[Congressional Record Volume 141, Number 153 (Thursday, September 28, 1995)]
[House]
[Page H9601]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




PROVIDING FOR CONSIDERATION OF H.R. 1170, THREE-JUDGE COURT FOR CERTAIN 
                              INJUNCTIONS

  Mr. DREIER. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 227 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 227

       Resolved, That at any time after the adoption of this 
     resolution the Speaker may, pursuant to clause 1(b) of rule 
     XXIII, declare the House resolved into the Committee of the 
     Whole House on the state of the Union for consideration of 
     the bill (H.R. 1170) to provide that cases challenging the 
     constitutionality of measures passed by State referendum be 
     heard by a 3-judge court. The first reading of the bill shall 
     be dispensed with. General debate shall be confined to the 
     bill and shall not exceed one hour equally divided and 
     controlled by the chairman and ranking minority member of the 
     Committee on the Judiciary. After general debate the bill 
     shall be considered for amendment under the five-minute rule. 
     It shall be in order to consider as an original bill for the 
     purpose of amendment under the five-minute rule the amendment 
     in the nature of a substitute recommended by the Committee on 
     the Judiciary now printed in the bill. Each section of the 
     committee amendment in the nature of a substitute shall be 
     considered as read. During consideration of the bill for 
     amendment, the Chairman of the Committee of the Whole may 
     accord priority in recognition on the basis of whether the 
     Member offering an amendment has caused it to be printed in 
     the portion of the Congressional Record designated for that 
     purpose in clause 6 of rule XXIII. Amendments so printed 
     shall be considered as read. At the conclusion of 
     consideration of the bill for amendment the Committee shall 
     rise and report the bill to the House with such amendments as 
     may have been adopted. Any Member may demand a separate vote 
     in the House on any amendment adopted in the Committee of the 
     Whole to the bill or to the committee amendment in the nature 
     of a substitute. The previous question shall be considered as 
     ordered on the bill and amendments thereto final passage 
     without intervening motion except one motion to recommit 
     with or without instructions.

  The CHAIRMAN. The gentleman from California [Mr. Dreier] is 
recognized for 1 hour.
  Mr. DREIER. Mr. Speaker, for the purpose of debate only, I yield the 
customary 30 minutes to my good friend the gentleman from Woodland 
Hills, CA [Mr. Beilenson], pending which I yield myself such time as I 
may consume.
  (Mr. DREIER asked and was given permission to revise and extend his 
remarks and include extraneous material.)
  Mr. DREIER. Mr. Speaker, this is an open rule for consideration of 
the bill, H.R. 1170, legislation to bolster in American voters the 
confidence that their democratic system is fair and just.
  The rule provides for 1 hour of general debate divided equally 
between the chairman and ranking minority member of the Committee on 
the Judiciary. The rule makes in order the Committee on the Judiciary 
amendment in the nature of a substitute as the original bill for the 
purpose of amendment, and each section will be considered as read.
  Under this open rule amendment process, Members who have preprinted 
their amendments in the Record prior to their consideration will be 
given priority and recognition to offer their amendments if otherwise 
consistent with House rules. Finally, the rule provides for one motion 
to recommit, with or without instructions.
  Mr. Speaker, we are at a critical time in our Nation's history. The 
very institutions of American democracy are threatened with increasing 
public discontentment, or at least apathy. Too many Americans are 
losing faith in our system, threatening the very foundation of the 
democracy that has served as the inspiration for people striving for 
freedom and democracy around the globe.
  H.R. 1170, the first legislation introduced by my California 
colleague, the gentleman from Palm Springs [Mr. Bono], a new member of 
the Committee on the Judiciary, attempts to address in an exceedingly 
responsible fashion a legal practice that is undermining the faith that 
voters have in their statewide referendum systems. Basically, it is 
judge shopping.
  As we have learned in the State of California, special interests 
often shop around to find an ideologically biased Federal judge to stop 
State referenda from taking effect by gaining a temporary injunction 
pending final court action. Of course, such final action can take many 
years.
  H.R. 1170 is not an indictment of any particular judge. Nor is it an 
indictment of any past legal decision which resulted in a referendum in 
California, or any other State, not taking effect after it was passed 
by the State's voters. Instead, the legislation takes direct aim at the 
practice of judge shopping that stacks the deck in legal challenges in 
order to overturn the clearly expressed will of a State's populace.
  At a time when many Americans believe that our political and legal 
systems are stacked in favor of special interests over the mass of 
voters and taxpayers, it is especially unsettling when an overwhelming 
statewide vote can be overturned, often in a matter of days, by a 
single Federal judge.
  For example, and this actually was really the genesis of this 
legislation, when the people of California approved the highly 
emotional Proposition 187 by an overwhelming 3 to 2 margin, a single 
Federal judge in San Francisco issued an injunction when the polls had 
been closed for 24 hours keeping the measure from ever taking effect.
  It does not matter whether the injunction in that case was 
technically warranted. The very fact that a Federal judge with a 
lifetime judicial appointment can single-handedly overturn the directly 
expressed will of the people of the State can, and does, undermine 
public confidence in our system.
  Using a three-judge Federal panel to determine injunctions in cases 
of statewide voter referenda, as they are currently employed in cases 
involving voting rights, is a sensible insurance policy to bolster 
public confidence in our democratic process.
  Mr. Speaker this rule provides, as I said, for an open amendment 
process. It is a fair rule, respectful of the right of every Member of 
this House to participate in debate.
  There was no opposition to the rule in the Committee on Rules, and I 
look forward to rapid and bipartisan approval of the rule now so that 
the House can get down to the very important business of considering 
this bill.
  Mr. Speaker, I include for the Record the following material.

  THE AMENDMENT PROCESS UNDER SPECIAL RULES REPORTED BY THE RULES COMMITTEE,\1\ 103D CONGRESS V. 104TH CONGRESS 
                                           [As of September 28, 1995]                                           
----------------------------------------------------------------------------------------------------------------
                                                  103d Congress                        104th Congress           
              Rule type              ---------------------------------------------------------------------------
                                       Number of rules    Percent of total   Number of rules    Percent of total
----------------------------------------------------------------------------------------------------------------
Open/Modified-open \2\..............                 46                 44                 50                 74
Modified Closed \3\.................                 49                 47                 15                 22
Closed \4\..........................                  9                  9                  3                  4
                                     ---------------------------------------------------------------------------
      Totals:.......................                104                100                 68                100
----------------------------------------------------------------------------------------------------------------
\1\ This table applies only to rules which provide for the original consideration of bills, joint resolutions or
  budget resolutions and which provide for an amendment process. It does not apply to special rules which only  
  waive points of order against appropriations bills which are already privileged and are considered under an   
  open amendment process under House rules.                                                                     
\2\ An open rule is one under which any Member may offer a germane amendment under the five-minute rule. A      
  modified open rule is one under which any Member may offer a germane amendment under the five-minute rule     
  subject only to an overall time limit on the amendment process and/or a requirement that the amendment be     
  preprinted in the Congressional Record.                                                                       
\3\ A modified closed rule is one under which the Rules Committee limits the amendments that may be offered only
  to those amendments designated in the special rule or the Rules Committee report to accompany it, or which    
  preclude amendments to a particular portion of a bill, even though the rest of the bill may be completely open
  to amendment.                                                                                                 
\4\ A closed rule is one under which no amendments may be offered (other than amendments recommended by the     
  committee in reporting the bill).                                                                             


                          SPECIAL RULES REPORTED BY THE RULES COMMITTEE, 104TH CONGRESS                         
                                           [As of September 28, 1995]                                           
----------------------------------------------------------------------------------------------------------------
  H. Res. No. (Date                                                                                             
       rept.)               Rule type             Bill No.                 Subject           Disposition of rule
----------------------------------------------------------------------------------------------------------------
H. Res. 38 (1/18/95)  O...................  H.R. 5..............  Unfunded Mandate Reform..  A: 350-71 (1/19/   
                                                                                              95).              
H. Res. 44 (1/24/95)  MC..................  H. Con. Res. 17.....  Social Security..........  A: 255-172 (1/25/  
                                            H.J. Res. 1.........  Balanced Budget Amdt.....   95).              
H. Res. 51 (1/31/95)  O...................  H.R. 101............  Land Transfer, Taos        A: voice vote (2/1/
                                                                   Pueblo Indians.            95).              
H. Res. 52 (1/31/95)  O...................  H.R. 400............  Land Exchange, Arctic      A: voice vote (2/1/
                                                                   Nat'l. Park and Preserve.  95).              
H. Res. 53 (1/31/95)  O...................  H.R. 440............  Land Conveyance, Butte     A: voice vote (2/1/
                                                                   County, Calif.             95).              
H. Res. 55 (2/1/95).  O...................  H.R. 2..............  Line Item Veto...........  A: voice vote (2/2/
                                                                                              95).              
H. Res. 60 (2/6/95).  O...................  H.R. 665............  Victim Restitution.......  A: voice vote (2/7/
                                                                                              95).              
H. Res. 61 (2/6/95).  O...................  H.R. 666............  Exclusionary Rule Reform.  A: voice vote (2/7/
                                                                                              95).              
H. Res. 63 (2/8/95).  MO..................  H.R. 667............  Violent Criminal           A: voice vote (2/9/
                                                                   Incarceration.             95).              
H. Res. 69 (2/9/95).  O...................  H.R. 668............  Criminal Alien             A: voice vote (2/10/
                                                                   Deportation.               95).              
H. Res. 79 (2/10/95)  MO..................  H.R. 728............  Law Enforcement Block      A: voice vote (2/13/
                                                                   Grants.                    95).              
H. Res. 83 (2/13/95)  MO..................  H.R. 7..............  National Security          PQ: 229-100; A: 227-
                                                                   Revitalization.            127 (2/15/95).    
H. Res. 88 (2/16/95)  MC..................  H.R. 831............  Health Insurance           PQ: 230-191; A: 229-
                                                                   Deductibility.             188 (2/21/95).    
H. Res. 91 (2/21/95)  O...................  H.R. 830............  Paperwork Reduction Act..  A: voice vote (2/22/
                                                                                              95).              
H. Res. 92 (2/21/95)  MC..................  H.R. 889............  Defense Supplemental.....  A: 282-144 (2/22/  
                                                                                              95).              
H. Res. 93 (2/22/95)  MO..................  H.R. 450............  Regulatory Transition Act  A: 252-175 (2/23/  
                                                                                              95).              
H. Res. 96 (2/24/95)  MO..................  H.R. 1022...........  Risk Assessment..........  A: 253-165 (2/27/  
                                                                                              95).              
H. Res. 100 (2/27/    O...................  H.R. 926............  Regulatory Reform and      A: voice vote (2/28/
 95).                                                              Relief Act.                95).              
H. Res. 101 (2/28/    MO..................  H.R. 925............  Private Property           A: 271-151 (3/2/   
 95).                                                              Protection Act.            95).              
H. Res. 103 (3/3/95)  MO..................  H.R. 1058...........  Securities Litigation      ...................
                                                                   Reform.                                      
H. Res. 104 (3/3/95)  MO..................  H.R. 988............  Attorney Accountability    A: voice vote (3/6/
                                                                   Act.                       95).              
H. Res. 105 (3/6/95)  MO..................  ....................  .........................  A: 257-155 (3/7/   
                                                                                              95).              
H. Res. 108 (3/7/95)  Debate..............  H.R. 956............  Product Liability Reform.  A: voice vote (3/8/
                                                                                              95).              
H. Res. 109 (3/8/95)  MC..................  ....................  .........................  PQ: 234-191 A: 247-
                                                                                              181 (3/9/95).     
H. Res. 115 (3/14/    MO..................  H.R. 1159...........  Making Emergency Supp.     A: 242-190 (3/15/  
 95).                                                              Approps..                  95).              
H. Res. 116 (3/15/    MC..................  H.J. Res. 73........  Term Limits Const. Amdt..  A: voice vote (3/28/
 95).                                                                                         95).              
H. Res. 117 (3/16/    Debate..............  H.R. 4..............  Personal Responsibility    A: voice vote (3/21/
 95).                                                              Act of 1995.               95).              
H. Res. 119 (3/21/    MC..................  ....................  .........................  A: 217-211 (3/22/  
 95).                                                                                         95).              
H. Res. 125 (4/3/95)  O...................  H.R. 1271...........  Family Privacy Protection  A: 423-1 (4/4/95). 
                                                                   Act.                                         
H. Res. 126 (4/3/95)  O...................  H.R. 660............  Older Persons Housing Act  A: voice vote (4/6/
                                                                                              95).              
H. Res. 128 (4/4/95)  MC..................  H.R. 1215...........  Contract With America Tax  A: 228-204 (4/5/   
                                                                   Relief Act of 1995.        95).              
H. Res. 130 (4/5/95)  MC..................  H.R. 483............  Medicare Select Expansion   A: 253-172 (4/6/  
                                                                                              95).              
H. Res. 136 (5/1/95)  O...................  H.R. 655............  Hydrogen Future Act of     A: voice vote (5/2/
                                                                   1995.                      95).              
H. Res. 139 (5/3/95)  O...................  H.R. 1361...........  Coast Guard Auth. FY 1996  A: voice vote (5/9/
                                                                                              95).              
H. Res. 140 (5/9/95)  O...................  H.R. 961............  Clean Water Amendments...  A: 414-4 (5/10/95).
H. Res. 144 (5/11/    O...................  H.R. 535............  Fish Hatchery--Arkansas..  A: voice vote (5/15/
 95).                                                                                         95).              
H. Res. 145 (5/11/    O...................  H.R. 584............  Fish Hatchery--Iowa......  A: voice vote (5/15/
 95).                                                                                         95).              
H. Res. 146 (5/11/    O...................  H.R. 614............  Fish Hatchery--Minnesota.  A: voice vote (5/15/
 95).                                                                                         95).              
H. Res. 149 (5/16/    MC..................  H. Con. Res. 67.....  Budget Resolution FY 1996  PQ: 252-170 A: 255-
 95).                                                                                         168 (5/17/95).    
H. Res. 155 (5/22/    MO..................  H.R. 1561...........  American Overseas          A: 233-176 (5/23/  
 95).                                                              Interests Act.             95).              
H. Res. 164 (6/8/95)  MC..................  H.R. 1530...........  Nat. Defense Auth. FY      PQ: 225-191 A: 233-
                                                                   1996.                      183 (6/13/95).    
H. Res. 167 (6/15/    O...................  H.R. 1817...........  MilCon Appropriations FY   PQ: 223-180 A: 245-
 95).                                                              1996.                      155 (6/16/95).    
H. Res. 169 (6/19/    MC..................  H.R. 1854...........  Leg. Branch Approps. FY    PQ: 232-196 A: 236-
 95).                                                              1996.                      191 (6/20/95).    
H. Res. 170 (6/20/    O...................  H.R. 1868...........  For. Ops. Approps. FY      PQ: 221-178 A: 217-
 95).                                                              1996.                      175 (6/22/95).    
H. Res. 171 (6/22/    O...................  H.R. 1905...........  Energy & Water Approps.    A: voice vote (7/11/
 95).                                                              FY 1996.                   95).              
H. Res. 173 (6/27/    C...................  H.J. Res. 79........  Flag Constitutional        PQ: 258-170 A: 271-
 95).                                                              Amendment.                 152 (6/28/95).    
H. Res. 176 (6/28/    MC..................  H.R. 1944...........  Emer. Supp. Approps......  PQ: 236-194 A: 234-
 95).                                                                                         192 (6/29/95).    
H. Res. 185 (7/11/    O...................  H.R. 1977...........  Interior Approps. FY 1996  PQ: 235-193 D: 192-
 95).                                                                                         238 (7/12/95).    
H. Res. 187 (7/12/    O...................  H.R. 1977...........  Interior Approps. FY 1996  PQ: 230-194 A: 229-
 95).                                                              #2.                        195 (7/13/95).    
H. Res. 188 (7/12/    O...................  H.R. 1976...........  Agriculture Approps. FY    PQ: 242-185 A:     
 95).                                                              1996.                      voice vote (7/18/ 
                                                                                              95).              
H. Res. 190 (7/17/    O...................  H.R. 2020...........  Treasury/Postal Approps.   PQ: 232-192 A:     
 95).                                                              FY 1996.                   voice vote (7/18/ 
                                                                                              95).              
H. Res. 193 (7/19/    C...................  H.J. Res. 96........  Disapproval of MFN to      A: voice vote (7/20/
 95).                                                              China.                     95).              
H. Res. 194 (7/19/    O...................  H.R. 2002...........  Transportation Approps.    PQ: 217-202 (7/21/ 
 95).                                                              FY 1996.                   95).              
H. Res. 197 (7/21/    O...................  H.R. 70.............  Exports of Alaskan Crude   A: voice vote (7/24/
 95).                                                              Oil.                       95).              
H. Res. 198 (7/21/    O...................  H.R. 2076...........  Commerce, State Approps.   A: voice vote (7/25/
 95).                                                              FY 1996.                   95).              
H. Res. 201 (7/25/    O...................  H.R. 2099...........  VA/HUD Approps. FY 1996..  A: 230-189 (7/25/  
 95).                                                                                         95).              
H. Res. 204 (7/28/    MC..................  S. 21...............  Terminating U.S. Arms      A: voice vote (8/1/
 95).                                                              Embargo on Bosnia.         95).              
H. Res. 205 (7/28/    O...................  H.R. 2126...........  Defense Approps. FY 1996.  A: 409-1 (7/31/95).
 95).                                                                                                           
H. Res. 207 (8/1/95)  MC..................  H.R. 1555...........  Communications Act of      A: 255-156 (8/2/   
                                                                   1995.                      95).              
H. Res. 208 (8/1/95)  O...................  H.R. 2127...........  Labor, HHS Approps. FY     A: 323-104 (8/2/   
                                                                   1996.                      95).              
H. Res. 215 (9/7/95)  O...................  H.R. 1594...........  Economically Targeted      A: voice vote (9/12/
                                                                   Investments.               95).              
H. Res. 216 (9/7/95)  MO..................  H.R. 1655...........  Intelligence               A: voice vote (9/12/
                                                                   Authorization FY 1996.     95).              
H. Res. 218 (9/12/    O...................  H.R. 1162...........  Deficit Reduction Lockbox  A: voice vote (9/13/
 95).                                                                                         95).              
H. Res. 219 (9/12/    O...................  H.R. 1670...........  Federal Acquisition        A: 414-0 (9/13/95).
 95).                                                              Reform Act.                                  
H. Res. 222 (9/18/    O...................  H.R. 1617...........  CAREERS Act..............  A: 388-2 (9/19/95).
 95).                                                                                                           
H. Res. 224 (9/19/    O...................  H.R. 2274...........  Natl. Highway System.....  PQ: 241-173 A: 375-
 95).                                                                                         39-1 (9/20/95).   
H. Res. 225 (9/19/    MC..................  H.R. 927............  Cuban Liberty & Dem.       A: 304-118 (9/20/  
 95).                                                              Solidarity.                95).              
H. Res. 226 (9/21/    O...................  H.R. 743............  Team Act.................  A: 344-66-1 (9/27/ 
 95).                                                                                         95).              
H. Res. 227 (9/21/    O...................  H.R. 1170...........  3-Judge Court............  ...................
 95).                                                                                                           
H. Res. 228 (9/21/    O...................  H.R. 1601...........  Internatl. Space Station.  A: voice vote (9/27/
 95).                                                                                         95).              
H. Res. 230 (9/27/    C...................  H.J. Res. 108.......  Continuing Resolution FY   A: voice vote (9/28/
 95).                                                              1996.                      95).              
----------------------------------------------------------------------------------------------------------------
Codes: O-open rule; MO-modified open rule; MC-modified closed rule; C-closed rule; A-adoption vote; D-defeated; 
  PQ-previous question vote. Source: Notices of Action Taken, Committee on Rules, 104th Congress.               

                              {time}  1145

  Mr. Speaker, I reserve the balance of my time.
  Mr. BEILENSON. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I thank the gentleman from California for yielding the 
customary 30 minutes of debate time to me.
  Mr. Speaker, we support this open rule for H.R. 1170, the bill 
mandating that three-judge panels review constitutional challenges of 
State referenda.
  With respect to the bill itself, we are somewhat mystified at the 
manner in which it has moved through committee and on to the House 
floor.
  According to the dissenting views in the committee report, the 
Committee on the Judiciary rushed through the hearing and markup of 
H.R. 1170 before the Judicial Conference of the United States had an 
opportunity to consider the bill and provide the committee with the 
benefit of its views.
  The conference's official views would have been especially important 
to the Committee on the Judiciary in this case since the conference has 
consistently, since 1970, opposed three-judge courts except for certain 
reapportionment cases.
  The 12 members signing the dissenting views noted that, and I quote 
them:

     not for the first time this year, the Judiciary Committee 
     majority has ridden roughshod over the Federal judiciary, 
     taking action on measures with a significant impact on the 
     workload of the Federal judiciary without waiting the short 
     period of time it would take to permit the Judicial 
     Conference to consider those measures and give the committee 
     the benefit of its views.

  Mr. Speaker, the Committee on Rules should have a fundamental concern 
about process, about the manner in which committees that come to us 
have considered the legislation under their jurisdiction.
  We ought to ensure that there is no perception that the standing 
committees have given inadequate thought to measures they report out to 
the floor for consideration by the full membership of the House, that 
there has not been a sufficiently deliberative committee process prior 
to consideration by the full House.
  That is especially applicable in the consideration of legislation 
such as this, that has no need at all to be rushed.
  Mr. Speaker, H.R. 1170 was written because of frustration with the 
injunction granted by a Federal court preventing immediate enforcement 
of California's proposition 187.
  As a Californian, I think it is fair to say that everyone in 
California, even those of us who voted against this very controversial 
immigration-related referendum, is anxious for a resolution of the 
matter.
  It is also fair to say that many proponents of this referendum knew 
from the beginning that it had very serious constitutional problems and 
that those problems would hold up its implementation because they would 
have to be tested in court.
  In fact, the major proponents of proposition 187 always described it 
as a means of sending a message to the Federal Government. They knew it 
would run into the very problems this bill is seeking to prevent, not 
only in Federal courts but also in the State courts, one of which, 
incidentally, has issued an injunction against its taking effect 
because it raised substantial questions about the State's involvement 
in Federal areas of jurisdiction.
  Members should also be very concerned, we think, about voting for 
legislation like this that would mandate an appeal directly to the 
Supreme Court from the decision of a three-judge court. The Judicial 
Conference has argued that this procedure bypasses the screening and 
fact-finding that occurs at the court of appeals level, and circumvents 
the development of legal interpretations through the various circuits.
  As the Judicial Conference recently wrote, and I quote them:

       Bypassing intermediate appellate review prior to ultimate 
     consideration of constitutional issues by the Supreme Court 
     is an extraordinary measure that should be left to the 
     Supreme Court in the exercise of its constitutional 
     responsibilities.

  Members should also carefully consider whether Congress should be 
saying, in effect, that one method of enacting a State law is preferred 
over another. The premise of H.R. 1170 is that a State law enacted by a 
ballot measure passed by the voters is somehow more worthy than one 
enacted by a State legislature, and that the Federal judiciary should 
be mandated to give preferential treatment to State laws adopted by 
referendum. As UCLA law professor Evan Caminker recently said, and I 
quote:

       It ought to make no difference that it is a ballot measure, 
     because the people have no greater authority to transgress 
     the Constitution than does the State legislature.

  Mr. Speaker,, we do support this rule. It is an open rule, but we are 
concerned about the legislation and the need for it and the need to 
rush it to judgment here on the floor. We urge the adoption of the rule 
so that we can proceed today with the debate on this bill and, 
hopefully, a full discussion of what it will and will not accomplish.
  Mr. Speaker, I have no requests for time, and I yield back the 
balance of my time.
  Mr. DREIER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this is an open rule and does not seem to be 
controversial. I urge an ``aye'' vote on this rule. I am a strong 
supporter of the legislation of the gentleman from California, Mr. 
Bono, and should say that I believe it is a great day when Mr. Bono has 
seen something that he believes is wrong and needs to be corrected and 
has stepped forward and introduced this legislation and has come before 
our Committee on Rules and will be in just a very few minutes speaking 
here on the floor for this legislation.
  Mr. Speaker, I yield back the balance of my time, and I move the 
previous question on the resolution.
  The previous question was ordered.
  The resolution was agreed to.
  A motion to reconsider was laid on the table.

                          ____________________