[Congressional Record Volume 141, Number 153 (Thursday, September 28, 1995)]
[House]
[Pages H9601-H9625]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               THREE-JUDGE COURT FOR CERTAIN INJUNCTIONS

  The SPEAKER pro tempore. Pursuant to House Resolution 227 and rule 
XXIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the consideration of the bill, H.R. 1170.

                              {time}  1151


                     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 consideration of the bill (H.R. 
1170) to provide that cases challenging the constitutionality of 
measures passed by State referendum be heard by a three-judge court, 
with Mr. Ewing in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered as having 
been read the first time.
  Under the rule, the gentleman from California [Mr. Moorhead] and the 
gentlewoman from Colorado [Mrs. Schroeder] each will be recognized for 
30 minutes.
  The Chair recognizes the gentleman from California [Mr. Moorhead].
  Mr. MOORHEAD. Mr. Chairman, I yield myself such time as I may 
consume.
  (Mr. MOORHEAD asked and was given permission to revise and extend his 
remarks.)
  Mr. MOORHEAD. Mr. Chairman, I rise in support of H.R. 1170, which 
provides for a three-judge court review of statewide referenda.
  H.R. 1170 provides that requests for injunctions in cases challenging 
the constitutionality of measures passed by State referendum must be 
heard by a three-judge panel. Like other Federal legislation containing 
a provision providing for a hearing by a three-judge court, H.R. 1170 
is designed to protect voters in the exercise of their vote and to 
further protect the results of that vote. It requires that legislation 
voted upon and approved directly by the populace of a State be afforded 
the protection of a three-judge court pursuant to 28 U.S.C. 2284 when 
an application for an injunction is brought in Federal court to arrest 
the enforcement of the referendum on the premise that the referendum is 
unconstitutional.

  In effect, where the entire populace of a State democratically 
exercises a direct vote on an issue, one Federal judge will not be able 
to issue an injunction preventing the enforcement of the will of the 
people of that State. Rather, three judges, at the trial level, 
according to procedures already provided by statute, will hear the 
application for an injunction and determine whether the requested 
injunction should issue. An appeal is taken directly to the Supreme 
Court, expediting the enforcement of the referendum if the final 
decision is that the referendum is constitutional. Such an expedited 
procedure is already provided for in other Voting Rights Act cases.
  H.R. 1170 recognizes that referenda reflect, more than any other 
process, the one-person, one-vote system, and seeks to protect a 
fundamental part of our national foundation.
  Unlike other acts which provided for three-judge court consideration 
of constitutional challenges to State laws prior to the abolishment of 
many such panels in 1976, H.R. 1170 is specifically limited to State 
laws which are voted on directly by the entire populace of a State. 
This legislation more closely parallels apportionment and Voting Rights 
Act cases which traditionally have been granted three-judge court panel 
consideration by Congress because of the importance of such cases and 
because such cases are presented so rarely they do not present the same 
burden on the courts as cases which involve constitutional challenges 
to general State laws passed by the ordinary State legislative process. 
Thirty-six States have some sort of referendum system.
  A Congressional Research Service survey conducted on March 9, 1995, 
reveals that over the past 10 years, only 10 cases in the Nation would 
have been eligible for review by the three-judge court procedure 
provided under H.R. 1170. Given that this statute would only require a 
three-judge panel in actions for injunctive relief which attack the 
constitutionality of a state-wide referendum, the burden on the 
judiciary as a result of this legislation is very small. The importance 
of this bill to Federal-State relations, however, is great.
  H.R. 1170 will assure that State laws adopted by referendum or 
initiative, reflecting the direct will of the electorate of a State on 
a given issue, will be afforded greater reverence than measures passed 
generally by representative bodies because of their importance and 
their expression of the direct vote of the populace of a State.
  The use of a three-judge court is imperative to the proper balance of 
State-Federal relations in cases such as these where one Federal judge 
can otherwise impede the direct will of the people of a State because 
he or she disagrees with the constitutionality of the provision passed. 
A three-judge court panel will help to provide fairer, less politically 
motivated consideration of cases.
  Mr. Chairman, if a law passed directly by the majority of the people 
of a State is unconstitutional, then the people have a right to a final 
decision on the merits as soon as practicable. H.R. 1170, as reported 
by the Committee on the Judiciary, will safeguard the direct expression 
of democracy, and preserve individual voting rights.
  I urge a favorable vote on H.R. 1170.
  Mr. Chairman, I reserve the balance of my time.
  Mrs. SCHROEDER. Mr. Chairman, I yield myself such time as I may 
consume.
  (Mrs. SCHROEDER asked and was given permission to revise and extend 
her remarks.)
  Mrs. SCHROEDER. Mr. Chairman, on this bill, can I just say to my 
colleagues, let us talk? I mean, this sounds like something very easy, 
but it is very complex and I think it is not a solution for the problem 
that some are saying it is.
  My fear is, whenever we adopt something telling people we have just 
solved a problem and then they later find out we have not solved it at 
all, it only builds voter frustration.
  It is very clear that this bill arose out of Californians' 
frustrations with having passed proposition 187 and then having had a 
Federal judge say that that proposition was unconstitutional. Listen to 
the words, that is what they are saying. So they are saying, well, that 
judge was probably biased and what we really need is a three-judge 
panel and that would not happen.
  Let us go to that very issue, because this would not have solved, if 
we had this on the books at the time that proposition 187 went to the 
courts, this would not have solved that problem.

                              {time}  1200

  No. 1, the State court judge also held it was unconstitutional. This 
goes to the Federal court, so it would not have done anything about the 
State court.
  No. 2, enough time has passed so the Federal judge who held it was 
unconstitutional, people had time to appeal it to the court of appeals, 
which are three Federal judges, and they unanimously held it was also 
unconstitutional. So we have the State court saying it is 
unconstitutional, we have the Federal court saying it is 
unconstitutional. And to stand up and say that if we pass today a bill 
1170, which will solve these kind of issues, is really, I think, not 
accurate.
  Now, let me also say there are some other problems with this bill. We 
are saying to the States that if a legislature passes a bill to which 
citizens have a challenge on constitutionality, that will be treated 
differently than if there is a referendum.
  Now, why? The Constitution is the Constitution, and the courts are 
the courts, and why isn't a constitutional issue, whether it is passed 
by the legislature or passed by referendum, equally as important to 
deal with in the same way? I do not understand that, and I think people 
would think there is an awful lot of arrogance if we start deciding one 
requires more judges than the other or whatever.
  There are other problems with this. In 1976, both the House and the 
Senate, I believe unanimously, repealed this very same procedure on a 
three judge court. Why? Well, there was all sorts of rhetoric at that 
time about how it was the worst idea that ever happened, because what 
we are really doing today by going back and undoing what we did in 1976 
is we are mandating that Federal courts have to act a certain way.
  Everybody talks about mandates, and one more time we have got one 
branch mandating on another branch how they are going to allocate their 
resources. On the one hearing that we did have, the Federal courts were 
very clear that these three judge panels are very difficult to deal 
with.
  Why? Because each judge in every Federal circuit is up to here with 
their agenda. They have got drug cases, criminal cases, all sorts of 
cases. There is no American that does not know we have a terrific 
backlog and all sorts of pressure on the Federal courts. If instead of 
going to one judge you now have to pull three judges out of their 
courtroom and you have to put this at the front of everything, you are 
going to be delaying all sorts of other issues and all sorts of other 
progress, and you are not giving the courts more resources, you are not 
doing everything else.
  So this is a judicial mandate. The Federal courts have spoken very 
clearly through their policy branch, under Justice Rehnquist, who is 
not a left-leaning liberal, for heaven's sake. They have spoken very 
clearly that they think this is not the right bill; this is the wrong 
bill. They hope people vote against this bill because of the tremendous 
management problems it will give the Federal courts.
  When you look at many of the other issues around, you find that the 
other thing this bill does is it mandates each one of these coming from 
a referendum will go from the three-judge panel right to the Supreme 
Court, and that the Supreme Court will not have any option as to 
whether or not to take the case. They must take the case.
  So we are also mandating the Supreme Court must have to do this. Now, 
this is also very critical, because I think, again, every American 
knows there are all sorts of issues that want to get to the Supreme 
Court. The Supreme Court has a process. This will be much more complex 
for the Supreme Court to handle than any other case, because any other 
case comes to the Supreme Court with an appellate decision from an 
appellate court. This will not be an appellate-type decision. This will 
be a district court-type decision with three judges trying to decide 
what the rules of evidence and every other issue must be.

  Imagine three Judge Ito's. That is kind of what you are going to have 
here, and that is a very different process. So you are going to get an 
entirely different kind of record that is going to be much more 
difficult for the Supreme Court to handle.
  Again, why is a constitutional issue coming from referendum able to 
go directly to the Supreme Court, whereas one that is passed by a 
legislative body in a democratic system not guaranteed that same access 
and so forth? Furthermore, people going this route, through the three-
judge panel, will be denied the court of appeals route. So there are 
all sorts of things in here that I think are terribly confusing.
  The bottom line, I think, behind this bill is whether or not the 
Constitution is a rough draft, whether or not people can amend it 
simply by having a referendum.
  One of the great things in this country has been the Constitution has 
not been a rough draft. I always thought we in this body said we were 
to protect and defend the Constitution. Apparently some people think it 
is protect and amend. But I feel very strongly that, yes, it is 
frustrating sometimes; yes, sometimes we do not like to have to honor 
minority rights; and yes, there are some things in the Constitution 
that probably bother every single American citizen. But basically it 
has been a fair document, and we have said we are a government of laws 
and not of men, and that a majority cannot overrule the Constitution 
and impose its will on the minority.
  I think that is really what the crux of this complaint is about. The 
crux of the complaint is about the fact that the citizens of California 
wanted to overrule the Constitution when it came to proposition 187. A 
Federal judge said no, they could not, and, guess what? So 

[[Page H 9613]]
did the State judge and so did now the court of appeals. So now we are 
going to try and tell them, well, that Federal judge was wrong, the 
court of appeals was wrong, the State judge was wrong, and, if we only 
had this process, it would have come out with a different answer. No, I 
do not think they would. In the interim we are going to mess up this 
whole thing.
  You are going to hear on the other side too ``forum shopping, forum 
shopping, forum shopping.'' If that is truly your concern, we have an 
amendment that would limit this process to circuits where they do not 
apply and put the judge on according to the normal way.
  When this case came to the district in California where it was 
assigned, there were 25 judges on that bench and it was assigned in the 
normal rotating way. So if you said you were forum shopping for a 
judge, I do not know how you could do that when there are 25 judges 
there and they are assigned routinely in a rotating manner.
  But I will offer an amendment when we get into the amendment process 
that would narrow this so that if there are any circuits where there 
are just one or two judges, so you could forum shop, or where there is 
any circuit where they do not use the traditional rotation, then, of 
course, you could have this process, and it would keep people from 
forum shopping.
  That will go right directly to the forum shopping. But other than 
that I think this is much too broad. It is like shooting flies with an 
automatic weapon. You are not going to get the fly, and you are apt to 
do a lot of other damage.
  Mr. Chairman, I reserve the balance of my time.
  Mr. MOORHEAD. Mr. Chairman, I yield 5 minutes to the gentleman from 
California [Mr. Bono].
  Mr. BONO. Mr. Chairman, first of all, I would like to say that this 
is a tremendous honor for me, because the last thing I thought I would 
be doing at this time in my life is being a Congressman. These kind of 
things only happen in America. It is so magical that a citizen can have 
views, and then decide to get involved, and then decide they are 
willing to make the effort to get elected, and then get elected, and 
then submit bills that you think will improve the country or contribute 
to the country and to society.
  So, for me, this is the first time for me. For me to come here and 
make this contribution to my country is a tremendous honor, and I will 
never forget it.
  In this case, being a Californian, I saw the people speak. Five 
million people spoke, and they believed in something. They went to the 
polls and they turned out in droves. They had a comment, and they had a 
feeling, and they decided they wanted justice. They were so dedicated 
that they themselves put their signature on the change that they wanted 
in our country, and that part worked fine.
  But after that part, what happened is someone who opposes their view 
is very politically savvy and very legally savvy, and knows the ins and 
outs and how to do something, so they forum shop.
  Well, I did not even know what forum shopping means. But forum 
shopping is going to an area or a district where the judge is 
sympathetic to the opposition, and decides to help the opposition and 
bury the very referendum that was voted on unanimously by the people.
  So this injustice has been going on. And it occurred to me that if 
the people speak, we represent the people, and their voice is the most 
important voice of all voices, and if we do not represent their voice 
and if we do not fight for what they believe in, then we are not doing 
our job. This all becomes a charade and a game.
  Not being a politician, but being a very patriotic American, I want 
to fight with them as well. So now here I am able to carry the banner 
for them, and I have come up with a bill that I think will eliminate 
this injustice that occurs now when the people speak. It simply 
requires, rather than being able to go to one Federal judge who has an 
opposing opinion and have him bury that referendum, which, by the way, 
is still tied up in the courts, it will require three judges. That will 
give that referendum an opportunity to be represented more fairly, 
because it is going to be hard to get three people that are biased the 
same way.
  So with all the legal rhetoric that the gentlewoman has just given 
us, you know, there is legal rhetoric, and then there are the facts. 
And fact is that this is a game, and the game is if you lose at the 
polls, we have got another angle. We will get it to a judge who will 
bury it for us.
  Those are the kind of things that we want to get rid of. Those are 
the reasons that I ran for Congress and now am a Member of Congress, 
with great pride.
  So as a first effort, and as my very first bill, I am asking this 
Congress to vote for this bill and correct this injustice.
  Mrs. SCHROEDER. Mr. Chairman, I yield myself such time as I may 
consume, only to say my understanding was that while the gentleman is 
saying there was judge shopping, this case went to a district that had 
25 judges, sitting judges, and that it was randomly assigned. Then it 
was appealed to a three Federal judge panel at the Court of Appeals, 
two of whom were known to be very conservative.
  Mr. MOORHEAD. If the gentlewoman will yield, I want the gentlewoman 
to know the California situation is not the reason that I am so 
strongly in favor of this bill.
  Mrs. SCHROEDER. Mr. Chairman, reclaiming my time, what the other 
gentleman from California said he did this because of judge shopping. I 
know the gentleman knows that the districts in California are run the 
way Federal districts are supposed to be run.
  Mr. Chairman, I yield 5 minutes to the gentleman from Michigan [Mr. 
Conyers], the distinguished ranking member.

                              {time}  1215

  (Mr. CONYERS asked and was given permission to revise and extend his 
remarks.)
  Mr. CONYERS. Mr. Chairman, this is the California against proposition 
187 proposal that claims that there was forum shopping when there was, 
in fact, none. I see my California colleagues are in strong array here, 
and I was happy that the gentleman from California [Mr. Bono] did not 
mention proposition 187 as the bill that sent him into his first 
legislative activity. The fact of the matter is, that the people of 
California did not know that proposition 187 was unconstitutional. I 
did not either, but the State court corrected that, I would say to the 
gentleman. Nobody was forum shopping there, and the Federal court 
supported it.
  Mr. Chairman, can we not agree that these courts were not anti-
Republican, were not against proposition 187, but that they found a 
fatal constitutional error that they were duty bound to profess and 
articulate as something that was not correct, even though 5 million, 10 
million, 100 million sign it? That does not make it legal.
  Let us be clear about this, Mr. Chairman, this is proposition 187 now 
coming to the House of Representatives. The proponents of this bill 
tell us we need to adopt three-judge panels to review constitutional 
challenges to State referenda to provide a more expedited review 
process. Did we not listen to the chief judge of the U.S. Court of 
Appeals who came and explained this to us at great length out of his 
very busy schedule, that if the one thing we wanted to do was to 
expedite an appeal is we should not put it in three courts.
  Now, ladies and gentlemen, that is not awfully judicial concept to 
understand. We cannot take three judges and make something go faster 
than one judge. There was no forum shopping, so we are trying to fix 
something that is not broke. If anything, the bill will make it much 
more likely that the plaintiff will be able to tailor their lawsuit in 
an effort to obtain a favorable forum. How? knowing that the chief 
circuit judge will be given the discretion in selecting the panel 
members, the moving party can decide whether he or she is better off 
bringing the case in a State or Federal Court. So, Mr. Chairman, we 
will have achieved the precise opposite of the intended result.
  And just to make everybody as happy as we can, we are going to give 
Members the Schroeder amendment that will correct even what we are 
imagining. We have a rotating system in almost all the Federal court 
jurisdictions. They are random. They rotate. There was not any hanky-
panky in the California Federal courts, I am happy 

[[Page H 9614]]
to report. There can not be any in selection because it is random. So 
at the end of the day we are left here with the conclusion that it is 
not good policy to mandate greater use of the three-judge panels.
  That is why this Congress, on a bipartisan basis, repealed almost all 
of the three-judge provisions in 1976. That is why the judicial 
conference, which must live with the burdensome requirements of this 
proposal before us, and the administration strongly oppose the bill. 
That is why most judges that have ever heard of this proposition are 
outraged that we would be moving back to pre-1976 to try to get back at 
a proposal in California that we felt badly that it was improperly 
worded and we held unconstitutional.
  Mr. Chairman, the real tragedy, however, is the bill's proponents 
would have the voters believe that we are taking some magic action that 
will allow for fair and more expeditious legal challenges of State 
referenda. When they learn this is not the case, the blame will rightly 
lay with this body, so oppose H.R. 1170.
  Mr. MOORHEAD. Mr. Chairman, I yield 2 minutes to the gentleman from 
California [Mr. Dreier].
  (Mr. DREIER asked and was given permission to revise and extend his 
remarks.)
  Mr. DREIER. Mr. Chairman, I want to extend congratulations to the 
gentleman from California [Mr. Bono], my friend from Palm Springs, for 
the valiant effort he has put into the legislation. As I was saying 
during management of the rule, he saw a wrong and decided to right it 
and he stepped forward and I am pleased we are able to proceed with 
this legislation.
  I have been listening to debate here, and one thing that needs to be 
underscored is the fact that the U.S. Congress has consistently 
maintained the use of three-judge panels when it comes to issues of 
voting rights an voting procedure, and this legislation we are 
considering here today simply moves into a very small and limited areas 
that same provision.
  Mr. Chairman, some have said this would be a tremendous burden. Well, 
we have seen 10 of these cases over the last 10 years. I think that as 
we recognize that, this is a very responsible route to take.
  One of the questions that was raised, Mr. Chairman, and this was 
given to me by the gentleman from California [Mr. Moorhead], the 
subcommittee chairman, was why should legislation passed by statewide 
referenda be afforded preferential treatment? The answer is in this 
concurring opinion in Baker versus Carr V regarding apportionment.
  Justice Clark explicitly recognized the similarity between State 
referenda and the protection provided by the constitutional prohibition 
of unfair apportionment. By use of a referendum, a State is 
reapportioned into a single voting district to vote directly on 
legislation. When the population exercises its individual vote, that 
process is revered as a cornerstone of our democracy. For that reason, 
apportionment cases go to a three-judge panel for the same reason the 
cases falling under H.R. 1170 should go to a three-judge panel.
  This is very important legislation. I again congratulate the 
gentleman from California [Mr. Bono] for having the vision to introduce 
this measure and I urge my colleagues to support it.
  Mrs. SCHROEDER. Mr. Chairman, I reserve the balance of my time.
  Mr. MOORHEAD. Mr. Chairman, I yield 2 minutes to the gentleman from 
Indiana [Mr. Buyer].
  Mr. BUYER. Mr. Chairman, it is almost comical to me, because the 
gentleman from California almost gave my speech. I think that as I sit 
listening to the gentleman from Michigan, Mr. Conyers, even Mr. 
Conyers, I do not think, would advocate--matter of fact, I will ask the 
gentleman.
  I do not think the gentleman advocates, whether he does or does not, 
setting aside the mandatory three-judge panel under the 1965 Voting 
Rights Act. Would the gentleman be in support of that or not?
  Mr. CONYERS. Mr. Chairman, if the gentleman would yield, no, I 
supported leaving it like it is.
  Mr. BUYER. Mr. Chairman, the gentleman has indicated for the 1965 
Voting Rights Act.
  Mr. CONYERS. If the gentleman would continue to yield, does he?
  Mr. BUYER. Yes, Mr. Chairman, I do also. I listened to the 
gentleman's arguments, and I wanted to make that clear.
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. BUYER. I yield to the gentleman from North Carolina.
  Mr. WATT of North Carolina. Mr. Chairman, I thought it might be 
helpful for the gentleman from Indiana [Mr. Buyer] to understand the 
historical and factual background in which the three-judge panel for 
voting rights cases was adopted initially. If the gentleman is 
interested in that, I would be happy to tell him. It had nothing to do 
with this kind of situation.
  Mr. BUYER. Mr. Chairman, reclaiming my time, the three-judge panel is 
important because not only do we have the nexus of the 1965 Voting 
Rights Act, but we have that nexus the gentleman from California [Mr. 
Dreier] referred to when we have a State referendum. We have voters 
acting as one voting block, so there is a nexus. And I compliment the 
gentleman from California [Mr. Bono] for drafting this legislation.
  Mr. Chairman, this legislation recognizes the nexus and the needs for 
the three-judge panel. Whether we want to debate this issue about the 
forum shopping or not, I think when we have the people's voice, we must 
respect the people's voice under the law.
  So often, Mr. Chairman, people like to talk about the fact we have a 
democracy in America. We do not have a democracy, we have a republic, a 
nation of laws, not of people, for the preservation of the rights of 
the minority. When we have a State referendum acting with that nexus we 
are talking about, I think it is important to have that single judge 
move from that to the three-judge panel so we do not have this debate 
about whether they are acting as capricious or arbitrary authorities. I 
think it is imprudent and it would be an imprudent exercise of Federal 
power.
  I compliment the gentleman from California [Mr. Bono] for his 
legislation and urge its passage.
  Mrs. SCHROEDER. Mr. Chairman, I yield 10 minutes to the gentleman 
from North Carolina [Mr. Watt].
  Mr. WATT of North Carolina. Mr. Chairman, I thank the gentlewoman for 
yielding me time and being generous with her time, and I will try not 
to use the entire time but I think this is an important issue.
  I rise in opposition to the bill which is under debate at this time. 
The gentleman from California [Mr. Bono] apparently thinks that because 
he does not like the result that a court gave him changing the process 
by which the court got to that result is the appropriate thing to do.
  I will submit to the gentleman that, first of all, I never, ever got 
a spanking when I was growing up that I liked the result of, but I 
never had the opportunity to go back and say, I want three mothers or 
fathers to make this decision about whether I get a spanking or not 
just because I did not like the result.
  Mr. Chairman, I do not like the result when I get stopped by a 
highway patrolman out on the highway and get a traffic ticket.
  Mr. HOKE. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. I will not yield. The other side has 
plenty of time over there. I will be happy to yield after I get through 
making the points I want.
  I do not have the right to ask for three highway patrolmen to come 
out on the street and decide whether it was proper for me to get a 
speeding ticket just because I do not like the result.
  Mr. Chairman, what the gentleman from California [Mr. Bono] is 
proposing is tantamount to the same thing. We do not have the resources 
to bring to bear on the traffic ticket that I get out there.
  Mr. DREIER. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. Mr. Chairman, would the gentleman please 
stop interrupting me? I will yield at the end of my presentation.
  The CHAIRMAN pro tempore (Mr. Ewing). The gentleman declines to 
yield. The gentleman from North Carolina will continue.
  Mr. WATT of North Carolina. Mr. Chairman, I will yield at the end of 
my presentation. If the other side is going 

[[Page H 9615]]
to interrupt me every time I get into the middle of a sentence, then I 
am going to do the same with them.
  Mr. DREIER. Mr. Chairman, I have asked the gentleman to yield one 
time.
  Mr. WATT of North Carolina. Mr. Chairman, they can pass around that 
right if they want, but I am not yielding at this time. I will be happy 
to yield if I have time left.
  We do not have the resources. We are dealing with scarce resources 
right now. The Republicans tell us every day we have scarce resources 
and here we come. We do not like the result so we will change the 
process. Instead of using one judge, we are going to use three judges.
  Now, Mr. Chairman, I want to go back to the point the gentleman from 
California [Mr. Bono] made. We should have three biases in a situation 
where a referendum has been held rather than one bias. I did not 
realize that our Federal Judiciary consisted of any biases. We go 
through a rigorous process of trying to select the best judges we can 
select, and we have a very intense process of appeals to the court of 
appeals, to the Supreme Court of the United States.
  There are always appeals in the process if we do not like the process 
or bias of that particular judge. So this notion that we ought to bring 
three biases to bear on a referendum issue rather than the bias of one 
judge, I hope we do not bring any biases to bear. If they are looking 
at the Constitution and interpreting the Constitution in the way that 
the U.S. Supreme Court has indicated the Constitution ought to be 
interpreted, and in the way that we know is correct, then it ought not 
be a question of whether there are any biases or not.

                              {time}  1230

  Mr. DREIER. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. Mr. Chairman, regular order. I will be 
happy to yield to the gentleman at the end of my presentation.
  Mr. Chairman, if the gentleman from California [Mr. Dreier] wants to 
play this game, I am going to do it to him when the gentleman gets up.
  Mr. DRIER. Mr. Chairman, I am used to it.
  Mr. WATT of North Carolina. Mr. Chairman, I will be happy to yield to 
the gentleman at the end of my presentation.
  Mr. Chairman, the third point I want to address is this notion that 
we ought to, basically, dictate to States that they have referenda in 
their States, rather than deciding their State's policies through the 
regular legislative process.
  If we say we are going to provide a three-judge panel if they have a 
referendum, but we are not going to provide a three-judge panel if the 
State legislature meets and passes a law that is constitutionally 
suspect, then all we have done is we are going to give the States that 
have a preference for referenda some kind of deference. That ought not 
to be the case.
  There are States who do not submit issues of this kind, or any other 
kind, to State referenda. In North Carolina, we seldom have a statewide 
referendum on any issue. That is what we elect State representatives 
for, to go and make public policy, and we ought not give a referendum 
State any greater deference than we give the regular legislative body.
  Finally, Mr. Chairman, and then I will be happy to yield to the 
gentleman, and I will be happy to engage in whatever dialog the 
gentleman wants, and I hope the gentleman will yield to me and we can 
engage in it on his time.
  Mr. Chairman, let me talk to my colleagues about the historical 
background for having a three-judge panel in voting rights cases. The 
Voting Rights Act was adopted in 1965, in the midst of overt racial 
discrimination in the South.
  It applies, primarily, to southern States. All of the judges in the 
South were from the South. The process that was set up was to try to 
get those racial biases out of the process by bringing more people to 
bear on it. There was a historical record of why it was necessary.
  Mr. Chairman, there is no record of anybody discriminating against 
the State of California. Nobody has come in here and said that the 
judges have discriminated against the State of California.
  The State court in California also held unconstitutional this 
proposition that you are concerned about the result of. The Federal 
court held it unconstitutional, and the State court held it 
unconstitutional.
  So, are we asking for a three-judge panel in the State courts of 
California also? Are we accusing the State courts of discriminating 
against California?
  There was a factual basis for a three-judge panel in voting rights 
cases. There is simply not that factual basis in this case.
  Mr. DREIER. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from California.
  Mr. DREIER. Mr. Chairman, I thank the gentleman from North Carolina 
[Mr. Watt], my friend, very much for yielding and I compliment him on 
his statement, even though I have disagreement with it.
  We need to realize that in cases of voting rights, Baker verses Carr.
  Mr. WATT of North Carolina. Mr. Chairman, reclaiming my time, are we 
going to have a dialog or is the gentleman going to give a speech? If 
the gentleman is going to give a speech, I want the gentleman to do it 
on his time.
  Mr. DREIER. Mr. Chairman, I was going to respond to the three mothers 
and the three highway patrolmen, but if the gentleman does not want me 
to, that is fine.
  Mr. WATT of North Carolina. Mr. Chairman, I yield back the balance of 
my time, since the gentleman from California does not want to engage in 
a dialog; the gentleman wants to make a speech.
  Mr. MOORHEAD. Mr. Chairman, I yield 3 minutes to the gentleman from 
Ohio [Mr. Hoke].
  Mr. HOKE. Mr. Chairman, I want to respond to a couple of things the 
gentleman from North Carolina [Mr. Watt] said. It is perfectly 
legitimate, it is utterly appropriate that we would actually give a 
preference to referenda, popular referenda, State referenda, because 
that is the only instance in which the people speak themselves. It is 
the purest form of democracy that we have got and we ought to do 
everything in our power to protect that, to give assurance to the 
people, to let them know, without any question, that that will be 
respected and that will be given a preference, if you will, and a 
larger standing or a higher standing than the legislative process.
  Mr. Chairman, what happens in the legislative body? People get 
elected and they make decisions as representatives, but in a referendum 
it is the only time that we actually have the equivalent of a statewide 
town meeting. We have a situation in California where there were 5 
million people and their voice was then drowned out by one individual.
  The fact is, and the gentleman from North Carolina brings up a good 
point, the fact is that we are obviously admitting that there are the 
possibilities of imperfections in our Federal judiciary and that we are 
going to do a better job of dealing with those imperfections in a say 
that spreads it out, that balances it out, so that we cannot have an 
abuse and so we cannot have a forum shopping situation where we look 
for a particular judge.
  We work specifically and hard to make sure that there is not only the 
reality of fairness but, in fact, the perception of fairness. Because 
this is the way that we ensure that these Democratic institutions have 
the confidence of the people.
  Mr. Chairman, the other thing I would like to say is that I find it a 
little bit silly to listen to the fiscal responsibility argument 
regarding this; that somehow we cannot afford--in the handful of cases 
that will be brought up under this across the country--we cannot afford 
a three-judge panel instead of a one-judge panel to decide these 
matters.
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. HOKE. I yield to the gentleman from North Carolina.
  Mr. WATT of North Caroline. Mr. Chairman, the gentleman is saying to 
transport three judges to a central location, three sets of clerks, 
court reporters to a central location is not something that we ought to 
be concerned about? That is an expenditure of the taxpayers' money. 

[[Page H 9616]]

  Mr. HOKE. Mr. Chairman, reclaiming my time, of course I am not saying 
that. What I am saying is that the benefit far, far, far, outweighs the 
burden.
  Mr. CUNNINGHAM. Mr. Chairman, will the gentleman yield?
  Mr. HOKE. I yield to the gentleman from California.
  Mr. CUNNINGHAM. Mr. Chairman, what I think we are seeing on this side 
of the aisle is that we had about 5 million Californians overridden by 
1 judge. Prop 187 was approved by an overwhelming majority of 
Californians, and a couple of other issues. We are just saying that is 
wrong and we would like to make sure that that does not happen again.
  Mrs. SCHROEDER. Mr. Chairman, could I inquire, please, of the 
remaining time on both sides?
  The CHAIRMAN (Mr. Ewing). The gentlewoman from Colorado [Mrs. 
Schroeder] has 6\1/2\ minutes remaining and the gentleman from 
California [Mr. Moorhead] has 12 minutes remaining.
  Mrs. SCHROEDER. Mr. Chairman, could the gentleman from California use 
a little more of his time, because the remaining time is unbalanced.
  Mr. MOORHEAD. Mr. Chairman, may I inquire how many more speakers the 
gentlewoman has?
  Mrs. SCHROEDER. At least one, and maybe more.
  Mr. MOORHEAD. Mr. Chairman, I would not like to get to the end and 
the gentlewoman have 10 minutes remaining for one speaker to speak and 
we have nothing.
  Mr. Chairman, I yield 2 minutes to the gentlewoman from California 
[Mrs. Seastrand].
  Mrs. SEASTRAND. Mr. Chairman, I rise in strong support of H.R. 1170. 
As was mentioned, we talk about 5 million Californians speaking out 
last year in support of an initiative that passed by overwhelming 
majority and 1 man silenced their voice. If there is one thing I hear 
on the central coast of California, our constituents are very 
concerned, whether real or not, about the shopping for a judge that is 
going to come out with a decision that is opposite the majority voice 
on this. Whether it is real or perceived it is there.
  State referenda are special. They allow, more than any other process, 
the direct will of the majority of citizens in that State to be heard. 
I do not believe any single person without accountability to anyone 
should have the power to dismiss that will.
  Mr. Chairman, under the current system, a single judge can suspend 
the direct will of the majority indefinitely without answering to 
anyone. This bill simply rectifies the unjust situation. It provides 
for three judges to come to a professional consensus on whether a 
radical action, such as the injunction, has merit. The judges' 
consideration of the case is specifically limited to the State laws 
which are voted on directly by the entire populace of the State.
  There are those who will say that this legislation will bog down the 
court review process with unneeded appeals, but I say do not believe 
them, because the Congressional Research Service did a survey that 
revealed that only 10 cases in the last decade would be eligible for 
review by a three-judge court under this bill.
  Mr. Chairman, I just would encourage this bill to be heard and passed 
on. It recognizes that State referenda reflect, more than any other 
process, the one-person one-vote system. It seeks to protect a 
fundamental part of our national foundation. Laws that come directly 
from the people should not, be easily set aside. We should not, and 
will not be held in legal limbo by those losing litigators.
  Mr. MOORHEAD. Mr. Chairman, I yield 3 minutes to the gentleman from 
Virginia [Mr. Goodlatte].
  Mr. GOODLATTE. Mr. Chairman, I thank the gentleman from California 
[Mr. Moorhead] the chairman of our subcommittee, for yielding this time 
to me, and I also compliment the gentleman from California [Mr. Bono] 
for this fine piece of legislation that will simply give greater 
assurance to people participating in statewide referendums that they 
are not going to be overturned by a single judge who may be basing his 
opinion on something that is not sound judgment.
  Mr. Chairman, this is something that is going to help prevent forum 
shopping. This is going to help prevent the kind of delays that are 
experienced in these cases. It has now been nearly a year since 
proposition 187 was voted on by more than 5 million voters in the State 
of California and we still do not have a final resolution of this case.
  Mr. Chairman, when millions of people take the time to vote, time 
away from work, time away from their family, significant inconvenience, 
sometimes significant cost, they have the right to be assured that 
their vote is being effectively and carefully considered and a three-
judge panel simply gives them that assurance.
  Mr. Chairman, this does not apply in the case of proposition 187, but 
that is a good example of why we need to have this kind of assurance, 
simply because of the fact that three judges will be more carefully 
looking at this right from the start, rather than as a situation that 
has dragged on for a considerable period of time.
  In the past 10 years, there have been only 10 instances where this 
has been used. So when judges complain that this is a burden on the 
judiciary, that simply is not the case. When we add up the collective 
burden of millions of people gong to vote in a referenda and then being 
told by one judge that their votes did not count for anything, I think 
we have a substantial justification for having a three-judge panel in 
those instances.
  Mr. Chairman, each time this is used, it is used for very important 
and very significant reasons and I think it is highly justified and 
properly called for; very comparable to the other instances in which we 
use three-judge panels. Mr. Chairman, I urge my colleagues to support 
the bill.
  Mrs. SCHROEDER. Mr. Chairman, I yield 3 minutes to the distinguished 
gentleman from Kentucky [Mr. Ward].
  Mr. WARD. Mr. Chairman, I wonder if I could ask the sponsors some 
questions. I have a copy of the bill. I wonder if the gentleman from 
California, [Mr. Bono] could answer some questions about the exact 
language of the bill.
  Mr. Chairman, on line 11 of page 2 of the bill, the gentleman from 
California [Mr. Bono] mentioned that these cases would be heard by a 
three-judge panel, and then appealed only directly to the Supreme 
Court. Is my understanding correct?
  Mr. BONO. Mr. Chairman, will the gentleman yield?
  Mr. WARD. I yield to the gentleman from California.

                              {time}  1245

  Mr. BONO. Mr. Chairman, the gentleman is correct. Under U.S.C. 2284, 
that is the procedure.
  Mr. WARD. Mr. Chairman, I wonder if I could ask, what other kinds of 
cases are sent. I know redistricting cases are sent directly to the 
Supreme Court. I wonder what other kinds of cases.
  Mr. BOND. Mr. Chairman, if the gentleman will continue to yield, 
voting rights cases.
  Mr. WARD. But are there any other cases? I will wait until the 
gentleman gets some advice there.
  Mr. BONO. Mr. Chairman, redistricting and Voting Rights Act cases.
  Mr. WARD. Well, Mr. Chairman, this is an open rule. I wonder if the 
gentleman would be amenable to our adding a whole range of other things 
that are vitally important, drug kingpin cases, so that we do not have 
delayed justice or the Oklahoma City bombing case or a case of a 
Presidential assassination? If a referendum would be that important to 
see appealed directly to the Supreme Court, I wonder what other kinds 
of things the gentleman might include.
  Mr. BONO. Mr. Chairman, the gentleman is welcome to make any 
amendments the gentleman cares to. However, it is a very simple bill. 
It represents the people of America. It is uncomplicated. I am not a 
lawyer, but I feel very strongly that the people deserve this 
representation. And it goes to constitutionality. It really, in my 
view, does not need any altering.
  Mr. WARD. But the gentleman is saying I may offer any amendment I 
wish?
  Mr. BONO. That is what an open rule means.
  Mr. WARD. Would the gentleman not be supportive? As the gentleman 
knows, in this context of an open rule, we still have to have the 
assent of the sponsor of the bill in order to offer an amendment which 
is not beat on a party line vote.

[[Page H 9617]]

  Mr. BONO. As I said before, it is simple, very clear. If the 
gentleman wants to submit an amendment, fine. Otherwise, I really would 
like it to stand as it is.
  Mr. WARD. Mr. Chairman, I understand it is a very clear bill. It is 
very straightforward. There are actually a couple other questions I 
might ask, if I can seek the gentleman's indulgence in that.
  Mr. BONO. Mr. Chairman, what is being displayed before America right 
now is the thing that they hate. That is lawyers in Congress dealing 
with rhetoric rather than substance and discouraging Americans in 
believing in Congress.
  Mr. WARD. Mr. Chairman, if I might respond to the gentleman, my only 
comment would be, first, I am not a lawyer. I am a citizen legislator, 
as I expect the gentleman is, but I think that we need not denigrate 
the decisions we are making by saying that only lawyers would care 
about these decisions. These are laws which will affect every American. 
We cannot say, this is just a simple law; let it slide through. What 
are we going to do about cases that also deserve to go directly to the 
Supreme Court?
  Mr. MOORHEAD. Mr. Chairman, I yield 3 minutes to the gentleman from 
California [Mr. Bilbray].
  Mr. BILBRAY. Mr. Chairman, I would like to thank the gentleman from 
California [Mr. Bono] for bringing forth this proposal, because I think 
it really is a determining factor of the credibility of our democratic 
processes that we have not only here in the United States but I think 
we need to recognize in many parts of our States separately.
  Mr. Chairman, this is not about 187. That is water under the bridge. 
But it is about the credibility of the Federal Government's commitment 
to the right of voters to have that right executed, the voting rights 
concept.
  There are two ways to deny a citizen the right to be able to express 
themselves through the ballot box. One way is the old way that was 
addressed in 1965. That is not allow them to the ballot box at all. 
Never let them drop their vote certificate in that. That was addressed 
in the 1965 law. But now we have this new insidious approach that says, 
let us wait for them to drop the ballot in the box and then let us 
erase every ballot in that box by going to one judge who will override 
the democratic process by that judge's own process.
  For good reason in the 1970's, we pointed out that we needed, in 
1976, that we needed to make sure that we defended this most sacred 
right of democracy, the right to express yourself at the polls by 
having a three-judge requirement. And we can talk all we want, about 
that it is only one part of this country that law was meant to apply 
to. But I am sorry, the last time I read the law, it applies to us all, 
and it applies to California, Michigan, Connecticut, and, yes, to 
Louisiana.
  We are asking, with this law that Mr. Bono has brought up, that we 
defend the whole foundation of democracy just as much after the ballots 
have been dropped as we have before the ballots.
  I think that it is appropriate that we follow this, Mr. Chairman. I 
am rather distressed that democracy, as we know it, can somehow be 
expendable. I ask those who claim to be from the Democratic Party to 
one time stand up and support the gentleman from California [Mr. Bono] 
in his quite rational and logical defense of the democratic process.
  Mrs. SCHROEDER. Mr. Chairman, I yield 3 minutes to the gentlewoman 
from Texas [Ms. Jackson-Lee].
  Ms. JACKSON-LEE. Mr. Chairman, I thank the gentlewoman from Colorado 
both for her work and her sincere work on this issue.
  I would simply like to note that members of the Committee on the 
Judiciary are entrusted with the responsibilities of justice, as well 
as the responsibilities of overseeing the full justice system, as it 
relates to the courts, both lawyers, nonlawyers and the courts are 
opposed to this particular legislation.
  I would like to ask, if I could, the sponsor of this bill, my 
colleague, the gentleman from California [Mr. Bono], if he would again 
answer an inquiry that I have concerning this legislation. I would 
simply like to ask the gentleman a yes or no question.
  If, in fact, this proposition had been ruled on, if the decision in 
the 187 proposition in California had been ruled on, I assume, in the 
gentleman's favor, the gentleman would have not offered this 
legislation? I ask that question because clearly the U.S. judicial 
conference has stated that this is a bureaucratic piece of legislation 
that would clog up the Federal courts.
  I know the gentleman to be a person that wants to unclog the courts, 
wants to ensure that people do have reasonable concern to justice.
  My concern is, that this is an isolated incident of which the 
gentleman is now trying to create legislation to, in his opinion, 
correct?
  Mr. BONO. Mr. Chairman, will the gentlewoman yield?
  Ms. JACKSON-LEE. I yield to the gentleman from California.
  Mr. BONO. Mr. Chairman, if I understand the gentlewoman correctly, 
this certainly is not retroactive to prop 187; 187 is not involved.
  Ms. JACKSON-LEE. Mr. Chairman, but would the gentleman have promoted 
this legislation if the decision by that judge had been one that the 
gentleman would have considered favorable?
  Mr. BONO. Mr. Chairman, if the gentlewoman will continue to yield, 
would she restate that again?
  Ms. JACKSON-LEE. Would the gentleman have promoted this legislation 
if in fact he had gotten what he would consider a favorable decision?
  Mr. BONO. Mr. Chairman, I would stand behind this legislation any 
time. It is bipartisan, in my view, and it represents the public. So 
the referendum is a side issue.
  Ms. JACKSON-LEE. Reclaiming my time, Mr. Chairman, I think the point 
is that the gentleman did not answer the question directly.
  Mr. BONO. Mr. Chairman, I said I would support it.
  Ms. JACKSON-LEE. Was the genesis of the gentleman's interest the fact 
of prop 187, which denies rights to those children and adults in 
California needed social services?
  Mr. BONO. Mr. Chairman, that is a whole other discussion.
  Ms. JACKSON-LEE. Mr. Chairman, the Judicial Conference of the United 
States, the U.S. judicial policymaking group, declares that this would 
be a horror story for the Federal judiciary. The Conference stated that 
it would be difficult to manage. The legislation would cause scheduling 
problems, consume limited judicial resources, of which many of the 
Republican Congress say they would not support, and, frankly, it would 
clog the Supreme Court and take away from them the discretion of making 
determinations on which cases to hear.
  I see no judicial basis in having this legislation passed other than 
disgruntled representation from one State suggesting that they want to 
have one court decision over the decision the federal court in their 
jurisdiction fairly rendered.
  The other point that I would like to end on is that this is not forum 
shopping. The judge in the 187 case made a fair and impartial decision. 
We in the legislature now, with this legislation, are trying to detract 
from an independent, unbiased decisionmaking. I think that that is 
poppycock. I ask my colleagues to vote this bad bill down.
  Mr. MOORHEAD. Mr. Chairman, I yield 1 minute to the gentleman from 
California [Mr. Doolittle].
  Mr. DOOLITTLE. Mr. Chairman, I rise to support this very excellent 
legislation of the gentleman from California [Mr. Bono].
  This legislation will enhance our system of checks and balances by 
establishing three-judge courts under limited circumstances, which are 
where injunctive relief has been requested regarding a voter approved 
initiative. As Thomas Jefferson said, Mr. Chairman, trust not to the 
good will of judges but bind them down by the chains of the 
Constitution. This bill takes us 10 steps in that direction.
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. DOOLITTLE. I yield to the gentleman from North Carolina.
  Mr. WATT of North Carolina. Mr. Chairman, this was the judge's 
decision based on the Constitution in this case. Is the gentleman 
saying that we should disregard the judge's decision based on the 
Constitution?
  Mr. DOOLITTLE. Reclaiming my time, Mr. Chairman, I am saying it 

[[Page H 9618]]
  takes 10 steps in the direction of Jefferson's quote because it gets 
three judges involved instead of one judge.
  Mr. MOORHEAD. Mr. Chairman, I yield 1 minute to the gentleman from 
California [Mr. Riggs].
  Mr. RIGGS. Mr. Chairman, I rise in strong support of this very 
important and timely legislation. I commend my California colleagues, 
especially Mr. Bono and Chairman Moorhead, for bringing this measure 
forward.
  Too often, as seen in California, special interests can misuse the 
courts. They go forum shopping, which we have talked about here today, 
for a friendly judge in an effort to thwart the will of the people. 
California's prop 187, which would have denied taxpayer-funded social 
services for illegal immigrants, is a perfect case in point. Although a 
majority of our citizens voiced their strong support for prop 187 in a 
statewide referendum, the vote was barely official before the court 
challenges and delays began. So this legislation corrects a fundamental 
wrong, a flaw in our system, because we believe on this side it is 
wrong for one activist Federal judge to issue an injunction thereby 
thwarting the will of the people.
  H.R. 1170 will counter this imbalance. It will help restore public 
confidence in the judicial system, and it continues the process that we 
began when we passed the Common Sense Legal Reform Act.
  Mr. MOORHEAD. Mr. Chairman, I yield 2 minutes to the gentleman from 
California [Mr. Royce].
  Mr. ROYCE. Mr. Chairman, I rise in support of this bill.
  Our colleague, the gentleman from California [Mr. Bono], has 
authorized a bill I think we should all support. There is probably 
nothing more basic to the principles of fairness and democracy than the 
ballot. When a majority of the people have spoken through a ballot 
initiative or through a referendum, they are entitled to timely 
implementation of their mandate. Opponents who contend that a law is 
unconstitutional are of course entitled to their day in court, but the 
courts should not be used capriciously to delay or thwart the will of 
the people.
  This bill preserves the rights of both sides by adding injunction 
requests based on constitutional grounds against State referendum to 
the list of cases to be heard by a three-judge Federal panel. It 
ensures a quick resolution of the issue by allowing appeals against 
such injunctions to go directly to the U.S. Supreme Court. It would 
affect only one case a year.
  This bill really protects the one-man, one-vote system. Should one 
judge have the power, without even ruling on a case, to invalidate 5 
million ballots? I think not. Requiring at least two judges on a panel 
to agree to an injunction will help deter judge shopping by opponents 
of the law while still preserving their rights. The requirement for a 
direct appeal to the Supreme Court is in the interest of all parties 
and is the same procedure, as we have discussed, we now use for 
congressional reapportionment and for the Voting Rights Act cases.
  Voters deserve to have their votes count and are entitled to have a 
decision rendered in a timely fashion. There is no more direct mandate 
than a ballot initiative. Let us keep faith with our democratic 
contract with the people. Vote for this bill. I urge all my colleagues 
to vote for voters rights.

                              {time}  1300

  Mr. MOORHEAD. Mr. Chairman, I yield myself 1 minute.
  Mr. Chairman, I want to make it clear that this proposition, this 
bill, does not apply to proposition 187; 187 is gone. It has nothing to 
do with it whatsoever. Only future cases in other States where problems 
arise; they can be on the right or left. It cuts both ways. One can get 
judges that are far to the right and those that are far to the left.
  The question has been raised as to whether this procedure is too 
difficult. It is not. The procedure already exists for similar cases 
and is used more in Voting Rights Act cases and apportionment cases 
than would be used in referendum cases. Understanding that the Speedy 
Trial Act and heavy Federal caseloads have increased the Federal 
judiciary burden, only one referendum case would be brought up 
statistically each year. While some States use the referendum process 
more frequently, there is no reason to think that this will cause undue 
burden on the courts.
  Mr. Chairman, districts who have been overburdened received the 
benefit of temporary judgeships in 1990. Under the three-judge court 
statute, one judge may issue temporary restraining orders and make all 
evidentiary findings alleviating the three-judge trial court 
difficulties.
  On balance, protection of the voters of a majority of a State's 
electorate outweighs the relatively minor inconvenience caused to the 
Federal Judiciary. I ask for an ``aye'' vote.
  Mr. KIM. Mr. Chairman, I rise today in strong support of H.R. 1170. 
As a strong supporter of proposition 187, which was overwhelmingly 
passed by the people of California in 1994, I was deeply disappointed 
by the abuse of power 1 judge can have over the will of 30 million 
California voters.
  As a cosponsor of H.R. 1170, I believe it is important that this 
Congress act, as representative of the people, to ensure their rights 
under the Constitution. To accomplish this, H.R. 1170 would ensure that 
laws passed by statewide referendum must be subject to review by a 
three-judge court comprised of one appellate court judge and two 
district court judges.
  I believe this legislation is necessary given the quick decision of a 
single district judge to reverse the strong voice of California 
residents who, under the Constitution, voted to pass proposition 187 
and eliminate the free giveaway of benefits for illegal immigrants. 
This is an issue of great importance to the State of California and the 
State taxpayers who must continue to pay for those who are blatantly in 
violation of the law.
  The question of the unconstitutionality of proposition 187, although 
an issue for valid debate in the courts, should not be made by one 
judge. Three-judge panels are already in use for voting rights cases 
because of the importance of an individual's right to vote--a three-
judge panel should exist for statewide referendum on the same 
principle--the right to vote.
  Again, Mr. Chairman, I call upon all of my colleagues to act in good 
faith and return the right to vote to the people in California and all 
the States by passing H.R. 1170.
  The CHAIRMAN. All time for general debate has expired.
  The committee amendment in the nature of a substitute printed in the 
bill shall be considered by sections as an original bill for the 
purpose of amendment, and pursuant to the rule each section is 
considered read.
  During consideration of the bill for amendment, the Chairman of the 
Committee of the Whole may accord priority in recognition to a Member 
offering an amendment that has been printed in the designated place in 
the Congressional Record. Those amendments will be considered read.
  Pursuant to the order of the House of today, the Chairman of the 
Committee of the Whole may postpone until a time during further 
consideration in the Committee of the Whole a request for a recorded 
vote on any amendment made in order by the resolution.
  The Chairman of the Committee of the Whole may reduce to not less 
than 5 minutes the time for voting my electronic device on any 
postponed question that immediately follows another vote by electronic 
device without intervening business, provided that the time for voting 
by electronic device on the first in any series of questions shall not 
be less than 15 minutes.
  The Clerk will designate section 1.
  The text of section 1 is as follows:

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. 3-JUDGE COURT FOR CERTAIN INJUNCTIONS.

       Any application for an interlocutory or permanent 
     injunction restraining the enforcement, operation, or 
     execution of a State law adopted by referendum shall not be 
     granted by a United States district court or judge thereof 
     upon the ground of the unconstitutionality of such State law 
     unless the application for the injunction is heard and 
     determined by a court of 3 judges in accordance with section 
     2284 of title 28, United States Code. Any appeal of a 
     determination on such application shall be to the Supreme 
     Court. In any case to which this section applies, the 
     additional judges who will serve on the 3-judge court shall 
     be designated under section 2284(b)(1) of title 28, United 
     States Code, as soon as practicable, and the court shall 
     expedite the consideration of the application for an 
     injunction.

  Mr. MOORHEAD. Mr. Chairman, I ask unanimous consent that the 
remainder of the committee amendment in the nature of a substitute be 
printed in the Record and open to amendment at any point.

[[Page H 9619]]

  The CHAIRMAN. Is there objection to the request of the gentleman from 
California?
  There was no objection.
  The text of the remainder of the committee amendment in the nature of 
a substitute is as follows:

     SEC. 2. DEFINITIONS.

       As used in this Act--
       (1) the term ``State'' means each of the several States and 
     the District of Columbia;
       (2) the term ``State law`` means the constitution of a 
     State, or any statute, ordinance, rule, regulation, or other 
     measure of a State that has the force of law, and any 
     amendment thereto; and
       (3) the term ``referendum'' means the submission to popular 
     vote of a measure passed upon or proposed by a legislative 
     body or by popular initiative.

     SEC. 3. EFFECTIVE DATE.

       This Act applies to any application for an injunction that 
     is filed on or after the date of the enactment of this Act.

  The CHAIRMAN. Are there any amendments to the committee amendment in 
the nature of a substitute?


                  amendment offered by mrs. schroeder

  Mrs. SCHROEDER. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mrs. Schroeder: In the first sentence 
     of section 1, strike ``Any application'' and insert ``(a) 
     General Rule.--Subject to subsection (b), any application''.
       Add the following at the end of section 1:
       (b) Applicability.--Subsection (a) applies only to--
       (1) any case filed in a judicial district, or a division in 
     a judicial district, that has only 1 sitting judge; and
       (2) any case that is filed in a judicial district with more 
     than 1 sitting judge but is assigned to a judge in any manner 
     other than on a random basis only.

  Mrs. SCHROEDER (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 gentlewoman 
from Colorado [Mrs. Schroeder]?
  There was no objection.
  (Mrs. SCHROEDER asked and was given permission to revise and extend 
her remarks.)
  Mrs. SCHROEDER. Mr. Chairman, this amendment takes this case, or this 
bill, and it applies it to the case that many have alleged they are 
most concerned about, and that is the issue of judge shopping. What my 
amendment says is that this procedure may go forward wherever there is 
just one or two judges in that district, so obviously one could pick it 
or where they do not use randomly applied, normal procedures for 
assigning the case inside the circuit. So, if there is any evidence of 
forum shopping, then this procedure comes forward because on that issue 
I think the gentleman from California has a legitimate concern.
  My understanding is that in proposition 187, no matter what they say, 
it was a district with 25 judges, and they were randomly assigned. But 
if there are districts with one judge, of which of course there are, 
and if there are districts, and I do not know if there are, that do not 
use random assignment so forum shopping would be possible, then this is 
insurance against forum shopping because forum shopping really would 
corrupt justice, and I think that this is very important because this 
amendment then brings down the inconveniences this bill might impose on 
certain circuits to just those who were really trying to misuse the 
system.
  What are we hearing? We are hearing today that what people are really 
mad about is that American citizens have the right to challenge a 
referendum in the courts, and since nobody wants to take away the right 
of the citizen to challenge the referendum, we are now blaming the 
judge. But in the case of 187 it was not only one Federal judge. It 
ended up at this point being four Federal judges because it went to the 
three-judge panel of the court of appeals and also the State judges. So 
all of those agreed that whoever brought this appeal had that right, 
and I do not think anybody wants to take that right away from American 
citizens to challenge anything if it violates their constitutional 
rights.
  Now the second thing and the reason I think it is so important to 
narrow this bill is that, if we pass this bill, and it is really going 
to impact just certain circuits because there is just a handful of 
circuits where the referendum process is so prevalent, but in those 
circuits every single time we call one of these three-judge panels what 
we are going to do is close down three courts to drug cases, three 
courts to crime cases, three courts to all the other cases on the 
Federal docket that are so critical. At the same time we are going to 
be shoving these cases right at the Supreme Court, and they will be 
given absolutely no discretion as to whether they take them up or not, 
and they will be having to take them up within an entirely different 
kind of record, not the appellant record they usually look at, but a 
much more complex record, and so they will be shutting out the ability 
of the Supreme Court to look more fairly and openly at the whole range 
of issues that come in front of it.
  All of us know that every year there are more and more and more 
appeals to the Supreme Court, but there is just a very limited number 
they can take, and they are on critical constitutional issues that we 
all care a lot about. We hear a lot of debate about that, and so should 
we give this specific referendum a very special pass? We are giving 
them the golden keys to the Supreme Court. They can then unlock the 
Supreme Court anytime they want, and no one else has got those keys on 
any other issues of constitutional weight except in the voting rights 
area.
  So I think this is terribly important. I think the Federal circuits 
are very worried about this, and that is why they have asked us not to 
pass this bill, but at least with this amendment we will be bringing it 
down to what the gentleman from California said is his specific 
concern, which I think is legitimate, and that is judge shopping. If 
there is judge shopping, we want to stop it. This amendment gets at 
that, and I would hope that everybody would strongly, strongly support 
this amendment. Otherwise I hope they vote against the bill.
  Mr. HYDE. Mr. Chairman, I rise in opposition to the amendment offered 
by the gentlewoman from California [Mrs. Schroeder].
  (Mr. HYDE asked and was given unanimous consent to revise and extend 
his remarks.)
  Mr. HYDE. Mr. Chairman, I want to congratulate the gentleman from 
California [Mr. Bono] for initiating this excellent piece of 
legislation. I cannot imagine anything more startling than to learn 
that a referendum or an initiative, in which 5 million people have 
participated has been set for naught by one judge who, as we all know, 
being people in the real world, judges can be whimsical, judges are not 
always correct, and one judge who decides against 5 million people, or 
a large percentage thereof, is really an anomaly.
  Now what the gentleman from California [Mr. Bono] and what we are 
seeking in this bill is justice and a fair chance at justice. It is not 
forum shopping to say that collective wisdom is better than individual 
wisdom. When my colleagues have surgery, they would like a second 
opinion, a third opinion. There is nothing wrong with getting opinions 
of people who are skilled, and who have the judgment and have the 
knowledge that is important in this field. So, if we are dealing with 
something of such dignity, and such importance, and such weight, and 
such significance as a statewide referendum, what in the world is wrong 
with asking that a three-judge panel decide whether it should be 
operative or it should be set aside? I think that is justice.
  Now the gentlewoman, for whom my admiration is boundless, and I mean 
that, says we are going to close down three drug courts. I suppose she 
means two; they have to slow one down anyway for the judge who is going 
to hear the case, but I do not see this as an either/or proposition, 
and I do not see an individual drug case being delayed a week or two so 
that the wishes of millions of people can be adjudicated in a 
reasonable way, as a bad tradeoff. So I think this is a fine idea.
  The gentlewoman obscures and obfuscates the neat simplicity of this 
proposal by requiring qualifications where there is only one judge or 
other procedures for random selection. I think it clutters up the bull. 
The bill is very plain and very direct, and I think it is the quickest 
way to justice for millions for people who take seriously their role in 
a statewide referendum.
  I yield to the gentlewoman from Colorado [Mrs. Schroeder] my dear 
friend.
  Mrs. SCHROEDER. Mr. Chairman, I think my chairman for yielding.

[[Page H 9620]]

  Mr. HYDE. Mr. Chairman, I was reading her mind and assuming that is 
what she really wanted.
  Mrs. SCHROEDER. Absolutely I am delighted, and I think the gentleman 
would admit that people do have that right to a three-judge panel. They 
could appeal it to the Court of Appeals, and of course in this case on 
187 they did. So at this point they have had four Federal judges, and 
all four Federal judges have agreed.
  Mr. HYDE. Is the gentlewoman saying an appeal is as good as winning 
the case in the first instance?
  Mrs. SCHROEDER. Mr. Chairman, I think, if one does not win it in the 
first instance, as the gentleman also knows, one has an immediate 
right, if they think that that injunction was unfairly granted, one has 
an immediate right to move on that, and I think that is the insurance 
that a person has.
  Mr. HYDE. But that is costly and cumbersome, and maybe the people who 
are initiating this do not have the resources that some of the special 
interests who want to set it aside do. But an appeal is never as good 
as winning it in the first place; the gentlewoman knows that I am sure.
  Mrs. SCHROEDER. The gentlewoman knows that we always want to win it 
the first time, but I want to say also I want to make sure that people 
have those rights and they have the right to immediately go up, and I 
think the gentleman knows that all the Federal courts have randomly 
assigned judges and that, unless there is only one judge on the 
circuit, one cannot forum shop really in the Federal courts.
  I guess the other question I have is: If you have a constitutional 
issue that comes out of a legislature, why should that have a lesser 
right, if you think this is a higher right, than one by referendum?
  Mr. HYDE. Reclaiming my time, that is another issue, and we can 
debate that on another day, but one of the things that I have never 
particularly felt favorably toward is no change of venue in the Federal 
courts, and one can get a budget that they are not at all comfortable 
with, and perhaps with good reason, and there is no way one can change 
a venue from him if he or she does not choose to grant it on their own.
  So that is another reason that one can get justice more readily by 
the collective wisdom of a three-judge panel than one, and I am sure 
the gentlewoman has much more to say, and she can do it on her own 
time, and I will listen to her with interest.
  Mr. WATT of North Carolina. Mr. Chairman, I move to strike the last 
word.
  Mr. Chairman, I rise in support of the amendment offered by the 
gentlewoman from Colorado [Mrs. Schroeder] to the bill. I obviously 
oppose this bill. The amendment would make it slightly better, probably 
not well enough for me to vote for it even if it passes because I just 
think this is a bad idea, and I think the American public and my 
colleagues need to understand why this is a bad idea and why we have 
not done this in more circumstances. I mean if it was a wonderful idea, 
why is the only case in which one gets a three-judge panel is in voting 
rights cases? Why do we not apply it to all cases? If judges are 
whimsical, as the chairman of the Committee on the Judiciary indicated, 
and they are; I mean I practiced law for 22 years, I know judges are 
whimsical.

                              {time}  1315

  But that does not mean that this is a good idea. There is a reason 
that we have not done this in other areas of the law.
  You should know that we had this process in the Federal law from 1948 
to 1976. We repealed this process in 1976. The reason we repealed it 
was that the bench, the Federal judiciary, lawyers, and the people 
concluded, and this is from a report that was filed, that ``This was 
the single worst feature in the Federal judicial system.''
  Now, as if we have forgotten this history, we are going to go back 
and reinstitute the same thing again. Well, if we do it for this line 
of cases and it is a good idea, where are we going to draw the line? We 
are going to get on this slippery slope, and next week we are going to 
want it for, I guess, traffic offenses or legislative things that are 
subject to judicial attack. Or, hey, certainly if the Congress of the 
United States passes a law, should it not require three judges to 
declare it unconstitutional, as opposed to just one judge, even though 
we can appeal it up through the process and go through the normal 
routine?
  This is a bad idea. This is a bad idea. This is not about having an 
adjudication in a reasonable way, as the chairman of the Committee on 
the Judiciary has said. If this were reasonable and this were the only 
way to get a reasonable adjudication or deal with adjudications in a 
reasonable way, then we would be doing it for all of the cases.
  There is a reason that we have not adopted this process for other 
cases. It is costly to have three judges come in and decide something 
that one judge, who is open to an appeal if he is wrong, can decide. It 
is costly.
  Mr. Chairman, under this proposal the judges will not be sitting in 
the same city. They will be coming from different parts of the state. 
You have got to put them up overnight. You have got to pay their 
expenses. They have got to have their law clerks with them. You have 
got to pay their expenses. And at a time when my Republican colleagues 
are beating us up over limiting expenditures at the Federal level, they 
are coming in here and proposing something that is absolutely 
nonsensical, just to do a favor to the Republican Member from 
California.
  That is what this is all about. That is why 99 percent of the people 
who have debated on this side of the aisle on this issue have been from 
California. They do not like the results that the judge gave them, two 
judges, I might add, not one, in this proposition case in California, 
so they want to change the process, a process which has worked for 
America for years and years and years.
  This is not about process. This is about the result that they do not 
like.
  Mr. MOORHEAD. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise in opposition to the Schroeder amendment. It 
would certainly limit the areas in which H.R. 1170 could be used. There 
are no States in the Union where there are not at least three judges. 
We are talking about the trial of a case where a piece of legislation 
has gone to the people of all of the state. There would be no 
difficulty in getting a three-judge panel if the case came up. 
Actually, we have the same situation exactly in voting rights cases and 
in cases of reapportionment.
  What this amendment would do would be to change the procedure that is 
already established for those other cases and have a different kind of 
a procedure for cases arising out of an appeal from a statewide 
referendum.
  Mr. Chairman, I know that there are people that would say that where 
you have only one judge or where you have one-judge districts, you can 
shop; but where you have 25 judges, as you do in some counties of the 
Nation, you cannot.
  But actually there are different proclivities of different panels, in 
Los Angeles, San Diego, and San Francisco. Believe it or not, they do 
shop for panels where they hope to have a more favorable judge that is 
assigned to their case, even though it is done by rotation. That 
happens even there.
  Mr. WATT of North Carolina. Mr. Chairman, will the gentleman yield?
  Mr. MOORHEAD. I yield to the gentleman from North Carolina.
  Mr. WATT of North Carolina. Mr. Chairman, does that mean if we have 
got these panels that have these proclivities, the next step is to have 
three panels so we have to have nine judges now?
  Mr. MOORHEAD. Mr. Chairman, reclaiming my time, absolutely not.
  Mr. WATT of North Carolina. I am relieved.
  Mr. MOORHEAD. I hate to see this bill, which I think is a fine bill, 
tied to a proposition which has gone its way. I know some people have 
felt emotionally involved because they have not agreed with the court 
on this particular proposition. But this applies to the American 
people, to give them a better opportunity of being satisfied that there 
has been a balanced three-judge panel that has heard their case. And I 
know it does go both ways. You can get a very rightwing judge that may 
decide against a more liberal proposition because his tendencies go in 
that direction, as well as you have the other direction.

[[Page H 9621]]

  We are bringing more democracy to the American people, who have 
feelings on one side or the other. And I think that the bill, as it is 
written, is much better than if you lock out certain parts of the 
country because the judges are more scattered or there are not as many 
in one district, where there are several districts in the State.
  Ms. JACKSON-LEE. Mr. Chairman, I move to strike the requisite number 
of words.
  Mr. Chairman, I hold in my hand a document that many of us hold 
extremely dear, and that is the Constitution of the United States. Our 
Founding Fathers wisely designed a form of government that established 
the executive, the legislative, and the judicial branches, and in that 
I think their wisdom was that it was important for the American people 
to have access to government in three separate and distinct branches. 
it also offers an opportunity for mutual respect, and also, to a 
certain extent, some cross-pollination, with basic factual premises.
  I think the difficult concepts that need to be evidenced here as I 
rise to support the Schroeder amendment are important. This is a very 
carefully crafted amendment, which would eliminate the very burdensome, 
costly and time-consuming procedures, and answer the so-called question 
of forum shopping. The concepts are that while we are here discussing a 
judicial issue, we are really talking about a political question in the 
State of California and a legislative undoing of an important judicial 
decision.
  I do respect and appreciate the people's right to vote, and I do 
believe that the people of California were heard by a randomly selected 
district judge, federally appointed, who would have the freedom and the 
independence to make a constitutional decision based upon the 
Constitution and the responsibility of three distinct branches of 
government.
  We now find ourselves here in this legislative body disturbing that 
sacred process by suggesting that a few disgruntled citizens did not 
get their way in California, partly to put poor people out in the 
street, denying educational rights to children and health benefits to 
the elderly that are in this country, a whole other story, a whole 
other issue. But because that was not a decision that some in this body 
appreciated, we now want to alter the Constitution of the United 
States.
  The Schroeder amendment gives some dignity to the Constitution, for 
what it says is if we determine there is a problem, then in fact this 
process can be one that we would adhere to. If there is documentation 
that there has been a real problem in a jurisdiction, then this three-
court panel can be established.
  Right now we have no documentation. The irony is we have a 
disgruntled bunch not willing to accept the ruling of the court, and we 
now want to distort the Constitution and clog up the courts, in direct 
opposition to a letter from the Judicial Conference of the United 
States of America.
  How interesting. How interesting. In contrast, my colleagues on the 
Committee on the Judiciary wanted to undermine just a few months ago 
the habeas proceedings, again dealing with the rights of individuals to 
access justice. Now we want to abuse the process and clog the courts, 
even though citizens have a right to go into a courtroom and an 
impartial judge sits and makes decisions under the Constitution of the 
United States. We now want to get a panel of three judges, rejected by 
the Judicial Conference, clogging up the Supreme Court, and rejecting, 
again, a process that has worked now since 1976.
  The Schroeder amendment is clear and simple and precise. It is on the 
premise that we can in fact fix what is broken. It does not go in 
massively, all over the Nation, and upset the apple cart, and upset the 
three branches of government, executive, legislative, and judicial, 
sanctioned and confirmed by the Constitution of the United States of 
America.
  Mr. Chairman, I would suggest that we support this amendment, which 
would allow those who have a sincere concern with judge shopping to 
respond to their problem, while at the same time preserving precious 
judicial resources. It allows us to go in where there is a problem and 
fix it. I hope my colleagues who have mentioned this issue of forum 
shopping, and I do respect the chairman of this subcommittee, I hope 
that they can understand that we are doing great damage, great damage, 
to this judicial process, and I frankly cannot understand why we would 
completely ignore the Judicial Conference of the United States of 
America which opposes this legislation strongly and firmly.
  Mr. BONO. Mr. Chairman, will the gentlewoman yield?
  Ms. JACKSON-LEE. I yield to the gentleman from California.
  Mr. BONO. Mr. Chairman, I would just like to comment that this case 
has not been heard. Everything that has occurred has simply been on 
technicalities. But the case itself has not been heard and it still not 
heard.
  Ms. JACKSON-LEE. There has been an order.
  The CHAIRMAN. The time of the gentlewoman from Texas [Ms. Jackson-
Lee] has expired.
  (By unanimous consent, Ms. Jackson-Lee was allowed to proceed for 1 
additional minute.)
  Ms. JACKSON-LEE. Mr. Chairman, if I may make one point, there has 
been a temporary restraining order.
  Mr. MOORHEAD. Mr. Chairman, will the gentlewoman yield?
  Ms. JACKSON-LEE. I yield to the gentleman from California.
  Mr. MOORHEAD. Mr. Chairman, all I wanted to say is our committee does 
have a major responsibility. The Judicial Act of 1789 set up the 
Federal courts. Our committee, our Subcommittee on Courts, does have 
the responsibility of providing the judicial procedure that is 
followed. This bill is strictly in accordance with the responsibilities 
that we have in carrying out that duty that we have.
  Ms. JACKSON-LEE. Mr. Chairman, reclaiming my time, I appreciate the 
duty, but I would also hope we would do it on the premise that we have 
a duty to correct. I am not convinced and I do not think the American 
people can be convinced that this is not just an isolated incident. We 
do not need additional jurisdiction for three-judge courts and a 
further clogging of the court system.
  Mr. Chairman, I want to say to the gentleman from California [Mr. 
Bono], there was a preliminary injunction against proposition 187 that 
was affirmed on appeal.
  We have not gone on the premise where there is something to fix. We 
are clogging up the courts. This amendment will in fact help isolate 
the problem and solve the problem where there is one, and not broadly 
disregard the Constitution of the United States.

                              {time}  1330

  Mr. HERGER. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, just to review the purpose of this legislation, and I 
rise in strong opposition to the Schroeder gutting amendment and in 
support of the Bono voting rights bill, but I ask the Members if they 
can imagine this scenario? Last November an overwhelming number of 
Californians voted, almost 60 percent, supporting the passage of 
proposition 187. What proposition 187 would have done is eliminate 
social services for illegal aliens. Not legal aliens or citizens, but 
for a people who are in this country illegally in the first place. An 
overwhelming 5\1/2\ million California taxpayers said enough is enough.
  They said that they have problems enough taking care of their own 
citizens and they voted to put a stop to this spending that costs 
California taxpayers over $200 million every year. But, amazingly, this 
overwhelming will of the people in California was snubbed by just one 
individual.
  Mr. Chairman, referendums, more than any other electoral process, 
reflect the direct will of the people and should not be easily cast 
aside. Under the current system, opponents of a referendum can go judge 
shopping to find one single judge that will stop the referendum. This 
legislation, the Bono voting rights legislation, will replace that 
practice with a three-judge panel from all parts of the State so that 
the referendum, the will of the people, gets a fair shake.
  I urge support of the voting rights bill and I urge opposition 
against the gutting Schroeder amendment.
  Mr. RIGGS. Mr. Chairman, will the gentleman yield?

[[Page H 9622]]

  Mr. HERGER. I yield to the gentleman from California.
  Mr. RIGGS. Mr. Chairman, I appreciate the gentleman yielding to me so 
I can respond to the previous speaker on the other side of the aisle. 
The gentlewoman from Texas [Ms. Jackson-Lee] referred to the 5 million 
California voters, who, as she points out in her remarks, 
overwhelmingly voted to approve proposition 187 as a disgruntled few.
  I would like to tell the gentlewoman that when I have my town 
meetings back home in my district, I am approached by constituents all 
too often who inquire about proposition 187 and they ask why 
proposition 187 is not the law of the State of California today. I have 
to explain to them about the Ninth District Court, about a very liberal 
and activist judiciary we have in that court.
  Mr. Chairman, I really believe what we are talking about here is 
correcting a flaw in the judicial system and correcting this bad 
practice, this precedent of thwarting the people's will by, in fact, 
venue shopping, or forum shopping. I want to point out again that these 
5 million disgruntled few are the voters we are disenfranchising by the 
law today.
  Mrs. SCHROEDER. Mr. Chairman, will the gentleman yield?
  Mr. HERGER. I yield to the gentlewoman from Colorado.
  Mrs. SCHROEDER. Mr. Chairman, I keep hearing these allegations of 
forum shopping. My understanding is that the district that this went to 
had 25 Federal judges and they are randomly assigned. My question is, 
Does the gentleman have some evidence of forum shopping we do not know 
about? And does random assignment in circumstances with more than one 
judge not prevent that type of forum shopping.
  Mr. HERGER. Mr. Chairman, to respond to the gentlewoman, again, what 
we are attempting to do is get the will of the people. We still have a 
situation where 5\1/2\ million, right at 60 percent of the voters of 
the State of California, voted overwhelmingly on a measure that would 
prevent their taxpayer dollars going to illegal aliens and we had a 
situation where one judge, one Federal judge, was able to upset the 
overwhelming will of the people of the State of California.
  What we are trying to do is at least bring in to play a three-judge 
panel so that the voters will have a better shake in future 
referendums.
  Mrs. SCHROEDER. Mr. Chairman, if the gentleman will continue to 
yield, have three judges not acted on that now? It has gone to the 
court of appeals and they unanimously upheld that one judge.
  I think what the gentleman is complaining about is the U.S. 
Constitution and a citizen's right to challenge, not the court system. 
That is why this is so troubling. This is not a solution for what the 
gentleman is saying his complaint is, which is the right of a citizen 
to challenge a statute that they think is unconstitutional.
  (Mr. MILLER of California asked and was given permission to revise 
and extend his remarks.)
  Mr. MILLER of California. Mr. Chairman, I move to strike the 
requisite number of words and to speak in support of the amendment.
  Mr. Chairman, the reason we are here today and the reason we are in 
this debate is because some of those who are elected to public office 
simply do not have the courage to explain the facts to the people they 
represent. In the State of California, that I represent, along with 
many of my colleagues in this body, we use the initiative process like 
some people change their clothes or change channels. It is not a pure 
process, it was put in as a reform, but now anybody who can came up 
with about $\1/2\ million, I can guarantee, can get the signatures for 
an initiative in California on any subject matter they desire to have 
put on that ballot.
  Many have ridiculed the California initiative process. Many people 
say it is crazy, it is out of bounds, whatever, but it is a means by 
which the people get to express their views on various issues. But it 
is not always the people that put it on the ballot. Very often it is a 
commercial interest. It is the tobacco industry that puts an initiative 
on. And then people who do not like smoking, but put an initiative on.
  The farm bureau put one on so nobody could regulate farm workers. The 
people turned that down. Then the farm workers put one on that said 
everybody has to regulate the farmers, and the people turned that down.
  When they got to putting a smoking initiative on they said, the 
people who wrote that said, people can smoke in rock concerts but they 
cannot smoke at the opera. The people said, that sounds funny, and they 
turned it down. The tobacco industry put on an initiative that said we 
will overrule all the local jurisdictions trying to eliminate smoking, 
and the people said that does not sound good, we will turn this down.
  Most of this happens because it gets stalled in the legislature. The 
insurance industry said we will have no fault insurance. Somebody else 
said, no, we will have fault, fault, fault insurance, and we passed 
both of those. The insurance industry, and the gentleman from 
California [Mr. Bono] maybe will remember this, I think they spent $20 
million on this. This was about the will of the people? This was not 
about the will of the people.
  Mr. Chairman, now along came 187 and people decided that they did not 
think they should any longer pay for illegal aliens in this country, 
residents in this country who had not come here legally. It made a lot 
of common sense. But as they got into it, they started writing it 
harder, harder, and kind of overreaching, going further and further, 
and they went right past the U.S. Constitution. People were emotionally 
caught up so they voted for it and it passed overwhelmingly.
  A lot of politicians were for it and a lot of politicians were 
against it. Most people reviewed it after the fact and said it probably 
was not the greatest idea. Well, the people who were impacted by it or 
disagreed with it under the laws of the land of the United States went 
to court and said, I think this is unconstitutional. The court said, 
well, I think they might be right, and they had a restraining order.
  Mr. Chairman, the people who lost on that side said this is not good, 
we will appeal it. They appealed it. It went to a three-judge panel and 
they said, we think the lower court might be right and they upheld the 
injunction. Those are the laws of the United States of America.
  Rather than tell people that some individual out there that might be 
impacted was petitioning the court to protect their rights under the 
Constitution of the United States, the gentleman from California [Mr. 
Bono] has decided he would make the Government the enemy. He has 
decided it was come corrupt judge who was not really giving him a fair 
shake; that was forum shopped.
  What the gentleman is suggesting is that somehow the system let the 
people down; the system let the people down because the judge came from 
northern California instead of southern California. Were they 
disenfranchised during the vote? Should they be disenfranchised from 
reviewing it? Of course not. This is not forum shopping, this was 
testing the provision against the Constitution.
  Mr. Chairman, this is not the first time this has happened. Not the 
first time in California. They have done it on handguns and other gun 
control measures. Sometimes we win and sometimes we lose. This is what 
the Constitution does, it protects the single individual, it protects 
the minority, it protects the unpopular, that they have a right to go 
and petition.
  If that one judge had ruled in the gentleman's favor, he would not be 
here today. But we must understand something. Because 5 million people 
in this country vote for something, that certainly makes us take 
notice, and that is why we are on the floor today, but it does not make 
their vote right in terms of the Constitution.
  Mr. Chairman, we have nine members across the lawn here that have 
overruled the desires many times and the wants of tens of millions of 
Americans when they decide cases, when the decide cases on abortion, or 
they decide cases on apportionment or on civil rights.
  The CHAIRMAN. The time of the gentleman from California [Mr. Miller] 
has expired.
  (By unanimous consent, Mr. Miller of California was to proceed for 3 
additional minutes.)
  Mr. MILLER of California. Mr. Chairman, if Members want to know how 
we 

[[Page H 9623]]
make cynical voters; if they want to know how to make people hate the 
system, it is that we mislead them about what the system did. Nobody 
was mistreated under this system. Those people that voted for 187 and 
those that voted against 187 are being protected throughout this 
process.
  The initial question of whether or not we should enjoin the law 
before we find out its impacts and who it will hurt and is it the 
Constitution, one individual deciding that is not a crime. Three 
individuals may be better or worse, but that is not why we are here 
today. We are here today because people have chosen to trash the 
Government rather than explain the Constitution and explain to people 
that sometimes might does not make right. We are one of the few 
countries where that is the case.
  Mr. Chairman, 5 million people voted Their views are being 
acknowledged. We have changed our attitudes here. We have changed the 
laws on immigration. The State legislature has done the same, and a lot 
of things have happened since that vote, but it does not necessarily 
mean that that vote is constitutional. People have a right to seek a 
review of that.
  We would be a better government, we would better serve the people if 
we leveled with them that there is a process, and whether it is the 
work product of the initiative in California, where people properly go 
to the polls, or whether it is the work product of this Congress, there 
is a means by which it is reviewed so that people can protect their 
rights and enforce others' responsibilities. It is the judicial system. 
And that was not abused in this process.
  Mr. Chairman, the judge did nothing willy-nilly. And I would not like 
to be this judge, overturning the views of a popular side of an 
election. But judges are there because they discharge tough issues, 
tough questions that are brought before them. They have to make that 
decision. We would probably want to have a hearing on it. We would 
probably want to send it to interim. We would want to hold it over till 
the next session, but that judge had to rule, and now the system is 
engaged.
  We would be better served if we discussed that rather than trying to 
refight proposition 187 on the backs of the judges and the courts and 
the system in this country, because I think all we do there is we 
mislead our constituents. We mislead the voters and mislead the 
citizens about what they can and cannot do under the Constitution of 
this country.
  The CHAIRMAN. The time of the gentleman from California [Mr. Miller] 
has again expired.
  (By unanimous consent, Mr. Miller of California was allowed to 
proceed for 3 additional minutes.)
  Mr. MILLER of California. Mr. Chairman, I yield to the gentleman from 
California [Mr. Bono].
  Mr. BONO. Mr. Chairman, first of all, if I understand the referendum 
system correctly, there is often a disillusionment on behalf of 
Government to the people, in that they do not act on things. They 
pontificate, but they do not necessarily act. At a certain point of 
frustration, the people themselves respond and get it done.
  Mr. Chairman, does the gentleman have the same passion about 
proposition 174, where the CTA spent $25 million to prevent the freedom 
of school choice and vouchers?
  Mr. MILLER of California. Mr. Chairman, reclaiming my time, and I 
will yield if the gentleman needs more time, but I would have the same 
passion. What I said at the outset, my point was this, if we want to 
represent that somehow the pure view and motives of the California 
voting public was overruled, and I am suggesting to the gentleman that 
we are all residents in California and we watched this process. The 
initiative process is the most manipulative process because usually it 
is bankrolled by tens of millions of dollars by people who want to 
change the rules of the game one way or another because they were not 
successful in the legislature for one reason or another.
  Mr. Chairman, this is not just Polly Purebreath and her friends 
coming out and saying, we want to do this for the good of society. It 
does not happen that way, because most of those people cannot gather 
the signatures because the legislature makes them get more and more 
signatures, which means citizens have to have more money, and the 
gentleman knows that.

                              {time}  1345

  Mr. BONO. Mr. Chairman, I just do not remember this argument when 174 
went down. Nobody seemed to object at all.
  Mr. MILLER of California. Mr. Chairman, reclaiming my time, if you 
lose in the courts, you lose in the courts. A lot of initiatives have 
gone down and people have shrugged their shoulders. That is the 
process.
  Mr. BONO. Mr. Chairman, if the gentleman would continue to yield, 
they lost at the ballot box.
  Mr. MILLER of California. Mr. Chairman, again reclaiming my time, 
what is happening here is the trashing, the absolute trashing of the 
Government for political motives, which is about trying to lead people 
to believe that somehow they have been screwed in the process, because 
somebody exercised their right on the court.
  Mr. GOODLATTE. Mr. Chairman, will the gentleman yield?
  Mr. MILLER of California. I yield to the gentleman from Virginia.
  Mr. GOODLATTE. Mr. Chairman, this bill does not apply to proposition 
187. My State of Virginia does not have initiatives, it just has 
referendums. But the State legislature can put a referendum on the 
ballot, millions of people can take time to go to the polls. The 
gentleman from California [Mr. Miller] pointed out that when millions 
of people were overruled by this nine-judge court, the Supreme Court, 
why is it not better to have a three-judge panel on these rare 
instances when millions of people participate in this process and want 
to have a little better assurance? It is a protection on both sides.
  That judge could have ruled that it was constitutional and the 
gentleman from California might have thought it was not constitutional. 
Why not have a three-judge panel and give better protection for the 
people?
  Mr. MILLER of California. Mr. Chairman, reclaiming my time, I am 
almost less concerned about the content than I am about the political 
motivation here. I think when we see a country that is more and more 
disenchanted with its institutions, we are suggesting here that when 
one side or the other, however it happened, whatever the issue is, and 
again we have been through this numerous times in California, when one 
side exercises their rights, people want to run around and suggest that 
they cheated. That somehow the institutions let them down. That is what 
concerns me here more than anything else.
  Again, there will be millions of people that will vote on initiatives 
this next election in California. We have several that are slated to 
come up. And in the gentleman's State of Virginia, they have the 
initiative process. That will happen, but that does not mean that the 
result of their work product, their voting and interest and 
involvement, is necessarily constitutional.
  The CHAIRMAN. The time of the gentleman from California [Mr. Miller] 
has again expired.
  (By unanimous consent, Mr. Miller of California was allowed to 
proceed for 1 additional minute.)
  Mr. MILLER of California. Mr. Chairman, this is more about suggesting 
to them that their review was outside of the system; that they should 
have prevailed simply because they won at the ballot box. The gentleman 
from Virginia [Mr. Goodlatte] knows, the gentleman is a lawyer, that is 
simply not the case. We do not get to do that.
  Mr. GOODLATTE. Mr. Chairman, if the gentleman will yield further, 
look ahead prospectively. This does not apply to proposition 187. 
Whatever the politics of that is, leave it behind and look ahead 
prospectively and say in the future we are going to tell people when 
they participate by the hundreds of thousands or the millions that they 
have the opportunity to be assured they will have a three-judge panel.
  Mr. Chairman, 10 times in 10 years is all this would have happened. 
Once a year. Very reasonable, it seems to me, when you bring that many 
people out, you get that many people aroused about an issue. And you 
may be right. Sometimes they are ginned up over something that is not a 
good idea. Let us look at it more carefully with a three-judge panel.
  Mr. MOORHEAD. Mr. Chairman, will the gentleman yield?

[[Page H 9624]]

  Mr. MILLER of California. I yield to the gentleman from California.
  Mr. MOORHEAD. Mr. Chairman, I want to tell the gentleman from 
California [Mr. Miller] that I love the court system, having practiced 
in it a great deal of my life and having been on the committee that has 
jurisdiction over the courts for many years. I would not trash the 
courts for any reason. I love this body that we are in, the House of 
Representatives, and I would not trash it in any way either.
  I just want to make the court system better, where our responsibility 
leads us in that direction.
  The CHAIRMAN. The time of the gentleman from California [Mr. Miller] 
has again expired.
  (On request of Mrs. Schroeder, and by unanimous consent, Mr. Miller 
of California was allowed to proceed for 2 additional minutes.)
  Mr. MILLER of California. Mr. Chairman, I yield to the gentlewoman 
from Colorado.
  Mrs. SCHROEDER. Mr. Chairman, I think if I can answer some of the 
questions that I think the gentleman from California has so eloquently 
asked, and I really salute the gentleman for taking the floor, we had 
this process in 1976, and this Congress unanimously did away with it, 
because they said it was so burdensome on the court.
  Mr. Chairman, it takes three judges. You have to pull them out of 
their courtrooms in different places. We know that the Federal system 
is absolutely overloaded with drug cases, crime cases. We do not want 
to give any more resources to the courts, so we are handing them 
another mandate.
  Mr. Chairman, I think the other issue that has been raised is this 
gives them a direct access to the Supreme Court without an appellate 
record, because they do not go through the Court of Appeals. Other 
people do not get direct access to the Supreme Court. They have got to 
go and make their case and the Supreme Court picks and chooses the ones 
they want. But this gives them direct access and it is a wonderful way 
to just push everybody else out of the line.
  Mr. Chairman, I think what my colleagues are doing is treating 
somebody unfairly, and so does Justice Rehnquist and his group that has 
sent us a letter asking us, please, to remember our history; to 
remember we tried this from 1948 to 1976; to remember we are the ones 
who do not want to give anyone else any more resources for anything; 
and to say that this is not a good idea.
  So, Mr. Chairman, I thank the gentleman for pointing that out.
  Mr. MILLER of California. Mr. Chairman, reclaiming my time, I thank 
the gentlewoman from Colorado. I think the gentlewoman raises a good 
point. My concern here is that if we had a three-judge panel in place 
after 187, and that three-judge panel, as did the appellate panel, find 
that there were these constitutional questions, we would be here today 
asking for a five-judge panel. Because this is about a political 
motivation to try to tell the people that they got cheated out of a 
result that they voted for, before we know whether or not that result 
is constitutional.
  Mr. Chairman, we are just here politically trashing the courts. This 
judge is a perfectly honorable person, and I am assume the three judges 
were perfectly honorable judges. But some people believe that when they 
lose, somebody cheated, and then they have to run around and tell 
everyone.
  Mr. Chairman, I do not think the people who are vehement on this 
issue on 187 would be here saying we have 3 judges overruling 5 million 
people, so that sound like a good deal. That is not the case at all. I 
just think the motivation here is terribly bad. I think it is terribly 
costly for the court system and costly for the institutions of this 
country and I think it is how we make cynics out of the American 
public.
  Mr. BILBRAY. Mr. Chairman, I move to strike the requisite number of 
words.
  (Mr. BILBRAY asked and was given permission to revise and extend his 
remarks.)
  Mr. BILBRAY. Mr. Chairman, I keep hearing references to 187, and all 
I have got to say it is not even 5 million we are talking about. We are 
talking about the almost 10 million people, because people voted for 
and against, through their electoral process, for the initiative. And 
fine, that is one thing.
  But I am talking about consistency now and let us talk about the 
Constitution and the concepts of the Constitution.
  The fact is, right now we have a process with three judges for 
reapportionment and that has stood since the 1940's and was reaffirmed 
by the Congress back in 1976, that we were going to maintain that. What 
has happened is that we have found a glitch where the existing statutes 
do not follow Supreme Court ruling and that it is inconsistent. The 
proposal of the gentleman from California [Mr. Bono] makes the law 
consistent with the Supreme Court ruling on the Constitution. So this 
act is a constitutionally compatible activity.
  Mr. Chairman, let me remind my colleagues, in Baker versus Carr, 
Justice Clark said, and I quote, ``By the use of a referendum, a State 
is reapportioned into single voting district to vote directly on 
legislation.''
  All the legislation of the gentleman from California [Mr. Bono] is 
saying is that we are going to be consistent now with the Supreme Court 
ruling. It is really talking about: Let us have our laws reflect the 
Constitution as clarified by the Supreme Court.
  Mr. Chairman, I hear my colleagues on the other side of the aisle 
keep saying about the Constitution is supreme and we should follow it, 
and I agree. But here we have a Supreme Court ruling that says: This is 
a constitutional issue and this is a Voting Rights Act issue. It is not 
a Crime Act issue; it is not a drug issue; it is not a violent crime 
issue. It is a Voting Rights Act issue.
  Mr. Chairman, there are Members of this Congress who have been here 
since 1976 and who supported having the three-judge process for 
reapportionment. I have not heard horror stories about how terrible and 
how absolutely outrageous this process has been since then. It has 
worked for reapportionment.
  Under Justice Clark's ruling, all the gentleman from California [Mr. 
Bono] says is let us reflect the fact that the initiative process is a 
reapportionment issue and should be treated equal to with the same 
process that reapportionment has had since the 1940's and was 
specifically retained by this Congress back in 1976.
  Mr. Chairman, I have to say to the gentlewoman from Colorado [Mrs. 
Schroeder], if it is going to cause so many problems to follow the lead 
of the gentleman from California [Mr. Bono] on this thing, then why was 
this law not changed in 1976? Why did we not have these conditions 
before?
  Mrs. SCHROEDER. Mr. Chairman, will the gentleman yield?
  Mr. BILBRAY. I yield to the gentlewoman from Colorado.
  Mrs. SCHROEDER. Mr. Chairman, it was changed in 1976. They had 3-
judge panels from 1948 to 1976, and in 1976, the House and Senate 
changed it at the request of the courts. The courts today have written 
a letter, I am sure the gentleman from California [Mr. Bilbray] has 
seen it, begging us not to do this again because it is so onerous.
  It really impacts on all of their different dockets that they have 
got that are so backed up and it does not end up with any result. They 
still get a 3-court panel, because they get to appeal to the Court of 
Appeals. So they are saying, ``Wait a minute, wait a minute. This is 
very different.'' And the voting rights case only happened once a 
decade. That is a little bit unique. That is once a decade. And that is 
a very different type of case from this. There are 20 referendums a 
year.
  Mr. BILBRAY. Mr. Chairman, reclaiming my time, Justice Clark was 
clarifying that it is not a totally different issue and that has not 
been overturned yet. The letters from the judges, as somebody who ran a 
county of 2.5 million full of judges, I know what the process likes to 
be and would like to be. They have to follow the Constitution too.
  Mr. Chairman, this clarifies the fact that again, if the 3-judge 
process has worked and continues to work with reapportionment, then all 
parts of activity that relate to reapportionment should be following 
the same rule. Mr. Chairman, I insist that we recognize that the 
gentleman from California [Mr. Bono] is only reinforcing a ruling that 
was made by the Supreme Court and basically statutorily corrects an 
inconsistency that we have detected recently. And we not only have the 
right 

[[Page H 9625]]
to correct this inconsistency; we have the responsibility.
  The CHAIRMAN. The question is on the amendment offered by the 
gentlewoman from Colorado [Mrs. Schroeder].
  The question was taken; and the Chair announced that the noes 
appeared to have it.
  Mrs. SCHROEDER. Mr. Chairman, I demand a recorded vote, and pending 
that, I make the point of order that a quorum is not present.
  The CHAIRMAN. Pursuant to the order of the House of today, further 
proceedings on the amendment offered by the gentlewoman from Colorado 
[Mrs. Schroeder] will be postponed.
  The point no quorum is considered as having been withdrawn.
  Mr. MOORHEAD. Mr. Chairman, I move that the Committee do now rise.
  The motion was agreed to.
  Accordingly the Committee rose; and the Speaker pro tempore (Mr. 
Dreier) having assumed the chair, Mr. Ewing, 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. 1170) to 
provide that cases challenging the constitutionality of measures passed 
by State referendum be heard by a 3-judge panel, had come to no 
resolution thereon.

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