagues to be consistent. We have already exempted 
civil rights matters from the unfunded mandates bill and from the 
Regulatory Transition Act. Let us repeat that consistency here.
  Why did we do it there and why should we do it here?

                              {time}  1315

  Civil rights actions are very difficult to bring. They always have 
been. They are more difficult to bring today than they were 30 years 
ago when the acts were passed. At that time getting an attorney was 
more likely because the discrimination was so widespread, and on the 
surface there was a bar, a private bar, that developed. Ten years after 
the act, when I came to chair the EEOC, that bar had virtually 
disintegrated. The reason is that when lawyers take an action under a 
civil rights case, they are taking a very large chance. They are hoping 
to get their fees back. They have to borrow money in order to mount a 
substantial case.
  So if there is any hurdle in the way, what we found, even 10 years 
after the act--and we find 30 years after the act now--they hesitate 
and the bar itself simply was not available.
  First of all, for a person to come forward, that plaintiff has to 
make a very difficult decision. She is almost always going against 
power. Who are the plaintiff's lawyers in the first place? These are 
usually small practitioners going up against counsel from large 
corporations. These people have lawyers on staff that can file endless 
motions to tie up these small practitioners whom we have said we want 
to bring these cases in order to vindicate civil rights.
  Do we want people to bring these cases, or do we not want people to 
bring these cases? We have said in these two previous bills we do not 
need to destroy or disassemble the civil rights superstructure that we 
have put in place. We have not been inconsistent here.
  Civil rights actions are different in all kings of ways. For example, 
for most of those actions, punitive damages are not available. 
Compensatory damages are often unavailable. Under Title VII, all you 
can get is your back pay. Most of these cases are settled by the time 
the case gets to court. The case has gone through some kind of 
conciliation often, or at least there has been an attempt to settle the 
case.
  If we want to chill the right to bring a civil rights action, then we 
go back to these mandatory sanctions. I do not know where we could find 
a lawyer, almost all of them small practitioners, willing to come 
forward under these circumstances.
  Mr. Chairman, the courts are very experienced. They know how to 
handle cases that are frivolous in the civil rights area. There have 
been hundreds of thousands of civil rights cases. This is a unique area 
of the law. We have encouraged people to come forward. We have 
continued to do so in the 104th Congress with the two bills I have 
named, the unfunded mandates bill and the Regulatory Transition Act.
  I ask my colleagues please to be consistent. Let us stay together yet 
again on a civil rights provision. Let us support the Conyers 
amendment.
  Mr. ABERCROMBIE. Mr. Chairman, I move to strike the requisite number 
of words.
  Mr. Chairman, yesterday I spoke in my opposition to this bill in 
general, and I will speak in favor of this amendment at least.
  Mr. Chairman, I am sad to report that one of the great intellects, 
one of the great playwrights of the 20th century, died less than 3 
weeks ago, Robert Bolt. Robert Bolt wrote ``A Man for All Seasons,'' 
and I commend that to my colleagues who are contemplating voting for 
this bill let alone voting against this amendment.
  Let me quote very briefly from the body of the work, ``A Man for All 
Seasons.'' As you may recall, this is about Sir Thomas More.
  Sir Thomas More found himself in the position of having to defend the 
church, and there was an argument over religious freedom. And this was 
not the kind of argument that we may be having here today. He was 
having an argument with his prospective son-in-law, a man named William 
Roper. William Roper is described by Robert Bolt in a manner that I 
think might fit some of the people who are not thinking clearly about 
this today: ``William Roper, a stiff body in an immobile face with 
little imagination and moderate brain but an all too consuming 
rectitude, which is his cross, his solace, and his hobby.'' And I feel 
we have many people here like that today, Mr. Chairman.
  So when Sir Thomas More was confronting his prospective son-in-law, 
young Mr. Roper, when Roper wanted to have someone seized and arrested 
because of their views, Roper says, ``There is! God's law.''
  And Sir Thomas More said, ``Then God can arrest him.''
  Then Roper said this is ``sophistication upon sophistication''--the 
kind of argument we are hearing on this floor today.
  And More said, ``No, sheer simplicity. The law, Roper, the law. I 
know what's legal not what's right. And I'll stick to what's legal.''
  ``Then you set man's law above God's!
  ``No, far below; but let me draw your attention to a fact--I'm not 
God. The currents and eddies of right and wrong, which you find such 
plain sailing, I can't navigate. I'm no voyager. But in the thickets of 
the law, oh, there I'm a forester. I doubt if there's a man alive who 
could follow me there, thank God.''
  And if he should go, ``if he was the Devil himself, until he broke 
the law!''
  Then Roper says, ``So now you'd give the Devil benefit of law!''
  Then Sir Thomas More said, ``Yes. What would you do? Cut a great road 
through the law to get after the Devil?''
  Roper said, ``I'd cut down every law in England to do that.''
  More said, ``Oh? And when the last law was down, and the Devil turned 
round on you--where would you hide, Roper, the laws all being flat? 
This country's planted thick with laws from coast to coast--man's laws, 
not God's--and if you cut them down--and you're just the man to do it--
d'you really think you could stand upright in the winds that would blow 
then? Yes, I'd give the Devil benefit of law, for my own safety's 
sake.''
  Mr. Chairman, we need to give the Devil the safety of law for our own 
benefit, for our own safety's sake. And on the question of religious 
freedom, how can we even be contemplating such a change as is being 
imagined in the underlying law which we are proposing to pass in this 
bill?
  When the last law is down and the Devil turns on you, where will we 
hide?
  Loser pays. Loser pays is a vestige of this history in England, and 
in which class warfare prevails. This is the aristocrats against the 
commoners. That is exactly what it is all about.
  No one in good conscience, if they are going to think today, can find 
themselves resisting this amendment, and I hope and I pray that Members 
will think further upon what we are doing here.
  I know the gentleman from California [Mr. Moorhead] as a colleague. I 
have had the opportunity to speak with him. I respect him. I think he 
is among the most decent persons that I have met in the Congress. I 
respect his civility. Some of the people I have talked to about this 
bill I respect as libertarians.
  The CHAIRMAN. The time of the gentleman from Hawaii [Mr. Abercrombie] 
has expired.
  (By unanimous consent, Mr. Abercrombie was allowed to proceed for 2 
additional minutes.)
  Mr. ABERCROMBIE. Mr. Chairman, I find myself discussing this not as a 
question of partisanship, not as a question of Democrats versus 
Republicans. 
 [[Page H2744]] I do not find myself in a position, Mr. Chairman--and I 
refer again to my good friend, the gentleman from California, and some 
of the others I have discussed this with--of looking at this even as a 
question of winners and losers. On the particular issue, I think we are 
ill-served by this contract.
  This is not a question of loser pays in regard to clients and 
lawyers. This is a question of whether we are losing as freedom-loving 
individuals. Some of my libertarian friends that I have on the other 
side of the aisle find themselves stumbling for an explanation to me as 
to how they can be for this. This is the ultimate defense of the 
individual against the State.
  Mr. DURBIN. Mr. Chairman, will the gentleman yield?
  Mr. ABERCROMBIE. Yes, I yield to the gentleman from Illinois.
  Mr. DURBIN. Mr. Chairman, the gentleman has given the most classic 
conservative argument I have ever heard. He is asking for us to protect 
our rights as individuals against forces that otherwise would prevail, 
whether they are the power of government or the power of wealth. The 
reference he has made to ``a man for all seasons'' is one of my 
favorites. I thank the gentleman for bringing it into this debate.
  Mr. ABERCROMBIE. Mr. Chairman, I thank the gentleman.
  As I bring this up, let me say that I make it a practice of reading 
this play at least once a year to remind myself of why I am in the 
Congress. This is one of the reasons why I am here, and I want to tell 
the Members that this debate has energized me. Sometimes I get up tired 
in the morning, and I am sure we all have done that. I read in the Post 
today how tired we all are because we have been moving at a fast pace. 
That is all right. I do not mind myself, but I realize I am here 
dealing with the fundamentals, not just me but all of us here, my dear 
friends and colleagues. We are dealing with the fundamentals. This is 
what this is all about.
  More paid with his head. More paid with his head for standing up for 
freedom. We will not have to do that today. This is my political head 
or your political head. What difference does that make? Nobody is going 
to be shot coming out of this Chamber. Nobody is going to be arrested 
under these circumstances, not coming out of here. But it is not 
rhetoric for those whom it affects. And when it comes to religion, this 
is the first, Mr. Chairman. The first of all our amendments, Mr. 
Chairman, is freedom of religion, Minus this, we lose the entire basis 
of what the United States and democracy is all about.
  I plead with the Members, please, to examine the basis of what we are 
doing here. It is not important to pass everything. It is not important 
to say yes, every ``i'' was dotted and every ``t'' was crossed in this 
contract, regardless of how we have come to feel about it. That is why 
we are having this debate.
  I wish we had had more time in the committee hearing, but we did not. 
I appeal to the Members, at least on this amendment, please realize 
that the basis is not Democrat versus Republican. It is a matter of 
standing up for the fundamentals, standing up for the freedom of the 
people of the United States.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Michigan [Mr. Conyers].
  The question was taken; and the Chairman announced that the ayes 
appeared to have it.


                             recorded vote

  Mr. MOORHEAD. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 194, 
noes 229, not voting 11, as follows:

                             [Roll No. 205]

                               AYES--194

     Abercrombie
     Ackerman
     Andrews
     Baldacci
     Barcia
     Barrett (WI)
     Becerra
     Beilenson
     Bentsen
     Berman
     Bevill
     Bishop
     Bonior
     Borski
     Boucher
     Browder
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Bryant (TX)
     Chapman
     Clay
     Clayton
     Clement
     Clyburn
     Coleman
     Collins (IL)
     Collins (MI)
     Conyers
     Costello
     Coyne
     Cramer
     Danner
     Davis
     de la Garza
     DeFazio
     DeLauro
     Dellums
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Doyle
     Durbin
     Edwards
     Ehlers
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Foglietta
     Ford
     Fox
     Frank (MA)
     Frost
     Furse
     Gejdenson
     Gephardt
     Geren
     Gilman
     Gonzalez
     Goodlatte
     Gordon
     Green
     Gutierrez
     Hall (OH)
     Hamilton
     Harman
     Hastings (FL)
     Hayes
     Hefner
     Hilliard
     Hinchey
     Hobson
     Holden
     Hoyer
     Jackson-Lee
     Jacobs
     Johnson (SD)
     Johnson, E.B.
     Johnston
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kleczka
     Klink
     LaFalce
     Lantos
     Laughlin
     Levin
     Lewis (GA)
     Lincoln
     Lipinski
     Lofgren
     Luther
     Maloney
     Manton
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy
     McDermott
     McNulty
     Meehan
     Menendez
     Mfume
     Miller (CA)
     Mineta
     Minge
     Mink
     Moakley
     Mollohan
     Montgomery
     Murtha
     Nadler
     Neal
     Oberstar
     Obey
     Ortiz
     Orton
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Payne (VA)
     Pelosi
     Peterson (FL)
     Peterson (MN)
     Pomeroy
     Poshard
     Rahall
     Reed
     Reynolds
     Richardson
     Rivers
     Roemer
     Rose
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Sawyer
     Schroeder
     Schumer
     Scott
     Serrano
     Sisisky
     Skaggs
     Skelton
     Slaughter
     Spratt
     Stark
     Stenholm
     Stokes
     Studds
     Stupak
     Tanner
     Taylor (MS)
     Tejeda
     Thompson
     Thornton
     Thurman
     Torres
     Torricelli
     Towns
     Traficant
     Tucker
     Velazquez
     Vento
     Visclosky
     Volkmer
     Ward
     Waters
     Watt (NC)
     Watts (OK)
     Waxman
     Weldon (FL)
     Williams
     Wilson
     Wise
     Woolsey
     Wyden
     Wynn
     Yates

                               NOES--229

     Allard
     Archer
     Armey
     Bachus
     Baesler
     Baker (CA)
     Baker (LA)
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bateman
     Bereuter
     Bilbray
     Bilirakis
     Bliley
     Blute
     Boehlert
     Boehner
     Bonilla
     Bono
     Brewster
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Cardin
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Chrysler
     Clinger
     Coble
     Coburn
     Collins (GA)
     Combest
     Cooley
     Cox
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Doolittle
     Dornan
     Dreier
     Duncan
     Dunn
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Funderburk
     Gallegly
     Ganske
     Gekas
     Gilchrest
     Gillmor
     Goodling
     Goss
     Graham
     Greenwood
     Gunderson
     Gutknecht
     Hall (TX)
     Hancock
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hoekstra
     Hoke
     Horn
     Hostettler
     Houghton
     Hunter
     Hutchinson
     Hyde
     Inglis
     Istook
     Johnson (CT)
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     King
     Kingston
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Linder
     Livingston
     LoBiondo
     Longley
     Lowey
     Lucas
     Manzullo
     Martini
     McCollum
     McCrery
     McHale
     McHugh
     McInnis
     McIntosh
     McKeon
     Metcalf
     Meyers
     Mica
     Miller (FL)
     Molinari
     Moorhead
     Moran
     Morella
     Myers
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Oxley
     Packard
     Parker
     Paxon
     Petri
     Pickett
     Pombo
     Porter
     Portman
     Pryce
     Quillen
     Quinn
     Radanovich
     Ramstad
     Regula
     Riggs
     Roberts
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roukema
     Royce
     Salmon
     Sanford
     Saxton
     Scarborough
     Schaefer
     Schiff
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shays
     Shuster
     Skeen
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Stearns
     Stockman
     Stump
     Talent
     Tate
     Tauzin
     Taylor (NC)
     Thomas
     Thornberry
     Tiahrt
     Torkildsen
     Upton
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Weller
     White
     Whitfield
     Wicker
     Wolf
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                             NOT VOTING--11

     Condit
     Flake
     Gibbons
     Jefferson
     McDade
     McKinney
     Meek
     Olver
     Rangel
     Roth
     Weldon (PA)

                              {time}  1347

  The Clerk announced the following pairs:
  On this vote:

       Mr. Jefferson for, with Mr. Roth against.
       Mr. Flake for, with Mr. Weldon of Pennsylvania against.

  Mr. DAVIS and Mr. SCHUMER changed their vote from ``no'' to ``aye.''
  So the amendment was rejected.
  [[Page H2745]] The result of the vote was announced as above 
recorded.
  Mr. GOODLATTE. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. SMITH of Michigan. Mr. Chairman, will the gentleman yield?
  Mr. GOODLATTE. I yield to the gentleman from Michigan.
  Mr. SMITH of Michigan. Mr. Chairman, I offer an amendment. I would 
like to say I will not ask for a recorded vote on this amendment.
  The CHAIRMAN. The gentleman is recognized for debate only on Mr. 
Goodlatte's time. The Chair will have to reserve the ability to 
separately recognize for the purpose of offering an amendment.


                        parliamentary inquiries

  Mr. GOODLATTE. Mr. Chairman, I have a parliamentary inquiry.
  The CHAIRMAN. The gentleman will state it.
  Mr. GOODLATTE. Mr. Chairman, do I have the ability to yield to the 
gentleman from Michigan [Mr. Smith] for the purpose of offering an 
amendment?
  The CHAIRMAN. The gentleman has only the ability to yield for the 
purpose of debate. The amendment must be offered by the gentleman from 
Michigan in his own right.
  Mr. GOODLATTE. I yield to the gentleman for the purpose of debate. I 
apologize to the gentleman that he will not be allowed to offer an 
amendment under these circumstances.
  Mr. SMITH of Michigan. Mr. Chairman, then I would yield back to the 
gentleman, because I am still in hopes that I can have the 5 minutes to 
offer my amendment.
  Mr. GOODLATTE. Mr. Chairman, that being the case, I yield back my 
time.
  Mr. SMITH of Michigan. Mr. Chairman, I have a parliamentary inquiry
  The CHAIRMAN. The gentleman will state it.
  Mr. SMITH of Michigan. Inasmuch as my amendment was printed in the 
Record, do I understand I have a right to have a vote on that 
amendment?
  The CHAIRMAN. If the gentleman is recognized before the expiration of 
7 hours at 2:20, the time set for consideration of the bill under the 
rule, then the gentleman will be accorded the opportunity to offer and 
have a vote upon his amendment.
  Mr. SMITH of Michigan. It is my understanding, Mr. Chairman, that I 
have the right to be recognized and to have that vote on the amendment, 
even if there is no debate, is that correct?
  The CHAIRMAN. The gentleman is correct, if the gentleman offers his 
amendment before 2:20.
                amendment offered by mr. bryant of texas

  Mr. BRYANT of Texas. Mr. Chairman, I offer an amendment.
  The CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Amendment offered by Mr. Bryant of Texas: Amendment No. 1: 
     Page 4, insert the following after line 21 and redesignate 
     the succeeding paragraph accordingly:
       ``(8) This subsection applies only to a claim brought 
     against a small business concern as defined under section 3 
     of the Small Business Act.''.

  Mr. BRYANT of Texas. Mr. Chairman, the bill before the House today, 
as those who have carefully watched this debate now, is one that would 
for the first time in American history shift the burden from where it 
has always been to the loser in a lawsuit to pay the costs of the 
winner for bringing the lawsuit, so that if a person brings a case, 
even though it appears to be meritorious, even though it is a case that 
anyone would agree could go either way, when he accidentally, for some 
reason, unforeseeably loses, he then faces the enormous burden of 
paying all of the expenses of the person on the other side. The result 
of that, of course, is to make it very difficult for people of little 
means to ever have access to our system of justice in the United 
States.
  Now, the rationale given for this bill is that we have to somehow, 
according to the advocates of it, make business life a little bit 
easier for the overburdened manufacturer, the small manufacturer out 
there, who cannot do business because he is constantly faced with the 
possibility of being sued and losing.
  Yet the bill applies to any type of manufacturer of any size 
whatsoever. When we complain that the bill is simply making it easy for 
the biggest and the largest and the strongest companies in our country 
to produce products of an inferior type that might later injure 
someone, and yet never be sued, they say oh, no, we are not trying to 
protect the big boys. We are just trying to create an even playing 
field. We are really looking at a way to protect the little guys.
  Well, the amendment which I have before the House at this moment does 
just that. What it says is that the loser-pay bill on the floor today 
only applies when the defendant is a small business as defined by the 
section 3 of the Small Business Act. What is that? That is a business 
with 500 or fewer employees.
  I submit to you that we are embarking on a mission here for which we 
have no evidence, for which we have been given no direction based upon 
any empirical data. If we are going to do that, for goodness' sake, we 
ought to limit the effect to small businesses and not allow the biggest 
of the businesses, the ones that can well afford to pay their own 
costs, to be exempt from any type of a lawsuit that is brought against 
them, in effect because no one will ever dare to bring a lawsuit for 
fear they might lose because of the color or their skin or the side of 
the head on which they part their hair or some other frivolous reason.
  All of those involved in litigation understand there is always a risk 
that a case can be lost, even a case that is firmly grounded as to the 
facts of the case and the law. When you add the loser-pay rule to our 
Federal jurisprudence, you put an average person in the extremely 
difficult position of deciding whether to risk the equity in their 
homes or the money that they put away for their children before 
pursuing even the most meritorious of claims.
  Let me point out, this does not hurt rich folks because they can 
afford to absorb the costs. It does not hurt poor folks because a poor 
person is not going to be in any position to pay an opposing side's 
attorney fees. They can simply get their obligation in that regard 
discharged in a bankruptcy proceeding. But it goes to middle class 
Americans who do not have enough to be unconcerned about the costs, and 
have a great deal to lose if they are so unhappy so as not to win a 
case which otherwise appears to be meritorious.
  If we are going to have a law like that, and I do not think we 
should, but if we are going to have a law like that on the books, by 
golly, the effect of it ought to be limited to cases in which the 
defendant is a small business, not a gigantic business that can well 
afford to handle its own litigation costs.
  Mr. CONYERS. Mr. Chairman, will the gentleman yield?
  Mr. BRYANT of Texas. I yield to the gentleman from Michigan.
  Mr. CONYERS. Mr. Chairman, I want to commend the gentleman, because 
in the closing hours on this debate, the gentleman has done as much to 
improve it as any provision that has been brought. It would be a 
protection only for small businesses who would be exempt from the 
loser-pay feature of this bill.
  Mr. BRYANT of Texas. That is correct.
  Mr. CONYERS. I am pleased to support it and accept it on our side, 
and I hope that because of the limited debate opportunity that the 
gentleman has, that the other side would consider it carefully in terms 
of accepting it as well.
  Mr. BRYANT of Texas. Mr. Chairman, reclaiming my time, I thank the 
gentleman for his comments.
  To recapitulate, the amendment says that the loser-pay bill on the 
floor today will only apply when the defendant is a small business, 
that is, one with 500 employees or less. A small business is defined in 
the amendment as the term ``small business'' is defined by section 3 of 
the Small Business Administration Act.
  Mr. Chairman, I urge Members' support for the amendment.
  Mr. MOORHEAD. Mr. Chairman, I rise in opposition to the amendment 
offered by the gentleman from Texas.
  Mr. Chairman, his amendment would limit the settlement and attorneys 
fees provisions of H.R. 988 to cases against small business. We do not 
intend to limit the application of these provisions to a large or a 
small business. As now written under the bill, it applies to 
 [[Page H2746]] any litigant in Federal court under the diversity 
statute.
  The purpose of this legislation is to try and encourage all parties 
to settle and not go to trial whenever possible. I do not know what 
percentage of cases filed under the diversity statute are filed by 
small businesses or how often they are the defendants, but loser-pays 
should be applied to everybody, and not be based on the size of a 
business to the exclusion of ordinary litigants. The focus of loser-
pays is on the strength of a claim and to discourage weak and frivolous 
cases.
  Mr. Chairman, I urge a ``no'' vote on this amendment.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Texas [Mr. Bryant].
  The question was taken; and the Chairman announced that the noes 
appeared to have it.


                             recorded vote

  Mr. BRYANT of Texas. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 177, 
noes 214, not voting 13, as follows:

                             [Roll No. 206]

                               AYES--177

     Abercrombie
     Baesler
     Baldacci
     Barcia
     Becerra
     Beilenson
     Bentsen
     Berman
     Bevill
     Bishop
     Bonior
     Borski
     Boucher
     Browder
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Bryant (TX)
     Cardin
     Chapman
     Clay
     Clayton
     Clement
     Clyburn
     Coleman
     Collins (IL)
     Collins (MI)
     Conyers
     Costello
     Coyne
     Cramer
     Danner
     de la Garza
     DeFazio
     DeLauro
     Dellums
     Deutsch
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Doyle
     Duncan
     Durbin
     Edwards
     Engel
     Ensign
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Foglietta
     Ford
     Frank (MA)
     Frost
     Furse
     Gejdenson
     Gephardt
     Gonzalez
     Gordon
     Green
     Gutierrez
     Hall (OH)
     Hamilton
     Harman
     Hastings (FL)
     Hayes
     Hefner
     Hilliard
     Hinchey
     Holden
     Hoyer
     Jackson-Lee
     Jacobs
     Johnson (SD)
     Johnson, E.B.
     Johnston
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kleczka
     Klink
     LaFalce
     Lantos
     Laughlin
     Levin
     Lewis (GA)
     Lincoln
     Lipinski
     Lofgren
     Lowey
     Luther
     Maloney
     Manton
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy
     McDermott
     McHale
     Meehan
     Menendez
     Mfume
     Miller (CA)
     Mineta
     Mink
     Moakley
     Mollohan
     Murtha
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Pelosi
     Peterson (FL)
     Peterson (MN)
     Pomeroy
     Poshard
     Rahall
     Reed
     Reynolds
     Richardson
     Rivers
     Roemer
     Rose
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Schroeder
     Schumer
     Scott
     Serrano
     Skelton
     Slaughter
     Spratt
     Stark
     Stokes
     Studds
     Stupak
     Tanner
     Tejeda
     Thompson
     Thornton
     Thurman
     Torres
     Towns
     Traficant
     Tucker
     Velazquez
     Vento
     Visclosky
     Volkmer
     Ward
     Waters
     Watt (NC)
     Waxman
     Wilson
     Wise
     Woolsey
     Wyden
     Wynn
     Yates

                               NOES--244

     Ackerman
     Allard
     Archer
     Armey
     Bachus
     Baker (CA)
     Baker (LA)
     Ballenger
     Barr
     Barrett (NE)
     Barrett (WI)
     Bartlett
     Barton
     Bass
     Bateman
     Bereuter
     Bilbray
     Bilirakis
     Bliley
     Blute
     Boehlert
     Boehner
     Bonilla
     Bono
     Brewster
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Chrysler
     Clinger
     Coble
     Coburn
     Collins (GA)
     Combest
     Cooley
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Davis
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Doolittle
     Dornan
     Dreier
     Dunn
     Ehlers
     Ehrlich
     Emerson
     English
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Fox
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Funderburk
     Gallegly
     Ganske
     Gekas
     Geren
     Gilchrest
     Gillmor
     Gilman
     Goodlatte
     Goodling
     Goss
     Graham
     Greenwood
     Gunderson
     Gutknecht
     Hall (TX)
     Hancock
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Horn
     Hostettler
     Houghton
     Hunter
     Hutchinson
     Hyde
     Inglis
     Istook
     Johnson (CT)
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     King
     Kingston
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Linder
     Livingston
     LoBiondo
     Longley
     Lucas
     Manzullo
     Martini
     McCollum
     McCrery
     McHugh
     McInnis
     McIntosh
     McKeon
     McNulty
     Metcalf
     Meyers
     Mica
     Miller (FL)
     Minge
     Molinari
     Montgomery
     Moorhead
     Moran
     Morella
     Myers
     Myrick
     Nethercutt
     Neumann
     Ney
     Norwood
     Nussle
     Orton
     Oxley
     Packard
     Parker
     Paxon
     Payne (VA)
     Petri
     Pickett
     Pombo
     Porter
     Portman
     Pryce
     Quillen
     Quinn
     Radanovich
     Ramstad
     Regula
     Riggs
     Roberts
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roukema
     Royce
     Salmon
     Sanford
     Sawyer
     Saxton
     Scarborough
     Schaefer
     Schiff
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shays
     Shuster
     Sisisky
     Skaggs
     Skeen
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stockman
     Stump
     Talent
     Tate
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Tiahrt
     Torkildsen
     Upton
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     White
     Whitfield
     Wicker
     Wolf
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                             NOT VOTING--13

     Andrews
     Condit
     Cox
     Flake
     Gibbons
     Jefferson
     McDade
     McKinney
     Meek
     Rangel
     Roth
     Torricelli
     Williams

                              {time}  1417

  The Clerk announced the following pairs:
  On this vote:

       Mr. Flake for, with Mr. Cox against.
       Mr. Jefferson for, with Mr. Roth against.

  Mrs. FOWLER changed her vote from ``aye'' to ``no.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
  Mr. INGLIS of South Carolina. Mr. Chairman, I move to strike the last 
word.
  The CHAIRMAN. The gentleman is recognized for 3 minutes.
  Mr. SMITH of Michigan. Mr. Chairman, will the gentleman yield?
  Mr. INGLIS of South Carolina. I yield to the gentleman from Michigan.
  Mr. SMITH of Michigan. Mr. Chairman, I appreciate the gentleman 
yielding to me.
  It is somewhat of a frustrating experience to have amendments, as 
Members from both sides of the aisle have had only to be pre-empted and 
ultimately denied the opportunity to offer those amendments.
  The members of that committee are given priority. Mr. Chairman, the 
members of that committee are essentially all attorneys, so those of us 
who are members of other occupations get little opportunity to say 
``wait a minute.''
  Mr. Chairman, the title of this bill is ``The Attorney Accountability 
Act.'' In fact, this bill as currently written does little to make 
attorneys accountable. The only part of this bill that does anything to 
make lawyers accountable for their actions is the change in rule XI.
  That change, requiring a mandatory penalty for violation of the rule, 
applies only in the small number of cases in which an attorney is 
actually sanctioned by a judge under rule XI. As we have heard from 
most everybody, Mr. chairman, there are very few sanctions that take 
place. If ever this sanction does take place, the judge even has the 
right to waive the penalty on the attorney and assess all of the 
sanction penalties on the client.
  Mr. Chairman, my amendment would have required attorneys to accept 
some responsibility for their actions by making them liable for 50 
percent of the unpaid costs of unnecessary litigation that the client 
does not pay fully. I think this is important.
  Mr. Chairman, under H.R. 988 as currently drafted, attorneys seeking 
a big, contingency fee payday have an incentive to litigate weak cases 
aggressively. If the client wins, the lawyer cashes in. If the client 
loses, the client is stick with the bill. It's even better if the 
client's poor--then no one has to pay.
  My amendment makes an attorney liable for half of any attorney's fee 
award that a client can't pay. This sanction is not unduly harsh. There 
can be no award of fees unless:
  First, a settlement is offered;
  Second, the offer is rejected; and
  Third, the jury returns a verdict less than the offer.
  In the few cases in which these conditions are met, the award is 
limited:
  First, it's capped at the amount of the offeree's expenses;
  [[Page H2747]] Second, it's limited to the actual cost incurred from 
the time of the offer through the end of the trial; and
  Third, the judge has discretion to moderate or waive the penalty when 
it would be manifestly unjust.
  These modest steps are necessary if we truly intend to make attorneys 
accountable. My amendment tells lawyers: This is a court, not a lottery 
office. You're an officer of this court. As an officer of this court, 
you have a responsibility to the court and the other litigants not to 
waste their time and money. And if you ignore these responsibilities, 
you can be held liable. I ask the House to vote ``yes'' on the Smith 
amendment to H.R. 988.
  Mrs. SCHROEDER. Mr. Chairman, I regret that the time constraints 
imposed by the rule precluded consideration of the Harman amendment, 
which replaces H.R. 988's ``loser pays'' provision with the attorneys 
fees standard in the securities bill.
  The goal of deterring frivolous lawsuits is a worthy one. However, 
H.R. 988's loser pays provision goes well beyond that; it gives a 
wealthy party the power to slam the courthouse door shut in the face of 
a middle-income or poor individual with a reasonably strong case. The 
Harman amendment strikes a better balance--it deters suits that are 
frivolous, but allows ordinary people to pursue close cases.
  Assume a case in which the damages are high--for example, $500,000--
and the amount of damages is essentially undisputed. However, the 
defendant's liability is not a certainty. The plaintiff's attorney 
advises him that the liability question is fairly strong, but it isn't 
a slam dunk. The attorney estimates that the odds are perhaps 70-30 in 
favor of winning the liability question. In this kind of case, under 
our current system, the plaintiff will either win a judgment of 
something very close to $500,000, or will win nothing. This is clearly 
not a frivolous case; it is a reasonable case for the plaintiff to 
pursue, even if, in the end, he loses. Under current law, even a poor 
or middle-income plaintiff will be able to pursue this case, because he 
can obtain representation on a contingency fee basis, and does not 
assume any
 risk of having to pay the other side's attorneys fees if he loses.

  But let us assume that H.R. 988 is in effect. Assume that the 
defendant is a large corporation, whose decisionmaking with respect to 
the case is not particularly affected by the possibly of recovering its 
attorneys fees, because they are considered to be a routine cost of 
doing business. The defendant makes a $1 offer to the plaintiff, which 
is filed and served very early in the case. The defendant's primary 
motivation is not to reach a reasonable settlement; it is to try to 
deter the lawsuit altogether by playing on the plaintiff's 
unwillingness to roll the dice on his life savings on a 70-30 gamble.
  The plaintiff is a middle-income individual who has a contingency-fee 
agreement with his attorney, and has managed to salt away some savings, 
which he hopes to use for his children's college education, or perhaps 
to support either his own retirement, or his parents in the event they 
need his support later in their lives.
  Under the terms of section 2 of H.R. 988--the Goodlatte loser pays 
provision--if the plaintiff loses the case, he will end up losing his 
life savings to pay the defendant's attorneys fees. These fees will be 
considerable; because the plaintiff has a contingency fee agreement 
with his own attorney, he will be required to pay the defendant a fee 
calculated on an hourly rate limited only to the number of hours his 
own attorney worked. Because liability was a close question, his own 
attorney worked many hours to prepare this case. There is no reasonable 
counter-offer the plaintiff can make that will protect him from having 
to pay attorneys fees if he loses, because the only offer that would 
protect him would be an offer to dismiss his case. Because H.R. 988 
does not give him a way to avoid risking his life savings if the 
defendant offers him $1, the plaintiff has to be willing to gamble his 
life savings in order to pursue a case with high damages and a 70-30 
probability of winning liability. The Harman amendment, by contrast, 
protects the individual who seeks access to the courts in a case where 
liability is reasonably likely, but not a slam dunk. Unless we adopt 
the Harman amendment, the results of this bill are:
  First, the middle-income plaintiff, who is strongly risk-averse, can 
pursue even a relatively strong case only by putting his life savings 
on the line.
  Second, the bargaining power between individuals and large 
corporations is very uneven, because the plaintiff is risking his life 
savings, while all of the risks on the defendant's side are absorbable 
as a cost of doing business.
  Third, the court cannot step in to level this playing field, because 
even though H.R. 988 allows the court to decline to order the loser to 
pay if the court finds that requiring payment would be manifestly 
unjust, the report filed by the Judiciary Committee states very clearly 
that the standard governing this exception is ``an exceptionally high 
one, extending well beyond the relative wealth of the parties.'' Thus, 
the fact that the winning defendant is a large corporation, and the 
losing plaintiff is a middle-income plaintiff who will have to use all 
of his life savings to pay the defendant's attorneys fees, is not 
something that the Republican majority believes is a manifest 
injustice.
  The respected conservative British magazine, the Economist, has 
called for the repeal of the so-called English rule, that is, loser 
pays, in England, precisely because it shuts the courthouse door to 
middle-income parties. Let's not make the mistake of giving large 
corporations and wealthy individuals an unfair advantage in our civil 
justice system. The American way is equal justice under law. H.R. 988 
replaces that with a system of all the justice you can afford. I urge 
adoption of the Harman amendment.
  The CHAIRMAN. All the time has expired.
  The question is on the committee amendment in the nature of a 
substitute, as amended.
  The committee amendment in the nature of a substitute, as amended, 
was agreed to.
  The CHAIRMAN. Under the rule, the committee rises.
  Accordingly, the Committee rose; and the Speaker pro tempore, Mr. 
Barrett of Nebraska, having assumed the chair, Mr. Hobson, Chairman of 
the Committee of the Whole House on the State of the Union, reported 
that that Committee, having had under consideration the bill (H.R. 
988), to reform the Federal civil justice system, pursuant to House 
Resolution 104, he reported the bill back to the House with an 
amendment adopted by the Committee of the Whole.
  Under the rule, the previous question is ordered.
  Is a separate vote demanded on the amendment to the committee 
amendment in the nature of a substitute adopted by the Committee of the 
Whole? If not, the question is on the committee amendment in the nature 
of a substitute, as amended.
  The committee amendment in the nature of a
   substitute, as amended, was agreed to.

  The SPEAKER pro tempore. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed and read a third time, and was 
read the third time.
  The SPEAKER pro tempore. The question is on the passage of the bill.


               motion to recommit offered by mr. conyers

  Mr. CONYERS. Mr. Speaker, I offer a motion to recommit.
  The SPEAKER pro tempore. Is the gentleman opposed to the bill?
  Mr. CONYERS. I certainly am, Mr. Speaker.
  The SPEAKER pro tempore. The Clerk will report the motion to 
recommit.
  The Clerk read as follows:

       Mr. Conyers moves to recommit H.R. 988 back to the 
     Committee on the Judiciary with instruction to report back 
     forthwith with the following amendment:
       Strike section 2 of the bill, and insert the following:

     SEC. 2. AWARD OF COSTS AND ATTORNEY'S FEES IN FEDERAL CIVIL 
                   DIVERSITY LITIGATION.

       Section 1332 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(e) Awards of Fees and Expenses.--
       ``(1) Authority to award fees and expenses.--In any action 
     over which the court has jurisdiction under this section, if 
     the court enters a final judgment against a party litigant on 
     the basis of a motion to dismiss, motion for summary 
     judgment, or a trial on the merits, the court shall, upon 
     motion by the prevailing party, determine whether (A) the 
     position of the losing party was not substantially justified, 
     (B) imposing fees and expenses on the losing party or the 
     losing party's attorney would be just, and (C) the cost of 
     such fees and expenses to the prevailing party is 
     substantially burdensome or unjust. If the court makes the 
     determinations described in clauses (A), (B), and (C), the 
     court shall award the prevailing party reasonable fees and 
     other
      expenses incurred by that party. The determination of 
     whether the position of the losing party was substantially 
     justified shall be made on the basis of the record in the 
     action for which fees and other expenses are sought, but 
     the burden of persuasion shall be on the prevailing party.
       ``(2) Security for payment of costs in class actions.--In 
     any private action arising under this section that is 
     certified as a class action under the Federal Rules of Civil 
     Procedure, the court shall require an undertaking from the 
     attorneys for the plaintiff 
      [[Page H2748]] class, the plaintiff class, or both, in such 
     proportions and at such times as the court determines are 
     just and equitable, for the payment of fees and expenses that 
     may be awarded under paragraph (1).
       ``(3) Application for fees.--A party seeking an award of 
     fees and other expenses shall, within 30 days of a final, 
     nonappealable judgment in the action, submit to the court an 
     application for fees and other expenses that verifies that 
     the party is entitled to such an award under paragraph (1) 
     and the amount sought, including an itemized statement from 
     any attorney or expert witness representing or appearing on 
     behalf of the party stating the actual time expended and the 
     rate at which fees and other expenses are computed.
       ``(4) Allocation and size of award.--The court, in its 
     discretion, may--
       ``(A) determine whether the amount to be awarded pursuant 
     to this subsection shall be awarded against the losing party, 
     its attorney, or both; and
       ``(B) reduce the amount to be awarded pursuant to this 
     subsection, or deny an award, to the extent that the 
     prevailing party during the course of the proceedings engaged 
     in conduct that unduly and unreasonably protracted the final 
     resolution of the action.
       ``(5) Award in discovery proceedings.--In adjudicating any 
     motion for an order compelling discovery or any motion for a 
     protective order made in any action over which the court has 
     jurisdiction under this section, the court shall award the 
     prevailing party reasonable fees and other expenses incurred 
     by the party in bringing or defending against the motion, 
     including reasonable attorneys' fees, unless the court finds 
     that special circumstances make an award unjust.
       ``(6) Rule of construction.--Nothing in this subsection 
     shall be construed to limit or impair the discretion of the 
     court to award costs pursuant to other provisions of law.
       ``(7) Protection against abuse of process.--In any action 
     to which this subsection applies, a court shall not permit a 
     plaintiff to withdraw from or voluntarily dismiss such action 
     if the court determines that such withdrawal or dismissal is 
     taken for purposes of evasion of the requirements of this 
     subsection.
       ``(8) Definitions.--For purposes of this subsection--
       ``(A) The term `fees and other expenses' includes the 
     reasonable expenses of expert witnesses, the reasonable cost 
     of any study, analysis, report, test, or project which is 
     found by the court to be necessary for the preparation of the 
     party's case, and reasonable attorneys' fees and expenses. 
     The amount of fees awarded under this subsection shall be 
     based upon prevailing market rates for the kind and quality 
     of services furnished.
       ``(B) The term `substantially justified' shall have the 
     same meaning as in section 2412(d)(1) of title 28, United 
     States Code.''.

  Mr. CONYERS (during the reading). Mr. Speaker, I ask unanimous 
consent that the motion to recommit be considered as read and printed 
in the Record.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Michigan?
  There was no objection.
  The SPEAKER pro tempore. The gentleman from Michigan [Mr. Conyers] is 
recognized for 5 minutes.
  Mr. CONYERS. Mr. Speaker, this has been a long 2 days on a bill that 
has presented a lot of problems to people. I am, on the motion to 
recommit, introducing a concept that was presented by the gentlewoman 
from California [Ms. Harman] which would limit the so-called loser pays 
provisions to those cases where the settlement offer was reasonable and 
made in good faith.
  This is the same standard being adopted in the context of the 
Republican bill on securities litigation, H.R. 1058. This is the 
precise language in the Republican bill on securities scheduled to be 
on the floor shortly.
  I would hope that my Republican colleagues would be able to see the 
logic of extending the same standard to injured tort victims as they do 
to stockholders. If someone loses a limb in a product liability case, 
they should have the same access to justice as an investor who has 
received fraudulent information.
  The English rule, which requires losers to pay the legal fees of 
winners, which I had not thought would ever be popular in America, 
since we have the American rule, would substantially eliminate justice 
for the middle class members of our society.
  As in England, those without a significant financial cushion will 
simply be unable to afford the risks of losing litigation.
  Ms. HARMAN. Mr. Speaker, will the gentleman yield?
  Mr. CONYERS. I yield to the gentlewoman from California.
  Ms. HARMAN. Mr. Speaker, I thank the gentleman for his heroic attempt 
to allow me to offer an amendment that is now part of the motion to 
recommit.
  Essentially the motion would borrow fee-shifting provisions from the 
1980 Equal Access To Justice Act, which is now a Federal law, and from 
the precise language that will be offered later today in the securities 
litigation reform bill by the gentleman from California [Mr. Cox], 
which sets up a three-part standard for fee shifting. We feel that this 
would be much more fair than the language of the gentleman from 
Virginia [Mr. Goodlatte] in the present bill.
  Mr. Chairman, I would commend the gentleman from Virginia [Mr. 
Goodlatte] for his enormous effort to provide a standard that is fair, 
but I would point out that in making that standard mandatory, he could 
very well cause unfair results in close cases and the Cox language, 
which we will debate fully later, would take care of those problems.
  I would urge support for the motion to recommit, and I would urge 
consideration of this much better language.
  Mr. CONYERS. Mr. Speaker, in closing, the loser pays is a phrase that 
appeals to everyone who has heard it. It removes itself to anecdotes 
about court cases that appeared or produced an absurd or abusive 
outcome, but government by anecdote can produce disastrous policy.
  Although the Contract With America claims that the loser pays 
provision is intended to penalize frivolous lawsuits and discourage the 
filing of weak cases, it is almost certain to have adverse consequences 
which limit access to justice.
  The Harman amendment to recommit essentially cushions some of the 
worst features that now exist in the bill, and, as I have said before, 
it duplicates the bill on securities litigation by adopting the very 
same standard.
  Please support the motion to recommit this bill.
  Mr. MOORHEAD. Mr. Speaker, I rise in opposition to the motion to 
recommit.
  The SPEAKER pro tempore. The gentleman from California [Mr. Moorhead] 
is recognized for 5 minutes.
  Mr. MOORHEAD. Mr. Speaker, the motion to recommit, unlike the loser 
pays language in H.R. 988, would take control out of the hands of the 
party and give it to the courts.
  Moreover, an award of attorneys' fees under this amendment is merely 
discretionary with the court and not mandatory, like the language of 
H.R. 988. This amendment would also make the losing party's lawyer 
vulnerable for attorneys' fees.
  This approach completely overlooks the fact that a decision to settle 
the case or press the case to trial is a decision of the party and not 
their lawyer. The lawyer cannot settle a case without the consent of 
his client.
  The ultimate decision must be the client's as to whether a settlement 
is made or not. If the approach in this amendment were adopted, the 
lawyer would have to evaluate every case with a view toward his own 
liability, which would easily conflict with the interests of the party 
he purports to represent.
  Mr. Speaker, this amendment, while appropriate for securities cases, 
should not be applied across the board. It will gut the loser pays 
language in H.R. 988. I urge its defeat.
  Mr. Speaker, I yield the balance of my time to the gentleman from 
Virginia [Mr. Goodlatte].
  Mr. GOODLATTE. Mr. Speaker, I thank the gentleman for yielding to me, 
and I thank the chairman of the subcommittee for his fine work on this 
legislation, and the other side for the very civil way this debate has 
been conducted.
  However, Mr. Speaker, I must rise in opposition to this motion to 
recommit, because it will return us to the situation we gave right now.

                              {time}  1430

  It will eliminate the opportunity we have to truly say that when you 
go into Federal court, you have to be responsible, you have to be 
prepared to take responsibility for your own actions. By giving to the 
judge the discretion of whether or not to apply attorneys' fees, you 
will put us back to the situation we have right now with rules like 
rule 11, which has the effect of saying, ``Yes, we have sanctions, but, 
gee, maybe we wont't apply them,'' and the evidence is that they have 
not been applied.
  [[Page H2749]] There are some other problems with this amendment. For 
one thing, this amendment incorporated in the motion to recommit could 
allow the court to require that the winning party's legal fees be paid 
by the losing party's attorney.
  This is a very wrongheaded concept in American justice. You should 
not ever drive a wedge between anybody and their lawyer who has all 
kinds of ethical responsibilities in the representation of their 
client.
  Ms. HARMAN. Mr. Chairman, will the gentleman yield just for one 
question?
  Mr. MOORHEAD. I yield to the gentlewoman from California.
  Ms. HARMAN. Is this not the precise language that will be offered in 
the next bill we take up, the securities litigation bill, that was 
drafted by the gentleman from California [Mr. Cox], including the 
possibility that attorneys could pay the fee awards?
  Mr. GOODLATTE. I have to say I am not on the committee who produced 
that bill, so I do not know. You may be correct. If so, I will attempt 
to change that language in that bill.
  But the point is here that if we take away the mechanism that has 
been set up in this bill, we will have eliminated all of the incentives 
we created to settle cases, all of the incentives we have created to 
not bring frivolous, fraudulent, or nonmeritorious lawsuits in U.S. 
district court. The compromise that we have come up with as changed 
from the original bill is a very, very good effort to control the 
overload of lawsuits in our courts without having to go back to a 
system now where there is no pressure on some individuals not to be 
responsible when they decide to bring an action in court.
  I strongly urge the defeat of this motion to recommit.
  The SPEAKER pro tempore (Mr. Barrett of Nebraska). Without objection, 
the previous question is ordered on the motion to recommit.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to recommit.
  The motion to recommit was rejected.
  The SPEAKER pro tempore. The question is on the passage of the bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             recorded vote

  Mr. CONYERS. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 232, 
noes 193, not voting 10, as follows:

                             [Roll No. 207]

                               AYES--232

     Allard
     Archer
     Armey
     Bachus
     Baker (CA)
     Baker (LA)
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bereuter
     Bilbray
     Bilirakis
     Bliley
     Blute
     Boehlert
     Boehner
     Bonilla
     Bono
     Brewster
     Brownback
     Bryant (TN)
     Bunn
     Bunning
     Burr
     Burton
     Callahan
     Calvert
     Camp
     Canady
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Chrysler
     Clinger
     Coble
     Coburn
     Collins (GA)
     Combest
     Cooley
     Cox
     Crane
     Crapo
     Cremeans
     Cubin
     Cunningham
     Davis
     de la Garza
     Deal
     DeLay
     Dickey
     Doolittle
     Dornan
     Dreier
     Duncan
     Dunn
     Ehlers
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Fields (TX)
     Flanagan
     Foley
     Forbes
     Fowler
     Fox
     Franks (CT)
     Franks (NJ)
     Frelinghuysen
     Frisa
     Funderburk
     Gallegly
     Ganske
     Gekas
     Geren
     Gilchrest
     Gillmor
     Gilman
     Gingrich
     Goodlatte
     Goodling
     Goss
     Graham
     Greenwood
     Gunderson
     Gutknecht
     Hall (TX)
     Hancock
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Heineman
     Herger
     Hilleary
     Hobson
     Hoekstra
     Hoke
     Horn
     Hostettler
     Houghton
     Hunter
     Hutchinson
     Hyde
     Inglis
     Istook
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     Kingston
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     Leach
     Lewis (CA)
     Lewis (KY)
     Lightfoot
     Linder
     Livingston
     LoBiondo
     Lucas
     Manzullo
     McCollum
     McCrery
     McHugh
     McInnis
     McIntosh
     McKeon
     McNulty
     Metcalf
     Meyers
     Mica
     Miller (FL)
     Minge
     Molinari
     Montgomery
     Moorhead
     Morella
     Myers
     Myrick
     Neumann
     Ney
     Norwood
     Nussle
     Ortiz
     Oxley
     Packard
     Parker
     Paxon
     Payne (VA)
     Peterson (MN)
     Petri
     Pombo
     Porter
     Portman
     Pryce
     Quillen
     Quinn
     Radanovich
     Ramstad
     Regula
     Riggs
     Roberts
     Rogers
     Rohrabacher
     Roukema
     Royce
     Salmon
     Sanford
     Saxton
     Scarborough
     Schaefer
     Schiff
     Seastrand
     Sensenbrenner
     Shadegg
     Shaw
     Shays
     Shuster
     Skeen
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stockman
     Stump
     Talent
     Tate
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Tiahrt
     Torkildsen
     Upton
     Vucanovich
     Waldholtz
     Walker
     Walsh
     Wamp
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     White
     Whitfield
     Wicker
     Wolf
     Young (AK)
     Young (FL)
     Zeliff
     Zimmer

                               NOES--193

     Abercrombie
     Ackerman
     Andrews
     Baesler
     Baldacci
     Barrett (WI)
     Bateman
     Becerra
     Beilenson
     Bentsen
     Berman
     Bevill
     Bishop
     Bonior
     Borski
     Boucher
     Browder
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Bryant (TX)
     Buyer
     Cardin
     Chapman
     Clay
     Clayton
     Clement
     Clyburn
     Coleman
     Collins (IL)
     Collins (MI)
     Conyers
     Costello
     Coyne
     Cramer
     Danner
     DeFazio
     DeLauro
     Dellums
     Deutsch
     Diaz-Balart
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Doyle
     Durbin
     Edwards
     Ehrlich
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Fazio
     Fields (LA)
     Filner
     Foglietta
     Ford
     Frank (MA)
     Frost
     Furse
     Gejdenson
     Gephardt
     Gonzalez
     Gordon
     Green
     Gutierrez
     Hall (OH)
     Hamilton
     Harman
     Hastings (FL)
     Hayes
     Hefner
     Hilliard
     Hinchey
     Holden
     Hoyer
     Jackson-Lee
     Jacobs
     Johnson (SD)
     Johnson, E. B.
     Johnston
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     King
     Kleczka
     Klink
     LaFalce
     Lantos
     LaTourette
     Laughlin
     Lazio
     Levin
     Lewis (GA)
     Lincoln
     Lipinski
     Lofgren
     Longley
     Lowey
     Luther
     Maloney
     Manton
     Markey
     Martinez
     Martini
     Mascara
     Matsui
     McCarthy
     McDermott
     McHale
     Meehan
     Menendez
     Mfume
     Miller (CA)
     Mineta
     Mink
     Moakley
     Mollohan
     Moran
     Murtha
     Nadler
     Neal
     Nethercutt
     Oberstar
     Obey
     Olver
     Orton
     Owens
     Pallone
     Pastor
     Payne (NJ)
     Pelosi
     Peterson (FL)
     Pickett
     Pomeroy
     Poshard
     Rahall
     Reed
     Reynolds
     Richardson
     Rivers
     Roemer
     Ros-Lehtinen
     Rose
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Sawyer
     Schroeder
     Schumer
     Scott
     Serrano
     Sisisky
     Skaggs
     Skelton
     Slaughter
     Spratt
     Stark
     Stokes
     Studds
     Stupak
     Tanner
     Tejeda
     Thompson
     Thornton
     Thurman
     Torres
     Torricelli
     Towns
     Traficant
     Tucker
     Velazquez
     Vento
     Visclosky
     Volkmer
     Ward
     Waters
     Watt (NC)
     Waxman
     Williams
     Wilson
     Wise
     Woolsey
     Wyden
     Wynn
     Yates

                             NOT VOTING--10

     Condit
     Flake
     Gibbons
     Jefferson
     Johnson (CT)
     McDade
     McKinney
     Meek
     Rangel
     Roth

                              {time}  1450

  The Clerk announced the following pairs:
  On this vote:

       Mrs. Johnson of Connecticut for, with Mr. Flake against.
       Mr. Roth for, with Mr. Jefferson against.

  Mr. CHAPMAN changed his vote from ``aye'' to ``no.''
  Mr. BACHUS and Mr. SHAYS changed their vote from ``no'' to ``aye.''
  So the bill was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  

                          ____________________