[Congressional Record Volume 141, Number 73 (Thursday, May 4, 1995)]
[Senate]
[Pages S6131-S6133]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                            FRESHMAN AGENDA

  Mr. THOMAS. Members will be relieved to know that there will be 
others joining me during this 30 minutes, other Members from our 
freshman group, to continue our discussion about the agenda for the 
Senate, the agenda for the Republicans, and of course the agenda for 
this country.
  We feel very strongly, of course, that this is a great opportunity to 
move forward on the issues that were the issues talked about and voted 
on by Americans in the 1994 November election.
  This is the greatest opportunity that we have had for a number of 
years to evaluate programs that have been in place, rather than 
continuing to simply put more money into programs when the results have 
not been what we expected. Now is an opportunity to take a look at the 
programs and see, in fact, if there can be changes made, to see if in 
fact, there are programs that do not need to be continued, that could 
better 
[[Page S6132]] be done in the private sector, if there are 
consolidations that can be made so that we can do away with repetition 
and redundancy in programs. There is no question but that those exist.
  Mr. President, we are excited by the opportunity. There are 11 
Members who are in our first year in the U.S. Senate and are very proud 
and pleased to be there. More than that, I think we are excited at the 
chance to participate in change that has been needed for some time, 
participate in the change that voters sent Members here to accomplish 
this year, with the message clearly that there is too much Government 
and that it costs too much.
  They sent Members here with a message that there are better ways of 
delivering services. We are not inclined to do away with programs and 
leave people without the assistance that properly comes from 
Government, but rather to find ways to help people help themselves back 
into a productive society. That is what it is all about.
  I am very pleased, Mr. President, to be joined by the president of 
our freshman class, the Senator from Oklahoma.


                          November Revolution

  Mr. INHOFE. I thank the Senator from Wyoming. I think he said it very 
well. I think it is very important, and the 11 freshman Members are 
probably in a better position than anyone else to remind the people 
that what happened on November 8, 1994 in an appropriate way at the 
ballot box, was, in fact, a revolution.
  It is the first time in about 40 years that we have been able to look 
at Government and redefine its role and answer the question, has 
Government become involved in more things in a heavyhanded way, than it 
was intended to be involved in?
  I know it is the liberal agenda of giving away, having programs for 
all needs, taking care of everyone from the cradle to the grave, is 
something that is easy to demagog, but to stand here and know that 
there are limited resources, I think it is irresponsible to continue 
that.
  I think the people in November voted for changes, not so much 
Republican versus Democrat. Sure, the Republicans took over the House, 
and they took over the Senate. That is the first time that has 
happened. The main thing is that we campaigned for things that we have 
consistently voted for that contradict the behavior of Congress for the 
past 40 years.
  When we look at Government's role, we have to ask the question, is 
Government's responsibility to take care of all the social needs? It is 
a difficult thing to talk about because it is easy to demagog.
  I was distressed probably as much as anyone was when the President 
and others went out and said, well, the Republicans are trying to take 
the milk away from babies during the nutrition program debate when, in 
fact, the Republicans were suggesting a 4\1/2\ percent increase.
  This is very disturbing. The people have awakened in America and they 
do not buy that kind of talk anymore. They are going to demand changes.
  I have heard, and there is a perception that the U.S. Senate is 
operating so slowly, that we are not getting anything done. Now, I 
suggest, Mr. President, that we operate differently in the Senate, and 
as one who used to serve in the House of Representatives the same as 
the Senator from Wyoming, maybe we like the way that operates a little 
bit better because it is faster. And, the occupant of the chair was 
also there and knows what I am talking about.
  On the other hand, there was not a day that went by in the U.S. House 
of Representatives when I was over there when this conversation did not 
occur. One would say, ``Are we really quite ready to vote on this? 
Should we refine it more?'' The answer is always ``Do not worry, the 
Senate will take care of that.''
  For the first time in my life, when I was elected this last time to 
the U.S. Senate, I realized what our Founding Fathers had in mind when 
they said they wanted a bicameral system. In fact, we have to slow that 
train down.
  How slow has the train been? The agenda, the Contract With America, 
had 10 items in it. In the House of Representatives, they were able to 
pass 9 of the 10. The only area that they did not pass was term 
limitations. In the Senate, in just the first 3 months, we passed 
congressional accountability, that is forcing Government to live under 
the same laws we pass.
  We passed an unfunded mandates bill. As a former mayor of a major 
city, I can say that the major problem that exists in cities in America 
today is the fact that the Federal Government tells them what to do but 
does not send the money down. They are called unfunded mandates.
 We have passed that major reform here in the U.S. Senate, along with 
congressional accountability. A line-item veto--we have talked about 
line-item veto now for a long period of time. Now we have passed it 
here. We passed a moratorium on endangered species.

  So we have actually handled about three or four of the major contract 
items and we are on schedule to handle the rest of them. But I honestly 
believe it is a responsibility, as the Senator from Wyoming said, of 
the freshman class, those of us who heard the mandate on November 8, 
1994, to keep this train on track and to keep focused. We still have to 
finish up the rest of the items.
  Right now, as soon as I leave the floor, I will be going over to the 
Environment and Public Works Committee hearing. Over there we are 
handling another one of the contract items; that is, doing something 
about the heavyhandedness of Government through its EPA regulations: 
what is happening in this country with the Superfund; what is happening 
with wetlands; what is happening with endangered species.
  Oklahoma is somewhat of an agricultural State. As I traveled through, 
campaigning, I do not remember, of the hundreds of farmers I talked to 
during the campaign, any of them coming up to me and saying, ``I want 
to know what the farm bill is going to do. I want to know about price 
supports.'' What the farmers in Oklahoma and throughout America are 
concerned about is property rights. That is one of the things we talked 
about in the Contract With America, that we have the fifth amendment to 
the Constitution and the 14th amendment to the Constitution that 
guarantee our property rights, not to lose our property without due 
process. We all know when farmers have property that is declared to be 
wetlands, they lose the value of that, and I have every expectation we 
are going to be able to pass the Private Property Protection Act that 
is going to guarantee the protection of private property and the value 
of that property to all Americans. Again, this is one of the contracts.
  In this same committee meeting we are going to be hearing about the 
Superfund problems that exist. We know, and it is a fact today, that 
there are people who have received phone calls and letters from the EPA 
that have put them out of business for something over which they had no 
control. One such case was a lumber store owner in Tulsa, OK, by the 
name of Jim Dunn. He got a letter from the EPA that would have put him 
out of business, invoking $25,000 a day fines. Checking to see what he 
was guilty of, we found that for 10 years he used the same person to 
sell his crankcase oil to. This contractor was licensed by the Federal 
Government, by the State of Oklahoma, even by the county and City of 
Tulsa, yet they came back and traced some of that oil to a Superfund 
site and came to the conclusion that he was liable. In the absence of 
joint and several reform, he could be liable for the whole amount. And 
for that he was threatened to be charged a fine of $25,000 a day and 
possible criminal sanctions. That is the very thing that we are not 
going to allow to happen. It is the overregulation, the heavyhandedness 
of Government.
  The Endangered Species Act--I am very proud the Senator from Texas, 
Senator Hutchison, was able to get an amendment through on the floor to 
put some sanity on that, to slow that train down so that, before we add 
any new critters to the Endangered Species Act, we are able to sit back 
and look at the cost/benefit of all these things. It was not long ago 
they decided to put the Arkansas shiner under the Endangered Species 
Act. Here is a little minnow that I guess they have decided is more 
important than people are. It would cost the average farmer in Oklahoma 
who has runoff into the Canadian system about $2,000 to protect this 
critter.
  [[Page S6133]] This is the type of foolishness we are going to stop. 
We are all sensitive to the environment and we are sensitive to the 
need for some controls. But we are not going to allow Government to 
continue its heavyhanded treatment of its citizens, the people who are 
out there who are paying for all this fun we are having in Washington.
  So we have an agenda. Those of us who are the freshmen, the 11 
freshmen--I am very pleased we are going to be driving this train, 
keeping it on track, keeping the focus, and not forgetting. Let me give 
assurances to everyone out there: We are not going to forget what the 
mandate was of November 8.
  I yield the floor now to my very close friend from the House, where I 
served with him and was elected with him, and now he is a leader in the 
U.S. Senate, the Senator from Arizona, Senator Kyl.


                    Taxation, Regulation, Litigation

  Mr. KYL. Mr. President, during the campaign that the Senator from 
Oklahoma was just talking about that we just went through, I heard a 
phrase over and over again, ``taxation, regulation, litigation,'' the 
three problems in this country that we have to do something about. The 
Senator from Oklahoma has just spoken eloquently about the matter of 
regulation. This Congress is going to do a lot to reform the regulatory 
climate in this country, to bring some common sense back into it.
  The Judiciary Committee, on which I serve, just passed out a 
regulatory reform bill sponsored by the majority leader that is really 
going to get to the heart of some of the regulatory problems in our 
society today, bringing cost/benefit analysis and economic impact 
studies and risk assessments and peer review into the regulatory 
process, so you do not have the kind of noncommonsensical imposition of 
regulations such as those the Senator from Oklahoma was just talking 
about.
  Let me turn to the third item in that trilogy, the matter of 
litigation. We are debating today, and have been for almost 2 weeks 
now, legal liability reform. It is part of what the House of 
Representatives did, and it is part of what this Senate is committed to 
do as well, to reform our broken tort system. Some call it the 
litigation lottery. It produces a tort tax on all of America because we 
end up paying higher premiums for insurance, higher costs for products, 
and, frankly, we do not get the benefit of a lot of improvements that 
could be made in pharmaceuticals and in products and so on because the 
manufacturers are afraid to experiment with anything new because they 
may get sued, they may have to pay big damages, and their costs would 
go up.
  So what we are trying to do is reform that system so that all of 
America will benefit from improved technology, reduced insurance rates, 
reduced product costs, and, by the way, particularly for small 
businesses, not constantly suffering under the threat of being sued; 
also, of course, the physicians and the hospitals and other health care 
providers whose medical malpractice premiums have skyrocketed in recent 
years because of the possibility that somebody is going to sue them. 
They end up practicing defensive medicine, offering all kinds of 
services and tests that probably are not necessary but which they 
prescribe in order to make sure that nobody can say they did not do the 
absolute maximum that was necessary for the patient's good.
  So these are parts of the problem we are addressing in litigation 
reform. I would like to just isolate one specific one that I will be 
talking about in about an hour and a half in the context of the bill we 
are debating today. I have laid down an amendment to correct a small, 
but I think important, part of the bill that is before us today. Many 
States--most States, I suspect--have what are called alternative 
dispute resolution mechanisms, ways of resolving disputes short of 
going to trial. Trials are expensive. In the end, the people who win 
are the lawyers. So what we are trying to do is to get people not to 
always go to court but to try to resolve their differences short of 
going to court, and most States have those procedures.
  There is an error in the bill that is before us, section 103. It 
deals with alternative dispute resolution. It says when a State has 
alternative dispute resolution, the parties should use that. And that 
is fine. But then it says, if a defendant refuses to go forward when a 
plaintiff has made an offer in good faith and that defendant has 
refused the offer in good faith to go forward with the alternative 
dispute resolution, then you can assess attorney's fees and costs 
against the defendant. But there is no such provision with regard to 
the plaintiff refusing to go forward in good faith.
  Mr. President, either we should not have a penalty for either party 
refusing to go forward or there should be the same penalty on both 
parties, whichever one of them refuses to go forward in good faith. But 
you cannot have a situation where one of the parties has the dagger 
hanging over his head and the other party with no downside for refusing 
to go forward in good faith. One way or the other that has to be fixed.
  First, I said, ``Why don't we have a penalty for both parties?'' One 
objection was we should not be dictating at the Federal level what the 
States should do. Whatever people advertise there in the State, let 
that be. Then I say fine. My amendment simply strikes the penalty that 
is in the bill at the Federal level so that whatever the State law is 
the State law is. In effect, my amendment would return this alternative 
dispute resolution mechanism to the States to be enforced however the 
State law enforces it. Of course, in every State, if there is a 
penalty, the penalty applies equally to the defendant or the plaintiff, 
whichever one is refusing to go forward unreasonably.
  So, Mr. President, I think this is something I will be talking about 
a little bit later but something my colleagues will want to fix. Our 
whole justice system is about fairness. The reason we are willing to 
put our lives and our fortunes into the hands of one person, a judge or 
12 people on a jury, is because we have faith that the system is fair. 
One of the reasons we are talking about litigation reform today is 
because a lot of people do not think it is fair. It would be the height 
of unfairness to have a penalty apply to one side, the defendant, but 
not have that same penalty apply to the plaintiff for doing the same 
thing--for refusing to go forward to resolve the dispute alternative to 
a trial.
  So my amendment will simply make it the same for both plaintiffs and 
defendants and reinstate State law as the guiding principle.
  I will be talking about this a little bit later. I think it goes back 
to the whole notion we have to reform. We have to do things fairly, 
and, if we do things fairly in our society today, if people think they 
are getting a fair break regarding regulation, as the Senator from 
Oklahoma talked about, regarding taxation and regarding litigation, 
then people gladly shoulder the burdens inherent in supporting the 
Government and society at large. But when they do not think they are 
getting a fair shake--that is, when they begin to say this whole thing 
has to be changed--it has to be reformed.
  Fortunately, at least the Senate Republicans who were just elected in 
the last election are here speaking every week about these kind of 
reforms. I think we are making a difference, Mr. President.
  I know my colleague from Minnesota is here and wishes to continue the 
debate.
  I yield the floor.
  Mr. GRAMS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota [Mr. Grams] is 
recognized.


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