[Congressional Record Volume 141, Number 78 (Thursday, May 11, 1995)]
[Senate]
[Pages S6486-S6487]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         INTERSTATE TRANSPORTATION OF MUNICIPAL SOLID WASTE ACT

  The Senate continued with the consideration of the bill.
  Mr. KYL. Mr. President, while I was presiding, the Senator from New 
Hampshire made some comments relative to the amendment I had just 
introduced and spoken on. I regret he is not here, but I would like to 
respond to those remarks. They were well put, and I appreciate the 
cooperative spirit in which he gently opposed my amendment. I wish to 
respond to the points he made to illustrate why I still think my 
amendment should be adopted.
  As you will recall, my amendment provides very simply that the 
grandfathering of monopoly status that these facilities need because 
the Supreme Court has declared them unconstitutional ought to be 
limited to the period of time that it takes for these facilities to 
repay the bonds; that beyond that time there is no rationale, at least 
no rationale that the Senate ought to be a party to, that once the 
bonds are paid off, the investor's money has been returned in full, 
there is no rationale for protecting the municipality from competition 
in the handling of garbage.
  That is why my amendment would cut it off at that point and not allow 
the remaining exceptions, which include expanding the life of the 
plant, or the useful life of the plant to some unknown length of time 
with a 30-year time limit or for contracts that are in existence.
  It would limit the grandfathering to that which is necessary or 
required but not beyond.
  Mr. President, the Senator from New Hampshire made the point that 
investors believed that they would have the protection of the law and 
we ought to give it to them, and that is precisely what my amendment 
does--no less but no more. It says to those investors, you get your 
money back when the bonds are fully paid off; that then but only then 
does this exemption from the U.S. Constitution apply. So we give them 
that grace period. That is point No. 1.
  Point No. 2. The Senator from New Hampshire said, well, there is a 
provision in this carefully crafted compromise for upgrades of 
facilities. And my response to that is, yes, that is there, but it is 
not needed and certainly not deserved. It creates a giant loophole 
which in effect means that all that the owners of these plants have to 
do is to provide some kind of upgrade to their facility--I presume that 
is anything beyond usual maintenance--and up to a 30-year period they 
can foreclose all competition.
  That is un-American, it is unconstitutional, and it is not something 
that the Senate should be a party to, Mr. President. That is why my 
amendment specifically would not permit this special monopoly to exist 
beyond the time that it takes to repay the bonds. You cannot just fix 
your facility up and say we have extended its useful life and we want 
to continue to have a monopoly during the useful life of the plant.
  That would not be a justifiable reason, and I know of no reason which 
justifies that particular exemption. None has been suggested.
  Third, our colleague from New Hampshire made the point that innocent 
people were impacted as a result of the Supreme Court decision, and 
that is true. My guess is that most of the people who invested in these 
bonds had no idea that the Supreme Court would declare the whole 
practice unconstitutional.
  Agreeing with the principle that those innocent people should be 
protected, my amendment does precisely that. It protects them. It says 
that until those bonds are paid off, the monopoly status of the 
facility is protected. So, in other words, the bonds get paid off, the 
investors get made whole, all of those innocent people have their 
investment returned, and they lose nothing as a result of my amendment.
  Mr. President, there are other innocent people involved in this as 
well. These are the people who are required to pay the higher taxes 
because of the unreasonably high prices extracted by virtue of the fact 
that this is a monopoly. That is why we have antitrust laws. That is 
why our Constitution contains a clause that says that States cannot 
interfere with interstate commerce.
  But that is what has been done in this case. That is what the Supreme 
Court outlawed. And the U.S. Senate ought to pay attention not only to 
the innocent people who invested, who are totally protected under my 
amendment, but also the totally innocent people of the State who are 
having to pay two, three, four times as much; the EPA estimates 40 
percent more than they would otherwise have to pay as a result of this 
monopoly status that is being granted. So if the argument is that we 
should protect innocent people, then the Senate should adopt my 
amendment.
  Finally, and the real reason why I think there is an objection to my 
amendment is that it might unravel a carefully crafted compromise.
  Mr. President, that is the unprincipled but very pragmatic reason 
frequently given to opposing amendments in this Chamber and in the 
other body. We have all been a party to those. It is 
[[Page S6487]] necessary to craft legislation that is required to make 
compromises and no one argues against that practice.
  But there are certain situations where there are fundamental 
principles involved. And where fundamental principles are involved, we 
need to be very, very careful about justifying opposition to principles 
on the basis of compromise. In other words, Mr. President, there are 
some things that ought not to be compromised. One of them is the United 
States Constitution.
  When the Supreme Court says that a practice is unconstitutional, we 
ought to be very, very careful how we override that decision. We ought 
to do it in the narrowest possible way. That is what my amendment does. 
It says, until the bonds are repaid, we will grant these municipalities 
a monopoly power that nobody else can get, that the United States 
Supreme Court says is unconstitutional but, recognizing that investment 
decisions were made based upon the previous existing law, we will 
acknowledge that that exemption should last at least until the bonds 
are paid off. But my amendment says, at that point, no further. We do 
not need to go any further. No one else needs protection here.
  All we are doing at that point is creating a monopoly protection 
which creates higher prices and prevents the free market from 
operating. Now it may be true that standing on that principle will 
cause a bill to unravel; that if my amendment were to pass, there is 
insufficient support then for the legislation to get it passed. My 
response to that is that we do much better politically in this body 
when we do what is right and that, if we will stick to principles, in 
the end we will get the kind of legislation that is necessary; that we 
make mistakes when we compromise principle for the sake of getting 
something through rather than for the sake of doing what is right.
  This is a constitutional issue. I would perhaps suggest an analogy 
here.
  Mr. President, what if a municipality had passed an ordinance 
declaring that certain speech could no longer be engaged in in the 
community, and everyone rose up in arms and said, ``Why that is 
unconstitutional''? A lawsuit was brought and the Supreme Court says, 
``That is correct. You cannot impede free speech. Municipality, your 
actions are unconstitutional.'' And the municipality said, ``But we 
have a real need to impede free speech in this particular area.''
  Do you not think that the U.S. Senate would be very, very careful 
about granting an exemption from the Constitution, in effect, here; 
would be very, very careful? Obviously, we could not constitutionally 
do that, but we would want to be as limited as possible in crafting 
legislation that would meet the constitutional standards the Court laid 
down.
  That is what we should be doing in this case, because the Court has 
already spoken. The Court has said that States that have this flow 
control do so in violation of the U.S. Constitution.
  So, in trying to figure out a way around that, we ought to be as 
careful and as limited as possible, not as expansive as we can think 
of. And that is why my amendment, I submit, is the only constitutional, 
commonsense course of action that the Senate can take to protect those 
situations where there has been an investment made until the investment 
is paid off. But, after that, no more monopoly.
  And if that should cause the compromise to break apart, then it would 
be necessary, as the Senator from New Hampshire said, to go back to the 
drawing board and redo it. And I think that would be a good thing. But 
my hope would be, Mr. President, that it would not cause the compromise 
to fall apart; that we would all recognize that a limited exemption is 
all right to pass, we should pass it, but that we should not do more 
than that simply because some Senators might want to, in effect, 
overreach beyond what is really necessary or appropriate given the 
Supreme Court's decision.
  So with all due respect to my friend and colleague from New 
Hampshire, who really helped to make the argument in principle to what 
I am saying but found it necessary to object nonetheless because of the 
position he finds himself in, I suggest the best way to a deal with 
this issue is to adopt my amendment, provide full protection for all 
those who need protection, but to limit the exemption to that point.
  Mr. President, we are going to be voting on the Kyl amendment at 2:30 
and, unless our colleagues, who have not been here on the floor, are 
watching from wherever they may be, it is going to be very confusing 
what this is all about, because this was not part of the committee 
action. I just urge my colleagues to consider this, to ask questions 
about this, come to the floor to engage me in a colloquy if that is 
their desire. I would be happy to answer any questions I can.
  No one--no one--has made the case why we should extend to the useful 
life of a project a special exemption after the bonds have already been 
paid off; how it is that an operator cannot simply add something to the 
plant and say they have extended the useful life, thereby going to the 
full 30-year limit of this legislation. No one has made the case of why 
that should be the law. And until that case is made, if it can be made, 
we should not accept that proposition in dealing with something as 
sacred as a constitutional principle here.
  Mr. President, I will ask my colleagues, again, to support the Kyl 
amendment when we vote on it at 2:30.
  At this time, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The absence of a quorum having been suggested, 
the clerk will call the roll.
  Mr. DeWINE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DeWINE. Mr. President, Mr. President, I ask unanimous consent to 
proceed as if in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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