[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.
____________________