[Congressional Record Volume 141, Number 154 (Friday, September 29, 1995)]
[Senate]
[Pages S14573-S14609]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEPARTMENT OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 1996
The PRESIDENT pro tempore. The clerk will report the pending bill.
The assistant legislative clerk read as follows:
A bill (H.R. 2076) making appropriations for the Department
of Commerce, Justice, and State, the Judiciary and related
agencies for the fiscal year ending September 30, 1996, and
for other purposes.
The Senate resumed consideration of the bill.
Pending:
Biden amendment No. 2815, to restore funding for grants to
combat violence against women.
McCain-Dorgan amendment No. 2816, to ensure competitive
bidding for DBS spectrum.
Kerrey amendment No. 2817, to decrease the amount of
funding for Federal Bureau of Investigation construction and
increase the amount of funding for the National Information
Infrastructure.
Biden-Bryan amendment No. 2818, to restore funding for
residential substance abuse treatment for State prisoners,
rural drug enforcement assistance, the Public Safety
Partnership and Community Policing Act of 1994, drug courts,
grants or contracts to the Boys and Girls Clubs of America to
establish Boys and Girls Clubs in public housing, and law
enforcement family support programs, to restore the authority
of the Office of National Drug Control Policy, to strike the
State and Local Law Enforcement Assistance Block Grant
Program, and to restore the option of States to use prison
block grant funds for boot camps.
Domenici amendment No. 2819 (to committee amendment on page
26, line 18), to improve provisions relating to
appropriations for legal assistance.
Amendment No. 2816
The PRESIDENT pro tempore. Under the previous order, the Senate will
now resume consideration of the McCain amendment No. 2816 on which
there shall be 60 minutes equally divided.
Mr. McCAIN. Mr. President, I yield myself such time as I may consume.
Mr. President, I intend to be brief, and I note the presence of the
Senator from North Dakota here on the floor. I know that he needs at
least 10 minutes of the 30 minutes for this side.
I just want to recap the situation as I see this amendment. First of
all, Mr. President, the choice is clear here what we are talking about.
The question is whether we will auction this spectrum off, which,
according to experts, the value is between $300 and $700 million, or it
will be granted to a very large and very powerful corporation in
America for considerably less money. Originally it was going to be
about $5 million and up to $45 million, and now I understand it is
about $100 million.
I want to briefly describe the chronology of how we got where we are
today. I want to repeat before I continue, I have no interest in this
issue. There is no company in my State. There is no corporation that I
have engaged in the dialog on this issue. I am simply involved in this
issue, as is the Senator from North Dakota, because what is at stake
here is whether the American taxpayers will be deprived of somewhere
between $300 and $700 million.
For the record, Mr. President, I point out that on September 16,
1995, ACC, which was the original holder of the license for this
spectrum, entered into an agreement with TCI to sell its spectrum to
TCI for $45 million. The ACC costs at that time were estimated to have
been $5 million. Such a sale would have meant that ACC would actually
have profited from warehousing this spectrum for 10 years.
In August and September of 1995, TCI had a sweetheart deal pending
before the FCC as follows: TCI would give up some of the allocated DBS
spectrum and in return receive the ACC at a cost of $5 million, which
is to pay for costs incurred by ACC. The $5 million would not be paid
in cash. Instead, it would
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be in the form of Primestar stock, which could have a much greater
value than the original $45 million.
The spectrum given up by TCI is valued at substantially less value
than the ACC spectrum. TCI would give up 11 channels at 119 degrees and
spectrum, allowing DBS service be provided to Latin America, the
Pacific rim, and China.
No industry expert believes at this time that those markets will be
nearly as lucrative as the U.S. market. The week of September 18, 1995,
TCI proposes it be given the spectrum at 110 degrees west latitude
orbit and gives up DBS spectrum as noted above, which is sold at public
auction. Whatever the price such spectrum is sold for is the price TCI
pays for the 110 degree west longitude orbit spectrum.
September 25, 1995, it is reported that an alternative plan has been
developed allowing Primestar access to DBS channels at prices well
above $45 million. TCI expected to pay for advanced communications for
channels. Now we hear about a plan where TCI will pay $100 million for
the channels.
Mr. President, if TCI says the spectrum is worth $100 million and
they are prepared to pay $100 million, then let them bid $100 million.
TCI is proposing they pay $100 million for the spectrum and they will
give up other spectrum.
Under this auction plan they could keep their current spectrum and
win at auction the new spectrum. If all spectrum is equal, it does make
good business sense for TCI to have as much spectrum as possible. Of
course it does. TCI knows the value of spectrum and knows what it wants
to give up is valueless compared to what it wants to receive.
Why would one company change the amount it is willing to pay from $5
to $100 million in a matter of months?
Mr. President, last night--I have not had a chance to talk to my
friend from Colorado. He proposed a compromise that the amendment
should read that the auction should be conducted within 60 days, and I
want to tell my friend from Colorado I am still prepared to accept that
amendment.
Mr. President, I reserve the remainder of my time.
Mr. CAMPBELL. Mr. President, there will be much discussion today
about estimates of money, but very little about who stands to make it.
Of course we are all interested in supporting actions that will aid the
National Treasury. However, with regard to this amendment, as the
Congressional Budget Office has pointed out, the Federal Communications
Commission can hold auctions for the licenses in question, and as I
understand it, is already considering a proposal that would raise even
more money than we are currently considering in this amendment without
any legislative intervention on our part.
However, it should be noted in this debate that one of the supporting
groups will definitely gain from the passage of this amendment. The
National Rural Telecommunications Cooperative, the NRTC, which has
loudly supported this amendment, has very good reason to do so. The
NRTC has an exclusive contract in many rural areas to market the DBS
service of General Motors' direct TV. So any delay in introducing
significant high-power DBS competition will benefit the NRTC's
exclusive sales deal.
I do not criticize the NRTC for having such a deal, but I think it is
important to know as we discuss this amendment and note who is
supporting it, that the NRTC is far from a disinterested party. In
fact, the delays that this amendment will create in the ability of any
major competitor to challenge the dominance of direct TV works directly
in favor of those such as the NRTC who retain monopoly sales rights in
rural America.
This is a far more complex subject than we are even aware. The
implications of what this amendment would do are unknown. There have
been no hearings. The expert agency is already considering the issues
involved. It already has the authority to both do what is right and
assure maximum benefit for the value of the licenses. It is bad public
policy for this body to step in and interfere with the adjudicatory
process of an agency when we don't even know who the parties are in the
dispute.
That is why the bipartisan leadership of the Commerce Committee
opposes this amendment and why my colleagues should also oppose it. The
modification of this amendment as offered by the Senator from Arizona
[Mr. McCain], seems to resolve our disagreement and heartily support
this compromise.
Mr. BROWN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HOLLINGS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Campbell). Without objection, it is so
ordered.
Committee Amendment on Page 79, Lines 1 Through 6
Mr. HOLLINGS. Mr. President, on last evening there was a managers'
amendment. A mistake in the actual drafting was made. This has been
cleared on both sides. Mr. President, I ask unanimous consent the
committee amendment on page 79, lines 1 through 6, be withdrawn.
The PRESIDING OFFICER. Without objection, it is so ordered.
So the committee amendment on page 79, lines 1 through 6, was
withdrawn.
Mr. HOLLINGS. I thank the Chair and the staff who caught this for us.
I am glad it is corrected.
Amendment No. 2816
Mr. HOLLINGS. Just one word about the McCain-Dorgan amendment. Once
again, this, of course, is the Congress injecting itself into the
functions and responsibilities of the Federal Communications
Commission. There is no question at this very moment the FCC can
auction the so-called spectrum that is now in dispute. I emphasize
``dispute'' because it is a legal case that has been in the courts,
now, for over a year. It is on appeal.
There has been a vote, so to speak, informally, at least, by way of
reports. Lawyers call from both sides of this case. I understand, now,
the vote is 2 to 2 at the FCC: Two members of the FCC disposed toward
an auction, two disposed toward what they characterize as the
recommendation of the staff--the staff that studied this case and
handled the testimony and otherwise. There is one indecisive member.
So we come with an amendment, without any hearings, without really
knowing what we are talking about and doing, and we say we know how to
grant licenses and everything of that kind, so hereby is the way to do
it.
The fact is, this Senator is very anxious, like all Senators, to find
money. In fact, at this stage of the Congress, it is like tying two
cats by the tails and throwing them over the clothesline and letting
them claw each other. No Senator can put up an amendment that he does
not take away money from some other Senator or some other function.
So I cosponsored, with the distinguished Senator from Alaska, the
auction process that has already reaped some $9 billion. I went along,
of course, with another $8.3 billion offset in the telecom bill by way
of auction.
So I am very much for auctions, and I am very much for the money
being reaped by the Government itself. That is what we are here for, to
look out for all the people.
Having said that, I see the parties on the floor here, and they have
been discussing it.
So I reserve the remainder of our time.
Mr. DORGAN. Mr. President, under the time agreement, I yield myself
such time as I may use from the time allocated to Senator McCain and
myself.
The PRESIDING OFFICER. The Senator from North Dakota [Mr. Dorgan] is
recognized.
Mr. DORGAN. Mr. President, I would like to discuss this issue
generally and begin by saying that I join Senator McCain, the Senator
from Arizona, in offering an amendment. I do not have any special
interest in this issue. I state, as Senator McCain did, that I do not
have company headquarters or company interests in North Dakota dealing
with this issue. I do not have any great concern or interest in who
ends up with these licenses. That is not my interest. My interest today
is with the taxpayer. The issue here is an issue of anywhere from $300
to $700 million. Senator McCain, I think, has well described the
history. But let me just thumbnail it again.
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Ten years ago, the Federal Communications Commission awarded special
national licenses for the launching of direct broadcast satellite
systems in three orbital locations. They are the only three orbital
locations that are available that will provide DBS services nationally
across the country. So 10 years ago, they awarded licenses for these
slots would provide direct broadcast satellite services that would
reach all across the country. Two of those licensees have performed,
and have moved ahead. Another will launch soon. But one of the original
licensees did not perform. It did not perform what is called due
diligence. It had the license, but in 10 years did not perform due
diligence and, therefore, the FCC said, ``Since you are not going to
perform, we will take the license back.''
The original licenses were awarded free of charge in exchange for
them going ahead and developing these systems. They got the licenses,
which had enormous value, free of charge. When one of the licensees did
not perform, the FCC took it back.
What value does it have? If the FCC were to auction it off, were to
find a company now to run it, or who wants to participate in this DBS
system, it is estimated that at an auction it would raise from $300 to
$700 million. It has very substantial value. That is the value to the
taxpayers. The taxpayers own this spectrum.
What has happened is when the FCC pulled the license back and said,
``If you are not going to perform, we will take the license back,'' and
did, the company that was not performing began talking with other
companies, especially large cable companies, and they began to try to
make a deal for this in order to accomplish a handoff. That is the
process that is now under discussion at the FCC.
The amendment offered by the Senator from Arizona and myself is an
amendment that says we think that this simply should go to auction. Let
us just have an auction for the third slot. Let us have the taxpayers,
the American public, benefit from the $300 to $700 million that will be
raised.
I do not care who wins the auction. I have no interest in any of
these companies. It just ought to be auctioned, and the money raised go
to the public Treasury, reduce the Federal deficit, or do other things.
But in any event, the taxpayers ought to get full value for this
spectrum.
That is the point of the amendment. I might say that I think the DBS
systems are breathtaking and wonderful achievements. They will provide
spectacular new technology and competition in the rural areas of
America and all over our country. The Presiding Officer is from
Colorado, and Colorado has rural regions and small towns far away from
many major locations, just as my State of North Dakota.
I have often wondered how we, in small communities, are going to be
able to take advantage of this communications breakthrough. This is
part of the answer: Direct broadcast satellite systems that reach all
parts of this country.
These are wonderful things for our future. It is going to enhance
communications and provide entertainment and information to everyone in
this country. It represents competition, as well, competition to the
wired cable systems in our country.
So I am excited about all of this. I want all three systems to be up
and operating.
The point that we make in this amendment is not a point directed at
any company, to favor any company or to penalize any company. God bless
them all. Let them go at it and provide this breathtaking new
technology. Our point is a point that we make on behalf of the
taxpayers. We want this spectrum, which has significant value, to
provide its value to the American taxpayer. This is a $300 to $700
million question. And the question ought to be answered, in our
judgment, in favor of the American taxpayer.
That is why we bring this amendment to the floor. We want the FCC to
auction that third license. That is what our amendment provides.
Mr. President, I reserve the remainder of our time.
Amendment No. 2816, As Modified
Mr. McCAIN. Mr. President, I ask unanimous consent to modify my
amendment. The modification is at the desk.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment (No. 2816), as modified, is as follows:
At the end of the pending committee amendment, insert the
following new section:
``SEC. . COMPETITIVE BIDDING FOR ASSIGNMENT OF DBS
LICENSES.
No funds provided in this or any other Act shall be
expended to take any action regarding the applications that
bear Federal Communications Commission File Numbers DBS-94-
11EXT, DBS-94-15ACP, and DBS-94-16MP; Provided further, that
funds shall be made available for any action taken by the
Federal Communications Commission to use the competitive
bidding process prescribed in Section 309(j) of the
Communications Act of 1934 (47 U.S.C. section 309(j))
regarding the disposition of the 27 channels at 110 degrees
W.L. orbital location; Provided further, That the provisions
of this section apply unless the Federal Communications
Commission determines that an alternative adjudication would
yield more money for the U.S. Treasury.''
Mr. McCAIN. Mr. President, the modification at the desk is very
simple language. It adds one sentence that I have discussed with
Senator Dorgan and with Senator Brown. At the end of the amendment, it
adds the following language:
Provided further, that the provisions of this section apply
unless the Federal Communications Commission determines that
an alternative adjudication would yield more money for the
U.S. Treasury.
After discussion with Senator Brown and Senator Dorgan, Mr.
President, that is the whole logic of what we are trying to do here. We
find it not only acceptable, but a definition of what we are trying to
achieve.
I thank Senator Brown for agreeing to this modification.
I reserve the remainder of my time. I would like to yield 1 minute to
the Senator from North Dakota.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, the modification that has been offered by
Senator McCain is one that, as I understand it, would suggest that, if
there is an alternative approach that would yield as much or more to
the U.S. Treasury and the taxpayer, that would be acceptable. That
presumes that approach meets the test of fairness, and meets all the
other tests of fairness required under an FCC process.
Again, it is not our intention on the floor of the Senate to be
talking about who should be involved in this. I have no interest in
that at all--none. The question is, What cost does the American
taxpayer, who owns this spectrum, get for this process under these
circumstances where one licensee did not perform and the license has
been taken back by the FCC?
We want full value for that spectrum. That is what our amendment asks
for, and the modification does not change that request. I am pleased to
accept the modification, as well.
Mr. BROWN. Mr. President, I want to add my voice of support for the
modification.
We are all very wary of having Congress intervene in the middle of
the adjudicatory action by the FCC. I think all Members are aware that
there is a great deal of money available in the disposition of this
matter. What I like so much about the modification, Mr. President, is
simply this: It leaves the FCC free to pick an option that raises the
most money for the Treasury. It puts this Congress in a position of not
trying to dictate an option that may be less advantageous for the
taxpayers. It makes it clear that the FCC retains some power to pick
the best option for the taxpayers--one that will bring in the most
revenue to the United States.
Frankly, it seems to me that the modification represents the
appropriate position both for the FCC and for this Congress. We should
not be in the business of precluding the options of the FCC while they
are adjudicating a matter.
I commend the Senator from Arizona for his modification. I believe it
settles this question in terms of this Chamber and that the measure has
unanimous support.
Mr. President, I do not know if the Senator wishes to retain his
record vote. Obviously, if he does, that is fine. But my sense is that
at this point the Chamber is ready to accept his modified amendment
unanimously.
Mr. McCAIN. Mr. President, I thank again the Senator from Colorado. I
do
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not know a finer individual in the Senate than Senator Brown from
Colorado. He has always had the interests of the constituents and
fairness in mind. It has been a privilege for me to work with him on
many, many issues, especially those that are in opposition to
procedures around here that sometimes deprive the taxpayers of their
hard-earned tax dollars in a way which is unacceptable to the vast
majority of them. His agreement to modify this amendment so that it is
more clear and achieves the goal which we seek is I think indicative of
the individual.
It is worth pointing out that the company which is directly affected
by this legislation is located in his State. So I want to thank him for
his agreement. I believe that he has strengthened what we are trying to
do and that is to provide the taxpayer with the maximum amount of
dollars for the property they actually own.
Mr. President, I have a legal document that I think is important to
bolster this argument I would like to ask unanimous consent be made a
part of the Record. It is a series of legal opinions concerning this
entire issue. I am pleased to note again that I am not a lawyer, but I
do believe that on an issue like this the Congressional Record should
contain legal documentation to bolster the argument the Senator from
North Dakota and I have been making on the urgency and importance and
the legality of having an auction of this spectrum to provide the
taxpayers with the maximum return on this very valuable resource they
own.
Mr. President, I ask unanimous consent that this document be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
No Holder of an FCC Construction Permit Has Any Right to Regulatory
Approval of FA Transfer for Private Profit
Federal law does not provide a right to a private company
to hoard spectrum and then sell its bare bones construction
permit for private gain. Rather, the Federal Communications
Commission has a long-standing public policy against any
private party ``warehousing'' this scarce public resource.
Underlying this policy is the requirement contained in the
Communications Act of 1934 that a construction permit will be
automatically forfeited if the system in question is not
ready for operation within the time specified by the
Commission's rules or within such further time as the
Commission may allow. 47 U.S.C. Sec. 319 (b).
The rules for the various services for which the Commission
issues licenses specifically address construction permit
requirements and the public policy objectives behind these
requirements. The Commission routinely revokes construction
permits or fails to grant time extensions to permit holders
who fail to construct a system on a timely basis as required
in each service.
For example:
Direct Broadcast Satellite (DBS) Service.--When the
Commission adopted in 1982 the licensing condition rules for
DBS service, it determined that these rules were necessary to
``assure that those applicants that are granted construction
permits go forward expeditiously,'' Inquiry into the
Development of Regulatory Policy in Regard to Direct
Broadcast Satellites. Report and Order, 90 FCC Rcd. 676, 719
(1982). The rules provide that a construction permittee must
complete construction of a satellite of complete contracting
for construction of a satellite within one year of the grant
of the permit and be in operation within six years of the
construction permit grant, unless the Commission grants an
extension upon a proper showing in a particular case.
Transfer of control of the permit will not be considered to
justify an extension. See 47 U.S.C. Sec. 100.19(b).
In the ACC case, ACC entered into a contract with TCI for
reportedly $45 million in TCI stock contingent upon a second
extension of ACC's construction permit. ACC and TCI assumed a
business risk when it entered this contingent contract
because both companies were fully aware that ACC had been
``hoarding'' spectrum as shown by the record developed at the
FCC. Any reliance these companies may have had on FCC
approval in this case would have been totally unreasonable
and unjustified under the FCC's current DBS rules. As the
International Bureau noted in its decision revoking ACC's DBS
construction permit.
Advanced has had over ten years, including one four-year
extension, in which to construct and launch its DBS system.
It has failed to do so. It has thereby failed to meet the
Commission's due diligence rules--imposed a decade ago--to
ensure that the public received prompt DBS service. In the
meantime, the channels and orbital positions assigned to
Advanced have gone unused. Other DBS licensees have already
begun operation. Only by enforcing the progress requirements
of the Commission's rules can we ensure that allocated
resources will be efficiently and expeditiously put into
productive use.
Advanced Communications Corp. Memorandum Opinion and Order
(Released April 27, 1995).
Personal Communications Service (PCS).--Most recently, when
the Commission adopted rules for the new PCS service, it
specifically included construction requirements. Although the
Commission expressed the belief that the use of competitive
bidding (or auctions) would provide the winners with economic
incentives to construct, and conversely, disincentives to
warehouse the spectrum, nevertheless the Commission said ``we
continue to believe that minimum construction requirements
are necessary to ensure that PCS service is made available to
as many communities as possible and that the spectrum is used
effectively.'' Amendment of the Commission's Rules to
Establish New Personnel Communications Services, Memorandum
Opinion and Order (Released June 13, 1994). PCS licensees are
required to serve at least one-third of the population in
their licensed area within 5 years of being licensed and at
least two-thirds of the population in this area within 10
years. The rules specifically provide: ``failure by any
licensee to meet these requirements will result in forfeiture
or non-renewal of the license and the licensee will be
ineligible to regain it.'' 47 C.F.R. Sec. 24.203(a).
Although the first PCS licensees were only awarded three
months ago, PCS licensees are already on notice that if they
do not build these systems in a timely fashion, the
Commission will revoke these licenses even though the
licensee may have paid millions of dollars for the privilege.
Multipoint Distribution Service and Multichannel Multipoint
Distribution Service (AKA ``Wireless Cable'').--When the
Commission revised its rules with regard to fixed radio
services, the Commission noted that carriers who fail
promptly to construct facilities preclude other applicants
who are willing, ready, and able of delaying, or even
denying, service to the public. Revision of Part 21 of the
Commission's rules, 2 FCC Rcd. 5713 (1987). The Commission's
rules for these services provide that a license shall be
forfeited automatically when the period permitted under the
construction permit expires. 47 C.F.R. Sec. 21.44. See also
Cable TV Services, 8 FCC Rcd. 3204 (1993) (wireless cable
construction permit revoked for failure to construct); Miami
MDS Company, 7 FCC Rcd. 4347 (1992) (construction permit not
renewed because of failure to construct within allotted time
period).
Television and Radio Broadcasting.--The Mass Media Bureau
routinely revokes construction permits or denies renewals for
unbuilt broadcast stations under delegated authority from the
Commission. These procedures are so commonplace that they are
oftentimes handled by letter from the Bureau rather than by
reported decision. See attached letter to New Orleans Channel
20 in which the Mass Media Bureau denies an extension of a
construction permit and denies transfer (sale) of the
construction permit. The construction permit rules for
broadcast stations are contained in 47 C.F.R. Sec. 73.3534.
subpart a--general information
Sec. 100.1 Basis and purpose.
(a) The rules following in this part are promulgated
pursuant to the provisions of Title III of the Communications
Act of 1934, as amended, which vests authority in the Federal
Communications Commission to regulate radio transmissions and
to issue licenses for radio stations.
(b) The purpose of this part is to prescribe the manner in
which parts of the radio frequency spectrum may be made
available for the development of interim direct broadcast
satellite service. Interim direct broadcast satellite systems
shall be granted licenses pursuant to these interim rules
during the period prior to the adoption of permanent rules.
The Direct Broadcast Satellite Service shall operate in the
frequency band 12.2-12.7 GHz.
Sec. 100.3 Definitions.
Direct Broadcast Satellite Service. A radiocommunication
service in which signals transmitted or retransmitted by
space stations are intended for direct reception by the
general public. In the Direct Broadcast Satellite Service the
term direct reception shall encompass both individual
reception and community reception.
subpart b--administrative procedures
Sec. 100.11 Eligibility.
An authorization for operation of a station in the Direct
Broadcast Satellite Service shall not be granted to or held
by:
(a) Any alien or the representative of any alien;
(b) Any foreign government or the representative thereof;
(c) Any corporation organized under the laws of any foreign
government;
(d) Any corporation of which any officer or director is an
alien;
(e) Any corporation of which more than one-fifth of the
capital stock is owned of record or voted by aliens or their
representatives or by a foreign government or representative
thereof, or by any corporation organized under the laws of a
foreign country;
(f) Any corporation directly or indirectly controlled by
any other corporation of which any officer or more than one-
fourth of the directors are aliens, if the Commission finds
that the public interest will be served by the refusal or
revocation of such license; or
(g) Any corporation directly or indirectly controlled by
any other corporation of which more than one-fourth of the
capital stock is owned of record or voted by aliens, their
representatives, or by a foreign government or
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representatives thereof, or by any corporation organized under the laws
of a foreign country, if the Commission finds that the public
interest will be served by the refusal or revocation of such
license.
Sec. 100.13 Application requirements.
(a) Each application for an interim direct broadcast
satellite system shall include a showing describing the type
of service that will be provided, the technology that will be
employed, and all other pertinent information. The
application may be presented in narrative format.
(b) Applicants may request specific frequencies and orbital
positions. However, frequencies and orbital positions shall
not be assigned until completion of the 1983 Region 2
Administrative Radio Conference for the Broadcasting-
Satellite Service. The Commission shall generally consider
all frequencies and orbital positions to be of equal value,
and conflicting requests for frequencies and orbital
positions will not necessarily give rise to comparative
hearing rights as long as unassigned frequencies and orbital
slots remain.
Sec. 100.15 Licensing procedures
(a) Each application for an interim direct broadcast
satellite system shall be placed on public notice for 45
days, during which time interested parties may file comments
and petitions related to the application.
(b) A 45 day cut-off period shall also be established for
the filing of applications to be considered in conjunction
with the original application. Additional applications filed
before the cutoff date shall be considered to have equal
priority with the original application and shall be
considered together in the assignment of frequencies and
orbital positions. If applications have included requests for
particular requencies or orbital positions, the cutoff date
shall be considered in establishing the priority of such
requests.
(c) Each application for an interim direct broadcast
satellite system, after the public comment period and staff
review shall be acted upon by the Commission to determine if
authorization of the proposed system is in the public
interest.
Sec. 100.17 License term.
All authorizations for interim direct broadcast satellite
systems shall be granted for a period of five years.
Sec. 100.19 License conditions.
(a) All authorizations for interim direct broadcast
satellite systems shall be subject to the policies set forth
in the Report and Order in General Docket 80-603 and with any
policies and rules the Commission may adopt at a later date.
It is the intention of the Commission, however, that in most
circumstances the regulatory policies in force at the time of
authorization to construct a satellite shall remain in force
for that satellite throughout its operating lifetime.
(b) Parties granted authorizations shall proceed with
diligence in constructing interim direct broadcast satellite
systems. Permittees of interim direct broadcast satellite
systems shall be required to begin construction or complete
contracting for construction of the satellite station within
one year of the grant of the construction permit. The
satellite station shall also be required to be in operation
within six years of the construction permit grant, unless
otherwise determined by the Commission upon proper showing in
any particular case. Transfer of control of the construction
permit shall not be considered to justify extension of these
deadlines.
subpart c--technical requirements
Sec. 100.21 technical requirements
Prior to the 1983 Regional Administrative Radio Conference
for the Broadcasting--Satellite Service, interim direct
broadcast satellite systems shall be operated in accordance
with the sharing criteria and technical characteristics
contained in Annexes 8 and 9 of the Final Acts of the World
Administrative Radio Conference for the Planning of the
Broadcasting-Satellite Service in Frequency Bands 11.7-12.2
GHz (in Regions 2 and 3) and 11.7-12.5 GHz (in Region 1),
Geneva, 1977; Provided, however, That upon adequate showing
systems may be implemented that use values for the technical
characteristics different from those specified in the Final
Acts if such action does not result in interference to other
operational or planned systems in excess of that determined
in accordance with Annex 9 of the Final Acts.
subpart d--operating requirements
Sec. 100.51 Equal employment opportunities
(a) General policy. Equal opportunity in employment shall
be afforded all licensees or permittees of direct broadcast
satellite stations licensed as broadcasters to all qualified
persons, and no person shall be discriminated against in
employment because of race, color, religion, national origin,
or sex.
(b) Equal employment opportunity program. Each station
shall establish, maintain, and carry out a positive
continuing program of specific practices designed to assure
equal opportunity in every aspect of station employment
policy and practice. Under the terms of its program, a
station shall:
____
[DA 95-944]
Before the Federal Communications Commission, Washington, DC 20554
In the Matter of Advanced Communications Corporation,
application for extension of time to construct, launch and
operate a direct broadcast satellite system, application for
consent to assign direct broadcast satellite construction
permit from Advanced Communications Corp. to Tempo DBS, Inc.,
application for modification of direct broadcast satellite
service construction permit; File Nos. DBS-94-11EXT, DBS-94-
15ACP, DBS-94-16MP.
memorandum opinion and order
Adopted: April 26, 1995.
By the Chief, International Bureau.
Released: April 27, 1995.
I. Introduction
1. For more than a decade, Advanced Communications
Corporation (``Advanced'') has had leave to provide the
public with Direct Broadcast Satellite (DBS) service. It has
had allocated to it scarce public resources--orbital
positions and channels--so that it could provide that
service. Advanced paid nothing for these resources. It was
obligated only to proceed with due diligence to provide the
service it promised. After more than a decade, Advanced has
not provided--and is not close to providing--DBS service to
the public. It has failed to meet its due diligence
obligation. Advanced must now return the public resources it
holds to the public so that these resources can be put to use
by others.
2. Advanced has filed an application for a second four-year
extension of time in which to construct, launch, and initiate
service from its DBS system. Advanced has also filed an
application for consent to assign its construction permit to
Tempo DBS, Inc. (Tempo DBS). Finally, Advanced has applied
for authority to modify its construction permit to allow it
to substitute satellites now being constructed for Tempo
Satellite, Inc.\1\ Dominion Video Satellite, Inc. (DVS),
EchoStar Satellite Corporation (EchoStar), DIRECTV, Inc.
(DirecTV), and Directsat Corporation filed objections to
Advanced's applications; Tempo Satellite and Nevada Direct
Broadcasting System (Nevada) filed supporting comments.
Advanced filed replies to the objections.\2\
\1\ Tempo Satellite, Inc. (``Tempo Satellite'') is a
subsidiary of Tele-Communications, Inc. (``TCI''), a cable
operator. authorized to construct, launch, and operate 11 DBS
channels at orbital slots 166 deg. W.L. and 119 deg. W.L. See
Tempo Satellite, Inc., 7 F.C.C. Red 2728 (1992). Tempo DBS,
the proposed assignee, is an affiliate of TCI.
\2\ Several of the pleadings submitted by the parties were
not timely filed or were not authorized under the
Commission's rules. See 47 C.F.R. Sec. 1.45. Such pleadings
shall only be considered as informal requests for Commission
action of informal comments. See 47 C.F.R. Sec. 1.41. The
parties' requests for extension of time are hereby denied.
---------------------------------------------------------------------------
3. Advanced has had over ten years, including one four-year
extension, in which to construct and launch its DBS system.
It has failed to do so. It has thereby failed to meet the
Commission's due diligence rules--imposed a decade ago--to
ensure that the public receives prompt DBS service. In the
meantime, the channels and orbital positions assigned to
Advanced have gone unused. Other DBS licenses have already
begun operations.
4. Only by enforcing the progress requirements of the
Commission's rules can we ensure that allocated resources
will be efficiently and expeditiously put into productive
use. In the past, we have given DBS permittees latitude in
meeting due diligence deadlines in order to ensure the
development of DBS services. As the Commission has previously
stated, however, such latitude is not appropriate in an era
in which DBS licensees are successfully operating and are
competing for subscribers. Accordingly, we deny Advanced's
application for an extension of time and declare its
construction permit null and void. We dismiss, as moot, the
pending assignment and modifications applications.
II. Background
5. In 1984, Advanced applied for authority to construct and
launch a DBS system as part of the second processing round of
DBS applications. The Commission granted the application
subject to the condition that Advanced ``proceed with the
construction of its system with due diligence as defined in
Section 100.19(b) of the Commission's rules.'' 47 C.F.R.
Sec. 100.19(b).\3\ The due diligence requirement has two
components. First, the DBS permittee must begin or complete
contracting for construction of its satellites within one
year of the grant of its construction permit. Second, the
permittee must begin operation of the satellites within six
years of the grant of its construction permit, unless
otherwise determined by the Commission. Section 100.19(b)
provides that a transfer of control of the permit is not a
justification for extension of either of these deadlines.
Orbital positions and channels are not assigned to a DBS
permittee unless and until it demonstrates that it has
fulfilled the first component of the due diligence
requirement. Processing Procedures Regarding the Direct
Broadcast Service, 95 F.C.C. 2d 250, 253 (1983).
\3\ Satellite Syndicated Systems, Inc., 99 F.C.C. 2d 1369
(1984). Advanced's initial grant authorized it to provide
service from two satellites, each to deliver six channels to
half of the continental United States. Advanced subsequently
applied for, and was granted, authority to increase the
number of satellites in its system to five, and was later
granted authority to increase the number of channels to 27.
See Continental Satellite Corporation (``Continental''), 4
F.C.C. Red 6292 (1989).
---------------------------------------------------------------------------
6. In October 1986, the Commission found that Advanced had
complied with the first component of the due diligence
requirement by contracting for the construction of its first
two DBS satellites. Advanced was ultimately assigned to the
100 deg. W.L. orbit location (channels 1-23, 25, 27, 29, 31)
and 148 deg.
[[Page S 14578]]
W.L. (channels 1-17, 19, 21, 23, 25, 27, 29, 31).\4\ In February 1990,
Advanced applied for a four-year extension of time, until
February 1994, in which to construct and operate its DBS
system. The Commission granted this request, extending the
deadline until December 7, 1994.\5\
\4\ Tempo Enterprises, Inc. (``Tempo''), 1 F.C.C. Red 20
(1986).
\5\ Advanced Communications Corp. (``Advanced''), 6 F.C.C.
Red 2269 (1991).
---------------------------------------------------------------------------
7. In August 1994, Advanced applied for another four-year
extension of time, until December 1998, in which to construct
and operate its system.\6\ In September 1994, Advanced filed
an application for consent to assign its construction permit
to Tempo DBS.\7\ In October 1994, Advanced filed an
application to modify its construction permit to change the
technical design of the Advanced satellites to duplicate the
design of satellites then under construction for Tempo
Satellite under a separate DBS authorization.\8\
\6\ Request for Additional Time to Construct and Launch
Direct Broadcast Satellites, DBS-84-01/94-11EXT (August 8,
1994).
\7\ Request for Consent to Assign DBS Authorizations, DBS-94-
15ACP (September 28, 1994).
\8\ Application for Modification of Construction Permit, DBS-
94-16MP (October 14, 1994). In November 1994, Advanced filed
an amendment to this modification request. Amendment of
Application for Modification of Construction Permit, DBS-94-
16MP (November 16, 1994).
---------------------------------------------------------------------------
8. Dominion, EchoStar, and Directsat oppose Advanced's
extension request. They contend that Advanced has not met the
first component of the due diligence requirement because
Advanced's contract with Martin Marietta does not meet due
diligence requirements, delays in construction were not due
to circumstances beyond Advanced's control, and Advanced has
``warehoused'' its authorized frequencies. They argue that
Advanced has no valid construction permit and that Advanced's
applications for assignment and modification should be
declared moot. Directsat and Echostar maintain that Advanced
failed to initiate operation due to business decisions within
its control, that Commission precedent precludes grant of an
extension of time request based on Advanced's failure to
attract investors, and that grant of the extension request
would prejudice permittees who have significantly passed
Advanced in progress toward initiation of DBS service.
Dominion argues that under Commission rules, transfer of
control of an authorization does not warrant grant of a
request for extension of time.\9\
\9\ 47 C.F.R. Sec. 100.19(b) states that ``[t]ransfer of
control of the construction permit shall not be considered to
justify extension of the[ ] deadline[ ].''
---------------------------------------------------------------------------
III. Discussion
Extension request
9. In adopting rules and policies for DBS service, we
determined that a due diligence requirement would ensure that
permittees would go forward expeditiously.\10\ Accordingly.
Section 100.19(b) of the rules for DBS service. 47 C.F.R.
Sec. 100.19(b), states that transfer of control of the
construction permit will not justify extension of due
diligence deadlines. We later noted that ``the rule was
intended to ensure the prompt initiation of DBS service for
the public, and must be enforced where permittees are allowed
to hold spectrum resource for which other applications exist.
. . .'' \11\
\10\ Inquiry into the development of regulatory policy in
regard to Direct Broadcast Satellites for the period
following the 1983 Regional Administrative Radio Conference,
90 F.C.C. 2d 676 (1982).
\11\ CBS, Inc., 99 F.C.C. 2d 565, 572 (1984).
---------------------------------------------------------------------------
10. During the ``pioneering era'' of DBS technology in the
1980's, the Commission granted numerous extensions of due
diligence milestones. The Commission was reluctant to cancel
construction permits where permittees failed to initiate DBS
service ``in accord with a pre-established timetable set
without the benefit of experience.'' \12\ As technology
developed, however, the Commission gave permittees notice
that they could not expect additional extensions. We said in
1988, ``[a]s circumstances have evolved and demand for DBS
facilities may be increasing beyond the available supply of
orbit/channel resource[s], there does now appear [to be] a
need for stricter enforcement of the construction progress
requirements of the DBS rules.'' \13\
\12\ United States Satellite Broadcasting Company, Inc.
(``USSB I''). 3 F.C.C. Rcd 6858, 6860 (1988).
\13\ Id. at 6861.
---------------------------------------------------------------------------
11. In ruling on requests for extensions of time, the
Commission has stated that ``[t]he totality of
circumstances--those efforts made and those not made, the
difficulties encountered and those overcome, the rights of
all parties, and the ultimate goal of service to the public--
must be considered.'' \14\ In granting Advanced's 1990
extension, the Commission relied on the substantial
developments in DBS satellite technology, the Commission's
development of its policy regarding channel and orbital
assignments, and the Challenger and Ariane launch vehicle
failures of the late 1980's.\15\ The Commission warned,
however, that ``continued reliance on experimentation,
technological developments and changed plans will not
necessarily justify an extension of a DBS authorization.'' It
further warned that it would ``closely scrutinize all
requests for extension of time within which permittees must
initiate DBS service.'' \16\
\14\ Id.
\15\ Id. at 6860.
\16\ Id.
---------------------------------------------------------------------------
12. Advanced asserts that a second extension is justified
under the Commission's rules (and is consistent with similar
extensions previously granted) because it has made
``considerable efforts'' to develop DBS service, it has
pursued a joint venture agreement, and any delays have been
due to circumstances beyond its control. Advanced also
implies that the progress Tempo Satellite has made in
constructing its satellites should be attributed to Advanced
and that these efforts constitute a ``proper showing'' on
which to base an extension.
13. Advanced first argues that an extension is warranted in
light of its efforts to reach a joint venture agreement over
a nearly three-year period beginning in 1992, even though
these negotiations ultimately failed.\17\ The Commission has
previously found that on-going negotiations do not justify an
extension of due diligence milestones.\8\ Failed negotiations
surely should fare no better. In denying an extension to
another DBS permittee, we held that failure to attract
investors, an uncertain business situation, or an unfavorable
business climate in general have never been adequate excuses
for failure [to] meet a construction timetable in other
satellite services.\19\
\17\ In progress reports to the Commission, Advanced said, in
April 1992, that it expected negotiations to be completed in
``the next month or two.'' In August 1992, Advanced reported
it has signed a letter of intent that called for execution of
an agreement within sixty days. In October 1992, Advanced
explained that negotiations were continuing, and in April
1993, stated it expected to reach an agreement within the
next month. In May 1993, it reported it was still in
``complex negotiations,'' and in October 1993, it claimed
that negotiations were continuing. However, on December 30,
1994, Advanced indicated that negotiations had failed.
\18\ USSB I, 3 F.C.C. Rcd at 6859. See also Report and Order
in CC Docket No. 81-704, 54 R.R. 2d 577, 597 n. 62 (1983).
\19\ id.
---------------------------------------------------------------------------
14. Advanced also asserts that construction was delayed
because it needed to modify its system design. In granting
Advanced's first extension request. however, the Commission
advised Advanced that its decision to modify it technical
proposal was a business decision wholly within its control
that would not generally excuse its failure to meet the due
diligence requirements, To conclude otherwise would allow
permittees to ``extend indefinitely their nonperformance by
repeated modifications of their proposals.''\20\ DBS
technology has evolved to the point where permittees can made
design decisions and proceed with construction with relative
assurance that their system will be technologically
competitive when it is launched. In fact, two permittees have
launched DBS systems, which are both already providing
service.\21\ Advanced has not explained why it did not make
similar design decisions for its system, or why such
decisions were not wholly within its control. Accordingly, we
do not find that continued modifications to Advanced's system
warrant an extension of time.
\20\ Tempo, 1 F.C.C. Rcd at 20.
\21\ See, e.g., Semi--Annual DBS Progress Report filed by
Hughes Communications Galaxy, Inc., DBS- 84-02/81-07/93-03MP
(January 24, 1995).
---------------------------------------------------------------------------
15. Advanced contends that an extension is justified
because the company has expended considered funds and
``countless hours'' to implement its system. Advanced asserts
that the Commission has granted extension under similar
circumstances, citing United States Satellite Broadcasting
Company, Inc.\22\ In that case, the Video Services Division
of the Mass Media Bureau, in considering the ``totality of
the circumstances,'' found that the permittee, USSB, (1) has
expended $23 million, including a substantial payment towards
spacecraft construction; (2) had demonstrated that the
remaining financing for the completion and launch of the
satellite had been arranged; and (3) had executed launch and
various supplier contracts. Advanced, in contrast, has not
specified how much money it has spent.\23\ has not arranged
financing, and has not procured a launch contract. Advanced
has failed to show its progress constitutes sufficient
justification for a further extension of time. To the
contrary, it appears that Advanced wants to abandon its
business to Tempo DBS.
\22\ United States Satellite Broadcasting Company, Inc.
(``USSB II''), 7 F.C.C. Rcd 7247, 7250 (1992).
\23\ Advanced acknowledges that its expenditures on the
construction contract with Martin Marietta Astrospace are
less than one percent. Semi-Annual Status Report, DBS 84-01-
88-05 MP and 84-01/88-05 Ext. (May 10, 1993). Subsequent
reports do not include payment amounts or percentages. See
Semi-Annual Status Reports, DBS 84-01-88-05 MP and 84-01/88-
05 Ext. (October 6, 1993 and April 24, 1994).
---------------------------------------------------------------------------
16. Advanced further states that it should be granted an
extension because it has ``remained in due diligence'' sine
we found it had met the first component of the due diligence
requirement by executing a construction contract. The facts
belie this conclusory assertion. The due diligence
requirement consists of two components. The fact that
Advanced continues to have a binding construction contract,
or that it has made all payments required by this contract
does not excuse its failure to meet the second part of its
due diligence requirement: operation of its direct broadcast
satellite system.\24\ Meeting the first due diligence
requirement does not justify failing to fulfill the second.
\24\ USSB II at 7250. To the extent Advanced relies on its
contract with Tempo Satellite and TCI (pursuant to Advanced's
application to assign its construction permit) in arguing
that it is still in due diligence, we point out that this
contract underscores Advanced's lack of commitment to
establish its direct broadcast satellite system. The
assignment application indicates that Tempo Satellite has
arranged financing, executed contracts for satellite launch
and construction and for DBS receiving equipment, and has
spent $246 million on satellite construction. Advanced's sole
contribution to Tempo Satellite's system appears to be its
construction permit. For these reasons and the reasons stated
at paragraph 18, infra, we find that Advanced's latest
contract does not demonstrate a capability and commitment on
its part to operate a DBS system.
[[Page S 14579]]
17. Advanced also asserts that the Commission's formulation
of its channel assignment policy \25\ and the delay in
granting previous modification requests constitute
circumstances beyond its control and warrants an extension of
time. However, the channel assignment policy was clarified in
1989.\26\ Advanced's proposed modifications to its orbit
locations and channel assignments were granted in 1991.\27\
Advanced has not cited any circumstances that impeded its
ability to construct its system over the last four years.
Advanced has failed to show that delay in meeting the second
component of due diligence is due to circumstances beyond its
control.
\25\ Continental, 4 F.C.C. Red at 6296-7 (1989).
\26\ Id. at 6301.
\27\ Advanced, 6 F.C.C. Red at 2274.
---------------------------------------------------------------------------
18. Finally, Advanced asserts that an extension of its
construction permit would be in the public interest, since it
is on the threshold of an advanced DBS system which will
benefit the public, and because doing so will promote the
efforts of those who have worked to create the DBS industry.
To do otherwise, Advanced argues, would discourage innovators
in all new technological industries.
19. A further extension would not serve the public
interest. Advanced has made little progress in construction,
launch, and initiation of a DBS system in the past decade.
During the same period, two DBS satellites have been launched
and construction of others is underway.\28\ There is no
benefit to the public in allowing Advanced to continue to
waste orbital locations and channels while two permittees
have already initiated DBS service.
\28\ See note 21, supra.
---------------------------------------------------------------------------
20. Advanced's current authorization required it to begin
operation of a satellite by December 7, 1994.\29\ If failed
to do so. The ``totality of the circumstances'' presented by
Advanced in its extension request does not justify granting
additional time in which to begin operation. Accordingly, we
deny Advanced's request for an extension of time to
construct, launch, and operate a direct broadcast satellite
system. Because Advanced has failed to satisfy this express
condition of its construction permit, the permit is null and
void by its own terms.
\29\ Advanced, 6 F.C.C. Rcd at 2274
---------------------------------------------------------------------------
B. Other applications
21. Inasmuch as we have concluded that Advanced's permit is
null and void, its pending applications for assignment of
that permit to Tempo DBS and related modification application
are moot and are accordingly dismissed.\30\ To the extent
Advanced suggests that construction progress on Tempo
Satellite's DBS satellites should be considered favorably in
evaluating Advanced's extension request, we disagree.\31\ The
Commission has based previous extensions of time on a finding
that the efforts made by the permittee ``reveal[] no lack of
capability or commitment'' to establish its DBS system.\32\
Tempo Satellite's construction progress is irrelevant in
determining whether Advanced should be granted an extension
of time in which to construct and operate Advanced's
satellites.\33\ Moreover, we believe it would contravene the
public interest to consider Tempo Satellite's construction-
progress in assessing Advanced's extension request. To do so
would reward permittees' inaction or failure to comply with
implementation milestones. Such warehousing precludes the use
of channel and orbital assignments by other service
providers, and will ultimately result in delays in service to
the public.
\30\ To the extent the pleadings address Advanced's
applications for assignment and for modification of its
construction permit, such pleadings are likewise moot and
will not be considered.
\31\ Under Advanced's proposal to assign its construction
permit to Tempo DBS, the satellites deployed under Advanced's
permit would be those now under construction for Tempo
Satellite, Inc., a DBS permittee. Application for
Modification of Construction Permit, DBS-94-16MP (October 14,
1994).
\32\ USSB II at 7250.
\33\ Advanced refers to the Commission's recent decision in
Directsat Corp., 10 F.C.C. Rcd 88 (1995), as support for
approval of the assignment of its construction permit to
Tempo DBS. In that case, the Commission approved the transfer
of control of DBS permittee Directsat Corporation from SSE
Telecom, Inc. to Echo/Comms. Unlike the circumstances here,
Directsat's ``investment in the development of its DBS system
has been substantial and the progress set fort in its semi-
annual reports has been steady and consistent with the
schedule established in its construction contract.'' Id. at
para 4. Consequently, the Commission concluded that the
public interest in the expeditious provision of DBS service
to the public would be advanced by this sale.
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22. In its opposition to Advanced's petition for extension
of time, DBSC requests that some of Advanced's cancelled
channels be assigned to DBSC. DBSC's request was not made
within any designated filing period for modification
applications, and is hereby rejected. We will soon issue a
notice regarding the reallocation of cancelled channels and
available orbital positions.
V. Ordering Clauses
23. Accordingly, it is ordered, pursuant to Section 0.261
of the Communications Act of 1934, as amended, 47 U.S.C.
Sec. 0.261, that the Application File No. DBS-94-11-EXT IS
DENIED and the construction permit issued to Advanced
Communications Corporation in Satellite Syndicated Systems,
99 F.C.C. 2d 1369 (1984) is declared null and void.
24. It is further ordered, that Application File Nos. DBS-
94-15ACP and DBS-94-16MP are dismissed as moot.
Scott Blake Harris,
Chief, International Bureau.
____
[FCC 82-285]
Before the Federal Communications Commission, Washington, DC 20554
In the Matter of Inquiry into the development of regulatory
policy in regard to direct broadcast satellites for the
period following the 1983 Regional Administrative Radio
Conference; Gen. Docket No. 80-603.
report and order
Adopted: June 23, 1982; Released: July 14, 1982.
By the Commission: Commissioners Fowler, Chairman; Fogarty
and Rivera issuing separate statements; Commissioner Quello
concurring and issuing a statement.
I. Introduction
1. On June 1, 1981, the Commission issued a Notice of
Proposed Policy Statement and Rulemaking (Notice), 86 FCC 2d
719, to consider proposed policies and rules to govern the
authorization of direct broadcast satellite (DBS) service.
* * * * *
However, we believe that the provision of HDTV service
should not exclude conventional television service. We note
that only one of the DBS applicants, CBS, proposes to
broadcast HDTV exclusively. We believe that any transition to
HDTV would deprive the public of the use of the band for
conventional television transmission. Moreover, HDTV
presently requires considerably more bandwidth than
conventional television signals, and therefore it reduces the
number of channels that can be provided within a given amount
of spectrum. Our present proposal would permit the band to be
used either/for HDTV or for conventional television signals,
as spectrum allocation permits and the market dictates. We
believe this approach serves the public interest better than
reserving the band exclusively for either service.
Licensing and Procedural Requirements
111. The licensing and procedural policies and requirements
we are adopting are, with few exceptions, those that were set
forth in the Notice. In particular, applicants will be
required to conform to the technical guidelines specified in
the WARC-77 Final Acts. Furthermore, all interim
authorizations will be subject to modification, as the
Commission deems necessary, in order to comport with
determinations made at RARC-83 and any other policies and
rules which the Commission may hereafter conclude are
necessary or appropriate in the public interest. Deviations
from the guidelines of the WARC-77 or from the outcome of
RARC-83 may be permitted with Commission approval provided
they do not cause interference to operational or Commission
approval provided they do not cause interference to
operational or planned systems of other administrations in
excess of that specified in the Final Acts of the WARC-77 or
RARC-83.
112. Applicants may request specific frequencies and
orbital positions. However, frequencies and orbital positions
will not be assigned until completion of the 1983 RARC. We
note that the number of frequencies, the orbital locations,
and the size of the service areas specified in the
applications we have received to date have varied
considerably. While we intend to take each applicant's
request fully into account, the Commission may, in acting on
a particular application, restrict the number of channels
assigned to any applicant, limit or modify the area to be
served, or impose any other conditions it deems necessary.
113. The Commission will continue to accept applications
for DBS systems. In addition, the Commission intends in the
very near future to establish a second cut-off list for
applications.\99\ In view of the number of applications that
have been accepted to date and the number of potential
applications that may be filed, future applicants are
requested to indicate whether or not they would be willing to
operate their systems for non-eclipse-protected orbital
positions.
\99\A number of the interim DBS applications filed in
response to the first cut-off date were found unacceptable
for filing. Some of these applications were subsequently
amended and may now be acceptable for filing.
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114. In lieu of stringent financial showings and subsequent
Commission analysis, we will require that parties granted
authorizations proceed with diligence in constructing interim
DBS systems. Interim DBS systems will be required to begin
construction or complete contracting for construction of the
satellite station within one year of the grant of the
construction permit. The satellite station will also be
required to be in operation within six years of the
construction permit grant, unless otherwise determined by the
Commission upon proper showing in any particular case.
Transfer of control of the construction permit will not be
considered to justify extension of these deadlines. We
believe that a diligence requirement will provide a more
orderly processing of applications and assure that those
applicants that are granted construction permits go forward
expeditiously.
115. Each application for an interim DBS system shall
include a showing describing
[[Page S 14580]]
the type of service that will be provided, the technology that will be
employed, and all other pertinent information. The
application may be presented in narrative format.\100\ Each
application for an interim DBS system shall be placed on
public notice for 45 days, during which time interested
parties may file comments and petitions related to the
application. A 45 day cut-off period shall also be
established for the filing of applications to be considered
in conjunction with the original application. Additional
applications filed before the cut-off date shall be
considered to have equal priority with the original
application and shall be considered together in the
assignment of frequencies and orbital positions. If
applications have included requests for particular
frequencies or orbital positions, the cut-off date shall be
considered in establishing the priority of such requests. All
frequencies and orbital positions, however, shall generally
be considered to be of equal value, and conflicting requests
for frequencies and orbital positions will not necessarily
give rise to comparative hearing rights as long as unassigned
frequencies and orbital slots remain. Each application for an
interim DBS system, after the public comment period and staff
review, shall be acted upon by the Commission to determine if
authorization of the system is in the public interest.
\100\ The Commission will carefully review each DBS
application for completeness. Accordingly, all applicants
should be sure that their applications contain a complete and
detailed technical showing and that the service to be
provided is adequately described. (See also Memorandum
Opinion and Order, FCC 81-500, and Memorandum Opinion and
Order, FCC 82-92.)
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116. All authorizations for interim DBS systems shall be
granted for a period of five years. All licensee shall be
subject to the policies set forth in this Report and Order
and with any policies and rules the Commission may adopt at a
later date. It is the intention of the Commission, however,
that in most circumstances the regulatory policies in force
at the time of authorization to construct a satellite shall
remain in force for that satellite throughout its operating
lifetime.
VIII. Ordering Clauses
117. Pursuant to Section 4(i) and 303 of the Communications
Act of 1934, as amended, 47 U.S.C. Sections 4(i) and 303, it
is ordered, That:
(a) Parts 2 and 94 of Chapter I of Title 47 of the Code of
Federal Regulations are amended as set forth in Appendix C,
effective thirty days after publication in the Federal
Register.
(b) Chapter I of Title 47 of the Code of Federal
Regulations is amended to include a new Part 100 as set forth
in Appendix D, effective thirty days after publication in the
Federal Register.
(c) The Petition for Expedited Relief submitted by the
Aerospace and Flight Test Radio Coordinating Committee on
August 12, 1981 is granted to the extent indicated above and
is otherwise denied.
William J. Tricarico,
Secretary.
Appendices A and B--may be seen in FCC's Dockets Branch.
appendix c
Parts 2, and 94 of Chapter I of Title 47 of the Code of
Federal Regulations are amended as follows:
A. Part 2--Frequency Allocations and Radio Treaty Matters;
General Rules and Regulations.
1. Section 2.106 is amended by revising the ``Service''
column of the frequency bands listed below and by adding new
Footnotes NG139 and NG140 in proper numerical order to read
as follows:
Sec. 2.106 Table of Frequency Allocations
* * * * *
------------------------------------------------------------------------
United States Federal Communications
------------------------------ Commission
----------------------------
Band (GHz) Allocation Band (GHz) Class of
Service Station
------------------------------------------------------------------------
5............ 6 7 8 9
------------------------------------------------------------------------
* * * * *
(b) The measurements of emission power can be expressed in
peak or average values provided they are expressed in the
same parameters as the transmitter power.
(c) When an emission outside of the authorized bandwidth
causes harmful interference, the Commission may, at its
discretion, require greater attenuation than specified in
this section.
(d) The following minimum spectrum analyzer resolution
bandwidth settings will be used: 300 Hz when showing
compliance with paragraphs (a)(1)(i) and (a)(2)(i) of this
section; and 30 kHz when showing compliance with paragraphs
(a)(1)(ii) and (a)(2)(ii) of this section.
Sec. 24.134 Co-channel separation criteria.
The minimum co-channel separation distance between base
stations in different service areas is 113 kilometers (70
miles). A co-channel separation distance is not required for
the base stations of the same licensee or when the affected
parties have agreed to other co-channel separation distances.
Sec. 24.135 Frequency stability.
(a) The frequency stability of the transmitter shall be
maintained within 0.0001 percent ( 1
ppm) of the center frequency over a temperature variation of
-30 Celsius to +50 Celsius at normal supply voltage, and over
a variation in the primary supply voltage of 85 percent to
115 per cent of the rated supply voltage at a temperature of
20 Celsius.
(b) For battery operated equipment, the equipment tests
shall be performed using a new battery without any further
requirement to vary supply voltage.
(c) It is acceptable for a transmitter to meet this
frequency stability requirement over a narrower temperature
range provided the transmitter ceases to function before it
exceeds these frequency stability limits.
subpart e--broadband pcs
Source: 59 FR 32854, June 24, 1994, unless otherwise noted.
Sec. 24.200 Scope.
This subpart sets out the regulations governing the
licensing and operations of personal communications services
authorized in the 1850-1910 and 1930-1990 MHz bands.
Sec. 24.202 Service areas
Broadband PCS service areas are Major Trading Areas (MTAs)
and Basic Trading Areas (BTAs) as defined below. MTAs and
BTAs are based on the Rand McNally 1992 Commercial Atlas &
Marketing Guide, 123rd Edition, at pages 38-39 (``BTA/MTA
Map''). Rand McNally organizes the 50 states and the District
of Columbia into 47 MTAs and 487 BTAs. The BTA/MTA Map is
available for public inspection as the Office of Engineering
and Technology's Technical Information Center, room 7317,
2025 M Street, NW., Washington, DC.
(a) The MTA service areas are based on the Rand McNally
1992 Commercial Atlas & Marketing Guide, 123rd Edition, at
pages 38-39, with the following exceptions and additions:
(1) Alaska is separated from the Seattle MTA and is
licensed separately.
(2) Guam and the Northern Mariana Islands are licensed as a
single MTA-like area.
(3) Puerto Rico and the United States Virgin Islands are
licensed as a single MTA-like area.
(4) American Samoa is licensed as a single MTA-like area.
(b) The BTA service areas are based on the Rand McNally
1992 Commercial Atlas & Marketing Guide, 123rd Edition, at
pages 38-39, with the following additions licensed separately
as BTA-like areas: American Samoa; Guam; Northern Mariana
Islands; Mayaguez/Aguadilla-Ponce, Puerto Rico; San Juan,
Puerto Rico; and the United States Virgin Islands. The
Mayaguez/Aguadilla-Ponce BTA-like service area consists of
the following municipios: Adjuntas, Aguada, Agudilla, Anasco,
Arroyo, Cabo Rojo, Coamo, Guanica, Guayama, Guayanilla,
Hormigueros, Isabela, Jayuya, Juana Diaz, Lajas, Las Marias,
Mayaguez, Maricao, Maunabo, Moca, Patillas, Peuelas, Ponce,
Quebradillas, Rincon, Sabana Grande, Salinas, San German,
Santa Isabel, Villalba, and Yauco. The San Juan BTA-like
service area consists of all other municipios in Puerto Rico.
Sec. 24.203 Construction requirements.
(a) Licensees of 30 MHz blocks must serve with a signal
level sufficient to provide adequate service to at least one-
third of the population in their licensed area within five
years of being licensed and two-thirds of the population in
their licensed area within 10 years of being licensed.
Licensees may choose to define population using the 1990
census or the 2000 census. Failure by any licensee to meet
these requirements will result in forfeiture or non-renewal
of the license and the licensee will be ineligible to regain
it.
(b) Licensees of 10 MHz blocks must serve with a signal
level sufficient to provide adequate service to at least one-
quarter of the population in their licensed area within five
years of being licensed, or make a showing of substantial
service in their licensed area within five years of being
licensed. Population is defined as the 1990 population
census. Licensees may elect to use the 2000 population census
to determine the five-year construction requirement. Failure
by any licensee to meet these requirements will result in
forfeiture of the license and the licensee will be ineligible
to regain it.
(c) Licensees must file maps and other supporting documents
showing compliance with the respective construction
requirements within the appropriate five- and ten-year
benchmarks of the date of their initial licenses.
Sec. 24.204 Cellular eligibility.
(a) 10 MHz Limitation. Until January 1, 2000, no license(s)
for broadband PCS in excess of 10 MHz shall be granted to any
party (including all parties under common control) if the
grant of such license(s) will result in significant overlap
of the PCS licensed service area(s) (MTAs or BTAs) and the
cellular geographic service area(s) (CGSA) of licensee(s) in
the Domestic Public Cellular Radio Telecommunications Service
directly or indirectly owned, operated, or controlled by the
same party.
(b) 15 MHz Limitation. After January 1, 2000, no license(s)
for broadband PCS in excess of 15 MHz shall be granted to any
party (including all parties under common control) if the
grant of such license(s) will result in significant overlap
of the PCS licensed service area(s) (MTAs or BTAs) and the
cellular geographic service area(s) (CGSA) of licensee(s) in
the Domestic Public Cellular Radio Telecommunications Service
directly or indirectly owned, operated, or controlled by the
same party.
(c) Significant Overlap. For purposes of paragraphs (a) and
(b) of this section, significant overlap of a PCS licensed
service area and CGSA(s) occurs when ten or more percent of
the population of the PCS service area, as determined by the
1990 census figures for the counties contained therein, is
within the CGSA(s).
[[Page S 14581]]
(d) Ownership Attribution. (1) For purposes of paragraphs
(a) and (b) of this section, ``control'' means majority
voting equity ownership, any general partnership interest, or
any means of actual working control (including negative
control) over the operation of the licensee, in whatever
manner exercised.
(2) For purposes of applying paragraphs (a) and (b) of this
section, and for purposes of Sec. 24.229(c) (40 MHz limit in
same geographic area), ownership and other interests in
broadband PCS licensees or applicants and cellular licensees
will be attributed to their holders pursuant to the following
criteria:
(i) Partnership and other ownership interests and any stock
interest amounting to 5 percent or more of the equity, or
outstanding stock, or outstanding voting stock of a broadband
PCS licensee or applicant will be attributable.
(ii) Partnership and other ownership interests and any
stock interest amounting to 20 percent of more of the equity,
or outstanding stock, or outstanding voting stock of a
cellular licensee will be attributable, except that ownership
will not be attributed unless the partnership and other
ownership interests and any stock interest amount to 40
percent or more of the equity, or outstanding stock, or
outstanding voting stock.
* * * * *
____
[FCC 94-144]
Before the Federal Communications Commission, Washington, DC 20554
In the Matter of Amendment of the Commission's rules to
establish new personal communications services; Gen Docket
No. 90-314; RM-7140, RM-7175, RM-7618.
MEMORANDUM OPINION AND ORDER
Adopted: June 9, 1994.
By the Commission: Commissioners Quello, Barrett, Ness, and
Chong issuing separate statements.
Released: June 13, 1994.
* * * * *
V. Construction requirements
147. In the Second Report and Order, we stated our
expectations that broadband PCS would be a highly competitive
industry and that licensees would have the incentive to
construct facilities to meet the demand for service in their
licensed areas. We concluded that specific channel loading
requirements are unnecessary; however, we required licensees
to meet specified construction benchmarks to ensure efficient
spectrum utilization and service to the public. Specifically,
we required licensees to offer service to one-third of the
population in their service area within five years of
licensing, two-thirds of the population in their service area
within seven years, and 90 percent of the population within
ten years. We stated that failure to meet these requirements
would result in forfeiture of the license and the licensee
would be ineligible to regain it.\227\
\227\ See Second Report and Order at para.para. 132-134.
* * * * *
---------------------------------------------------------------------------
PacBell opposes Sprint's suggestion that cellular carriers be
permitted to include their existing coverage in meeting PCS
coverage requirements.243
\243\ See PacBell Comments at 8.
---------------------------------------------------------------------------
153. MCI asserts that some relaxation of the construction
requirements is necessary if base and mobile power limits are
not substantially increased.244 US West opposes the 90
percent construction requirement, asserting that 90 percent
coverage will increase the cost of PCS fourfold compared to a
67 percent population coverage requirement. It states that a
stringent construction requirement is not necessary to
prevent warehousing of spectrum because the spectrum will be
purchased at auction. As part of its filing, US West submits
an analysis of nine large western BTAs that indicates that
increasing population coverage from 67 to 75 percent results
in only a moderate increase in the geographic area that must
be served. On the other hand, increasing population from 75
to 90 percent results in a very large increase in the
geographic area that must be covered.245
\244\ See MCI Comments at 17.
\245\ See US West Reply at 7-9.
---------------------------------------------------------------------------
154. Decision. We believe that PCS will be a highly
competitive service and that licensees will have incentives
to construct facilities to meet the service demands in their
licensed service areas. Further, we believe that our use of
competitive bidding for PCS licensing and the restrictions on
the amount of spectrum that a licensee may control in a
geographic area will limit the likelihood that spectrum will
be warehoused. Nevertheless, we continue to believe that
minimum construction requirements are necessary to ensure
that PCS service is made available to as many communities as
possible and that the spectrum is used effectively. We note
that the Reconciliation Act amendments require the Commission
to impose performance requirements.246 While we agree
with GCI, NYNEX, and others that construction requirements
are needed to ensure service in a timely fashion, we also
agree that relaxation of the requirements is desirable to
ensure an economical deployment of the service to promote
opportunities for PCS ``niche'' services, and to facilitate a
competitive market.247
\246\ See 47 U.S.C. Sec. 309(i)(4)(B), as amended by the
Reconciliation Act.
\247\ See Comments at 13; NYNEX Comments at 8-9.
---------------------------------------------------------------------------
155. Accordingly, we are amending the construction
requirements as follows. All 30 MHz broadband PCS licensees
will be required to construct facilities that provide
coverage to one-third of the population of their service area
within five years of initial license grant and to two-thirds
of the population of their service area within ten years. We
will require the 10 MHz licensees to meet a single
construction requirement of providing coverage to one-fourth
of the population of their service area within five years; or
alternatively, they may submit an acceptable showing to the
Commission demonstrating that they are providing substantial
service. We recognize that these requirements are less than
the requirement for narrowband PCS licensees, but we believe
this difference is appropriate given the higher expected
construction costs involved for broadband PCS.248
Moreover, since licensees must purchase their licenses, they
will have added economic incentives to construct their
systems as rapidly as possible and introduce service to a
significant percentage of the population. In this regard, we
also believe that these relaxed construction requirements may
increase the viability and value of some broadband licenses,
especially those in less densely populated service areas.
Finally, since most areas are already served by cellular and
SMR providers, we believe it unnecessary to require PCS
licensees to provide identical or similar services to areas
where it is uneconomic to do so. With regard to the 10 MHz
licensees, we believe that the reduced construction
requirement will make these licenses more attractive to
applicants intending to provide residential, cutting-edge
niche services or services to business and educational
campuses where the population may be small except during
business or school hours.
\248\ The construction requirements for narrowband PCS are
set forth in Memorandum Opinion and Order, GEN Docket No. 90-
314 and ET Docket No. 92-100, 9 FCC Rcd 1309, 1313-1314,
para.para.27-34 (1994), recon. pending.
---------------------------------------------------------------------------
156. At the five-year benchmark we will require all
licensees, and again at the 10-year benchmark for 30 MHz
licensees, to file a map and other supporting documentation
showing compliance with the construction requirements.
Licensees failing to meet the population coverage
requirements described above will be subject to the license
forfeiture penalties adopted in the Second Report and
Order.\249\ We recognize that even with these requirements,
factors such as incumbent microwave operation or sparse
population density in some instances could make compliance
difficult. In instances where the circumstances are unique
and the public interest would be served, the Commission will
consider waiving the requirements on a case-by-case
basis.\250\ These revised construction requirements will
ensure efficient spectrum utilization and promote significant
nationwide coverage without imposing substantial cost
penalties on licensees that serve less densely populated
areas. In this regard, we believe that these changes
generally address the concerns of those parties that
suggested lowering the construction requirements for
designated entities or for BTA service areas.\251\
\249\ See Second Report and Order at para.para. 133-134.
\250\ See WAIT Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969).
\251\ We will also allow the licensee to use, if they choose
to do so, the 2000 census to determine the 10-year
construction requirement, rather than the 1990 census
specified in the Second Report and Order. This change ensures
that licensees will not be required to meet benchmarks based
on obsolete data.
---------------------------------------------------------------------------
157. We also recognize the desirability of encouraging more
than one provider to serve a diverse geographic area, and
note that resale of a licensee's geographic area to other
entities, subject to the licensee's control, is not
prohibited by our rules. Accordingly, we recognize that
licensees may resell spectrum, and believe that this will
facilitate the deployment of PCS. Whether or not the licensee
enters into resale arrangements, it will be responsible for
insuring that the coverage requirement and all the other
requirements of our rules are met. The reseller will not be a
separate licensee, but rather, will operate subject to the
control of the licensee. We believe that resale will
encourage service provision, particularly to rural areas, and
allow smaller, predominantly rural companies to participate
in PCS. We intend to examine in another proceeding whether
resale arrangements confer attributable interests on the
reseller. See Section IV, supra.
158. In summary, our relaxed construction requirements will
foster provision of PCS services and will promote diversity
in their provision. Permitting licensees to resell service
subareas, subject to the licensee's control, will permit
smaller, rural companies to provide PCS without participating
in the competitive bidding process. Finally, we intend to
monitor closely the development of PCS in rural and other
under-served areas and, if necessary, will readdress these
construction requirements to ensure that our goals for wide
area service are met.
VI. Technical Standards
A. Roaming and interoperability standards
159. In the Second Report and Order, the Commission
provided maximum flexibility in technical standards to allow
PCS to develop in the most rapid, economically feasible and
diverse manner. Specific technical standards were prescribed
only to the extent necessary to avoid harmful interference.
The Commission recognized that several industry
[[Page S 14582]]
technical and standards groups were addressing matters related to PCS
technical standards. It encouraged those groups to consider
ways of ensuring that PCS users, service providers, and
equipment manufacturers could incorporate roaming,
interoperability and other important features in the most
efficient and least costly manner, noting that PCS will be
more useful to the extent that users are not limited by
geography or by their ability to use their equipment with
different systems.
160. Petitioners' Requests. NCS, Motorola, and TIA request
that we reconsider our decision not to adopt PCS
interoperability requirements.\252\ NCS requests that we
adopt standards to ensure interoperability and nationwide
roaming.
\252\ Texas Emergency also requests that we adopt a uniform
standard for enhanced emergency 911 services. These matters
are addressed in Section VI.E.
* * * * *
---------------------------------------------------------------------------
(a) The MTA service areas are based on the Rand McNally
1992 Commercial Atlas & Marketing Guide, 123rd Edition, at
pages 38-39, with the following exceptions and additions:
(1) Alaska is separated from the Seattle MTA and is
licensed separately.
(2) Guam and the Northern Mariana Islands are licensed as a
single MTA-like area.
(3) Puerto Rico and the United States Virgin Islands are
licensed as a single MTA-like area.
(4) American Samoa is licensed as a single MTA-like area.
(b) The BTA service areas are based on the Rand McNally
1992 Commercial Atlas & Marketing Guide, 123rd Edition, at
pages 38-39, with the following additions licensed separately
as BTA-like areas: American Samoa; Guam; Northern Mariana
Islands; Mayaguez/Aguadilla-Ponce Puerto Rico; San Juan,
Puerto Rico; and the United States Virgin Islands. The
Mayaguez/Aguadilla-Ponce BTA-like service area consists of
the following municipios: Adjuntas, Aguada, Aguadilla,
Anasco, Arroyo, Cabo Rojo, Coamo, Guanica, Guayama,
Guayanilla, Hormigueros, Isabela, Jayuya, Juana Diaz, Lajas,
Las Marias, Maricao, Maunabo, Mayaguez, Moca, Patillas,
Penuelas, Ponce, Quebradillas, Rincon, Sabana Grande,
Salinas, San German, Santa Isabel, Villalba, and Yauco. The
San Juan BTA-like service area consists of all other
municipios in Puerto Rico.
Sec. 24.203 Construction requirements.
(a) Licensees of 30 MHz blocks must serve with a signal
level sufficient to provide adequate service to at least one-
third of the population in their licensed area within five
years of being licensed and two-thirds of the population in
their licensed area within 10 years of being licensed.
Licensees may choose to define population using the 1990
census or the 2000 census. Failure by any licensee to meet
these requirements will result in forfeiture or non-renewal
of the license and the licensee will be ineligible to regain
it.
(b) Licensees of 10 MHz blocks must serve with a signal
level sufficient to provide adequate service to at least one-
quarter of the population in their licensed area within five
years of being licensed, or make a showing of substantial
service in their licensed area within five years of being
licensed. Population is defined as the 1990 population
census. Licensees may elect to use the 2000 population census
to determine the five-year construction requirement. Failure
by any licensee to meet these requirements will result in
forfeiture of the license and the licensee will be ineligible
to regain it.
(c) Licensees must file maps and other supportive documents
showing compliance with the respective construction
requirements within the appropriate five- and ten-year
benchmarks of the date of their initial licenses.
Sec. 24.204 Cellular eligibility.
(a) 10 MHz Limitation. Until January 1, 2000, no license(s)
for broadband PCS in excess of 10 MHz shall be granted to any
party (including all parties under common control) if the
grant of such license(s) will result in significant overlap
of the PCS licensed service area(s) (MTAs or BTAs) and the
cellular geographic service area(s) (CGSA) of licensee(s) in
the Domestic Public Cellular Radio Telecommunications Service
directly or indirectly owned, operated, or controlled by the
same party.
____
Federal Communications Commission
[8 FCC Rcd 3204; 1993 FCC LEXIS 2397]
In the Matter of the Authorization of Cable TV Services,
Inc., For Multichannel Multipoint Distribution Service
station WHT578 on the F-group channels at Deadhorse, Alaska;
File No. 2506-CM-P-83.
Release-number: DA 93-524.
May 14, 1993 Released; Adopted May 5, 1993.
Action: [*1] Order on reconsideration.
Judges: By the Chief, Domestic Facilities Division.
Opinion by: Keegan.
opinion
1. Introduction. After the cancellation by the Domestic
Facilities Division (Division) on delegated authority of its
authorization to construct and operate Multichannel
Multipoint Distribution Service (MMDS) station WHT578 on the
F-group channels at Deadhorse, Alaska, Cable TV Services,
Inc. (Cable) requested reinstatement of its authorization.
2. Background. Although acknowledging that it had failed to
complete construction by the deadline, Cable states, on
reconsideration, that its authorization should be reinstated
because it lost its financing and was unable to obtain
substitute financing prior to the expiration of its
construction period. Approximately six weeks after the
construction expiration date, Cable filed an extension
application. Cable justifies the late filing of its extension
application because it was still searching for financing and
it had orally advised Commission staff of its financing
problems. Cable also argues that its authorization should be
reinstated because, with the exception of video programming
currently provided by satellite, no one but Cable would
provide multichannel [*2] video programming to the residents
of Deadhorse.
3. Discussion. Section 319(b) of the Communications Act of
1934, as amended, ``provides that a construction
authorization will be automatically forfeited if the station
is not ready for operation within the time specified in the
construction authorization, or such further time as the
Commission may allow, unless prevented by causes not under
the control of the grantee.'' Miami MDS Co. and Boston MDS
Co., 7 FCC Rcd 4347, 8347, 4348 (1992). The expiration date
of Cable's construction authorization appeared on the face of
the authorization. The authorization also contained the
following express provision: ``This permit shall be
automatically forfeited if the facilities authorized herein
are not ready for operation within the term of this permit. .
. .'' At the time, this automatic forfeiture provision was
specifically embodied in Section 21.44 of the Commission's
Rules. n1 Vidcom Marketing, Inc., 6 FCC Rcd 1945 n.3 (Dom.
Fac. Div. 1991).
``Carriers who fail promptly to construct facilities
preclude other applicants who are willing, ready, and able to
construct from access to limited and valuable spectrum. This
has the effect of delaying, [*3] or even denying, service to
the public. Revision of Part 21 of the Commission's Rules, 2
FCC Rcd 5713 (1987).'' Miami MDS Co. and Boston MDS Co., 7
FCC Rcd 4347, 4349 (1992). Cable's loss of financing and
failure to obtain new financing did not toll its construction
deadline. Cable's construction authorization was
automatically forfeited pursuant to Section 319 of the
Communication's Act, 47 C.F.R. Sec. 21.44 and the terms of
the authorization. Cable's lack of financing fails to justify
reinstatement of its authorization. Cable asserted in its
initial application that it was financially qualified under
47 C.F.R. Sec. 21.17. Thus, it is the applicant's independent
business judgment that it is financially qualified.
Therefore, an independent business judgment to delay
construction for financial reasons would not be a cause
beyond the applicant's control, justifying an extension of
time to construct an MMDS station. See W. Lee Simmons, Inc.,
2 FCC Rcd 4290 (1987) (extension applicant's business
decision not to construct was within its own control); Joe L.
Smith, Jr., Inc., 5 Rad Reg. 2d 582 (1965); accord Radio
Longview, Inc., 19 FCC 2d 966, 968-71 (1969); Beta Television
Corp., [*4] 27 FCC 2d 761, 763 (Rev. Bd. 1970). Cable was
required to file its extension application prior to the
expiration of its construction authorization. 47 C.F.R. Secs.
21.11 and 21.44(a). Cable failed to do so. Therefore, its
extension application is hereby dismissed as untimely filed.
n1 Section 21.44(a) stated inter alia as follows: ``A
construction permit shall be automatically forfeited if the
station is not ready for operation within the term of the
construction permit. . . .''
4. Conclusion and Ordering Clause. Have carefully
considered all of the arguments and evidence presented, we
find that Cable TV Services, Inc. automatically forfeited its
construction authorization for failure to construct prior to
the specified expiration date, reinstatement of the
authorization is not justified, and its extension application
was late filed. Accordingly, IT IS ORDERED that the request
for reinstatement filed by Cable TV Services, Inc. regarding
the above-referenced MMDS authorization is denied and its
extension application is dismissed. This order is issued
pursuant to 47 C.F.R. Sec. 0.291, and is effective on its
release date. See 47 C.R.R. Secs. 1.4(b), 1.106, and 1.115.
[*5]
James R. Keegan,
Chief, Domestic Facilities Division.
Common Carrier Bureau.
Sec. 73.3533 Application for construction permit or
modification of construction permit.
(a) Application for construction permit, or modification of
a construction permit, for a new facility or change in an
existing facility is to be made on the following forms:
(1) FCC Form 301, ``Application for Authority to Construct
or Make Changes in an Existing Commercial Broadcast
Station.''
(2) FCC Form 309, ``Application for Authority to Construct
or Make Changes in an Existing International or Experimental
Broadcast Stations.''
(3) FCC Form 313, ``Application for Authorization in the
Auxiliary Broadcast Services.''
(4) FCC Form 330, ``Application for Authorization to
Construct New or Make Changes in an Instructional Television
Fixed and/or Response Station(s), or to Assign to Transfer
Such Station(s).''
(5) FCC Form 340, ``Application for Authority to Construct
or Make Changes in a Noncommercial Educational Broadcast
Station.''
(6) FCC Form 346, ``Application for Authority to Construct
or Make Changes in a Low Power TV, TV Translator or TV
Booster Station.''
(7) FCC Form 349, ``Application for Authority to Construct
or Make Changes in an FM Translator or FM Booster Station.''
[[Page S 14583]]
(b) The filing of an application for modification of
construction permit does not extend the expiration date of
the construction permit. Extension of the expiration date
must be applied for on FCC Form 307, in accordance with the
provisions of Sec. 73.3534.
Sec. 73.3534 Application for extension of construction permit
or for construction permit to replace expired
construction permit.
(a) Application for extension of time within which to
construct a station shall be filed on FCC Form 307,
``Application for Extension of Broadcast Construction Permit
or to Replace Expired Construction Permit.'' The application
shall be filed at least 30 days prior to the expiration date
of the construction permit if the facts supporting such
application for extension are known to the applicant in time
to permit such filing. In other cases, an application will be
accepted upon a showing satisfactory to the FCC of sufficient
reasons for filing within less than 30 days prior to the
expiration date.
(b) Applications for extension of time to construct
broadcast stations, with the exception of International
Broadcast and Instructional TV Fixed stations, will be
granted only if one of the following three circumstances have
occurred:
(1) Construction is complete and testing is underway
looking toward prompt filing of a license application;
(2) Substantial progress has been made i.e., demonstration
that equipment is on order or on hand, site acquired, site
cleared and construction proceeding toward completion; or
(3) No progress has been made for reasons clearly beyond
the control of the permittee (such as delays caused by
governmental budgetary processes and zoning problems) but the
permittee has taken all possible steps to expeditiously
resolve the problem and proceed with construction.
(c) Applications for extension of time to construct
International Broadcast and Instructional TV Fixed stations
will be granted upon a specific and detailed showing that the
failure to complete was due to cause not under the control of
the permittee, or upon a specific and detailed showing of
other sufficient to justify an extension.
(d) If an application for extension of time within which to
construct a station is approved, such an extension will be
limited to a period of no more than 6 months except when an
assignment or transfer has been approved that provides for a
longer period up to a maximum of 12 months from the date of
consummation.
(e) Application for a construction permit to replace an
expired construction permit shall be filed on FCC Form 307.
Such applications must be filed within 30 days of the
expiration date of the authorization sought to be replaced.
If approved, such authorization shall specify a period of not
more than 6 months within which construction shall be
completed and application for license filed.
Sec. 73.3535 Application to modify authorized but unbuilt
facilities, or to assign or transfer control of an
unbuilt facility.
(a) If a permittee finds it necessary to file either an
application to modify its authorized, but unbuilt facilities,
or an assignment/transfer application, such application shall
be filed within the first 9 months of the issuance of the
original construction permit for radio and other broadcast
and auxiliary stations, or within 12 months of the issuance
of the original construction permit for television
facilities. Before such an application can be granted, the
permittee or assignee must certify that it will immediately
begin building after the modification is granted or the
assignment is consummated.
(b) Modification and assignment applications filed after
the time periods stated in paragraph (a) will not be granted
absent a showing that one of the following three criteria
apply: (1) Construction is complete and testing is underway
looking toward prompt filing of a license application; (2)
substantial progress has been made i.e., demonstration that
equipment is on order or on hand, site acquired, site cleared
and construction proceeding toward completion; or (3) no
progress has been made for reasons clearly beyond the control
of the permittee (such as delays caused by governmental
budgetary processes and zoning problems) but the permittee
has taken all possible steps to expeditiously resolve the
problem and proceed with construction.
* * * * *
____
Federal Communications Commission
[1985 FCC LEXIS 3169]
In the matter of WULT-TV
June 10, 1985 Released; June 4, 1985
Opinion by: [*1] McKinney.
Opinion: New Orleans Channel 20, Inc., Rochester, NY.
Re: BMPCT-840710KH, BAPCT-840727KG, WULT-TV, New Orleans, LA.
Gentlemen: This refers to the above-captioned applications
for an extension of time within which to construct Station
WULT-TV, New Orleans, Louisiana, and for consent to
assignment of the construction permit, a petition to deny n1
each of the applications, filed by Marvin Gorman Ministries,
Inc. (MGMI), and related pleadings.
n1 Applications for extension of time to construct are not
subject to petitions to deny. Therefore, the petition to deny
the extension of time application will be treated as an
informal objection filed pursuant to Section 73.3587 of the
Commission's Rules.
The Commission granted the construction permit for Channel
20 on October 10, 1980, following a settlement agreement
among three competing applicants. An application for
assignment of the construction permit was granted on January
25, 1982. The assignment was not consummated and on March 15,
1983, a second assignment application was granted, and was
consummated on June 28, 1983. On August 9, 1983, the
Commission granted the permittee's application for [*2] a six
month extension of time to construct. No construction was
undertaken following any of the grants. On February 8, 1984,
the Commission granted an additional six month extension of
time to construct, subject to the condition that, not later
than May 9, 1984, you would file a progress report with the
Commission. By letter dated May 9, 1994, rather than
submitting a progress report, you informed the Commission
that because of the drain on your time and resources and lack
of success in obtaining a suitable construction site, you had
decided to assign the permit to another entity better able to
pursue construction of the station. Consequently, you have
once again requested an extension of time to construct in
order to assign the permit to another entity. It again
appears that no construction has been undertaken. You state
that the proposed assignee stands ready to pursue
construction of the station once the assignment application
is approved.
In its objections, MGMI contends that you have had ample
time in which to secure a site, have failed to do so, have
received two extensions previously for failure to find a
site, and that you have made little effort to procure a
transmitter [*3] site. Under these circumstances, MGMI argues
that you should not be allowed to profit from the sale of the
construction permit which would result if the Commission
grants the requested extension. MGMI alleges that you have
not been diligent in your efforts to secure a transmitter
site, and that you assertion that you have, lacks
credibility. MGMI points out that several of its officers
know of available sites for a transmitter, and that ten other
applicants for Channel 49 in New Orleans have specified
available sites. MGMI notes that two of the principals of New
Orleans Channel 20, Inc. have been holders of the
construction permit for Channel 20 since 1980. Therefore,
MGMI argues, it is unreasonable to believe that these
principals could not have produced a transmitter site within
this four year time span. Further, MGMI states that the
public interest has been successively undercut by your
continuing attempt to hold on to the construction permit.
MGMI asserts that your failure to construct over the past
four years has removed the channel from the community and
prevented any other party from applying to use it.
In opposition, you state that the objections are not based
on [*4] the present set of circumstances, but on the previous
extension applications and the previous applications for
assignment of the construction permit which cannot be
revisited. You argue that the public interest would be served
by extending the construction permit and allowing the station
to go on the air promptly. You assert that the public
interest would not be served by opening up the channel for
multiple competing applications. You note that LeSea
Broadcasting, the proposed assignee, has committed itself to
constructing the station, and it hopes to have the station on
the air in seven months. n2
n2 The proposed assignee states that it has: (1) secured a
transmitter site and filed an application to modify the
Channel 20 construction permit to specify the new site; (2)
placed a contingent order for broadcast equipment in the
amount of approximately $2.5 million; (3) located a suitable
studio site; and (4) reached agreements in principle with
individuals who will be the station's operations manager and
chief engineer.
Additionally, you maintain that past Commission cases made
it clear that an extension of time is appropriate where a
permittee that has not constructed a station [*5] proposes to
assign the permit to a party that is prepared to proceed with
construction. Gross Broadcasting Co., 41 FCC 2d 729 (1973);
New Television Corp., 65 FCC 2d 680 (Rev. Bd. 1977); Hymen
Lake, 56 FCC 2d 379 (Rev. Bd. 1975). You state that in the
past, where there has been a firm commitment from the
proposed assignee to construct and the probability of early
inauguration of UHF television, as here, the Commission has
consistently found that the public interest would be served
by extending the time for construction. You contend that the
extension and assignment of the Channel 20 permit would bring
new television service to New Orleans at the earliest
opportunity. Further, you allege that MGMI has failed to
offer any support for its legal position and has provided no
basis for overturning long-established Commission policy.
In reply to your opposition, MGMI maintains that you have
not submitted any showing of circumstances beyond your
control which prevented construction and, therefore, the
permit should be forfeited. MGMI alleges that in the 11
months you have controlled the permit, you have made no
discernible effort to find a site, order equipment, [*6] or
to begin any type of television operation in New Orleans.
Yet, MGMI states, you now hope to receive $250,000 for
transferring the permit to another party.
Before an extension application can be granted, Section
73.3534(a) of the Commission's Rules requires either a
specific and detailed showing that the failure to complete
[[Page S 14584]]
construction within the time provided was due to causes
beyond a permittee's control or that there are other matters
sufficient to justify the extension. In the past, where an
assignee made a firm commitment to construct expeditiously
and the Commission was persuaded that the assignment
represents the fastest way to have the station activated, the
pendency of the assignment application can be considered to
be such an ``other matter.'' King Communications, Inc., 47 RR
2d 109, 110 (Rev. Bd., 1980). However, the filing of an
assignment application does not automatically entitle the
permittee to an extension of time to have the station built.
Moreover, subsequent to the King decision, the Commission has
clearly stated that it will take a much closer look at
extension applications. See, e.g., Revision of Form 301, 50
R.R. 2d 381, 382 (1981); MEKAOY [*7] C. (KTIE), 48 RR 2d 815,
817 (Broadcast Bureau, 1980).
Here, we note that it has been four years since the
construction permit was issued for Channel 20. During this
time, the Commission has granted two assignment applications
and two applications for extension of time to construct. Yet,
no construction has commenced and it appears that no
equipment has been ordered. In granting the last extension of
time to construct, the Commission granted the request subject
to the condition that not later than May 9, 1984, a progress
report would be filed with the Commission. However, on May 9,
1984, you informed the Commission that you had decided to
assign the permit to another entity. Thus, on July 10, 1984,
you filed an application for extension of time to construct
and on July 27, 1984, an application for assignment of the
construction permit.
In this case, the permit was assigned to you on the
assumption that you would build promptly. The last extension
application was approved on the assumption that its grant
would expeditiously result in a new service to the public.
These expectations have come to nought.
Accordingly, on the basis of the facts set forth in your
application, [*8] the Commission is unable to find that
construction of the station was prevented by causes beyond
your control and the Commission does not find the existence
of other matters which would warrant an extension. The filing
of the assignment application, under the circumstances, does
not warrant an extension of time. You are advised that your
application for an extension of time within which to
construct Station WULT, New Orleans, Louisiana, is denied,
your construction permit is canceled, your call sign is
deleted, and your application for assignment of the
construction permit to LeSea Broadcasting, Incorporated, is
dismissed, as moot.
Sincerely,
James C. McKinney,
Chief, Mass Media Bureau.
Mr. McCAIN. Mr. President, I would still like to have a rollcall vote
on this issue, but I have no further reason to debate the issue. So I
would suggest the absence of a quorum.
The PRESIDING OFFICER. The absence of a quorum has been suggested.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BRYAN. Mr. President, I ask unanimous consent that further
proceedings under the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BRYAN. I thank the Chair.
Transitional Funding For United States Travel And Tourism
Administration
Mr. BRYAN. Mr. President, I wanted to alert my colleagues it will be
my intention later on today when the floor opens up to offer an
amendment with Senator Burns to provide transitional funding----
The PRESIDING OFFICER. If the Senator would withhold.
We are in a controlled time.
Mr. BRYAN. I think my statement would take perhaps 7 or 8 minutes, if
there is a parliamentary concern.
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. I will yield the Senator from Nevada 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, how much time do I have?
The PRESIDING OFFICER. The Senator has 11 minutes.
Mr. DORGAN. Then I will yield the Senator from Nevada 11 minutes.
The PRESIDING OFFICER. The Senator from Nevada is recognized for 11
minutes.
Mr. BRYAN. I thank the Chair and my friend from North Dakota for his
courtesy.
As I indicated, Mr. President, it will be my intention to offer, with
the distinguished Senator from Montana, Senator Burns, an amendment
later on today to provide transitional funding for the U.S. Travel and
Tourism Administration.
This funding would permit an orderly transition into a new public/
private-sector entity. This amendment enjoys the support of a number of
Senators on both sides of the aisle, including, among many others,
Senators McConnell, Hollings, Murkowski, Inouye, Thurmond, and Daschle.
I might also note, Mr. President, that the National Governors'
Association at their recent annual meeting endorsed the concept
embodied in this proposed amendment.
Mr. President, none of us is unmindful of the fact that the current
budget pressures demand some extraordinary responses. So the purpose of
this amendment is simply to provide some transitional funding until
this public-private partnership can be organized.
As part of this effort, the Congress, the administration, and the
travel and tourism organization that are needed best to promote the
travel industry are going to need some time to put this into effect. To
cut off funding cold turkey, as is contemplated in the present form of
this bill, would be the equivalent of unilateral disarmament.
All of our competitors spend considerably more than we do on their
national tourism offices. In fact, the United States ranks 23d,
spending just $16 million while countries like Greece, Mexico, and
Spain, spend more than $100 million each year. In fact, putting this in
some context, Mr. President, we rank behind such powerhouses as Tunisia
and Malaysia in terms of the amount of money we are spending.
Unfortunately, these spending figures are having a dramatic impact on
our share of the world's tourism market. In 1993, the United States
enjoyed almost 19 percent of the world's tourism receipts. This has
declined to 15.6 percent this year, and is expected to shrink to 13.8
percent by the end of the decade. The chart that I have prepared will
indicate that rather dramatic decline. In 1993, 18.7 percent; 1994,
17.9 percent; 1995, estimated this year, 15.6 percent; and by the end
of the century, 13.8 percent.
Now, this is more than just a statistical observation. It has real
impact. The loss in the U.S. share of the world's tourism market can be
translated into a significant impact on our trade deficit and on
employment. If we were able to keep our world tourism share from
shrinking, we would improve our trade balance--that is a plus, Mr.
President--by $28 billion and increase employment by 370,000 people by
the year 2000.
Those are significant industries. Very few industries can shape our
economy to this extent. Travel and tourism is already the second
largest employer in our Nation after health care. It employs either
directly or indirectly 13 million Americans.
Now, this indicates the trade surplus balance, something that is
always of concern to us. We are running, in terms of our international
trading accounts, a deficit.
This clearly indicates that tourism--international tourism; we are
not talking about domestic tourism; this is international tourism--can
be a substantial, positive, contributing factor. The estimate this year
is $18.1 billion, that is, in effect, more people coming to the United
States from abroad, spending money in your State, Mr. President, and
others who are on the floor and my own as opposed to Americans
traveling abroad and spending money in foreign countries--$18.1 billion
to the good as we say.
The opportunity we have as a nation is that international travel and
tourism is growing rapidly. By the year 2000 more than 661 million
people will be traveling throughout the world. That is roughly twice as
many people as traveled in 1985. What we need to do is to capture our
share of this tourism market. We need to put the muscle of the public
and private sector together in a public/private-sector relationship to
make sure we advance this market, fully exploit this market to make
sure that we get our fair share of the international travel dollar. And
to do this we need to develop a new strategy, jointly with the private
sector, to energize our international tourism efforts.
The amendment which we will be offering later today would provide $12
million in funding for USTTA, for the transition into this new public/
private-sector entity. What this entity will look like is being
formulated as we
[[Page S 14585]]
speak. It should be available for scrutiny at the upcoming White House
Conference on Travel and Tourism.
Australia and Canada have recently created such public/private-sector
partnerships. These new organizations are each spending approximately
$100 million this year and have developed creative and aggressive
programs in promoting national tourism on behalf of their respective
countries.
I do not come here to defend our current tourism effort. It is in
need of a major overhaul. But terminating this program cold turkey is
not the appropriate step to take. We must make a transition into a new
market entity. This transition is important for all of us. It gives us
time to begin implementing the recommendations that will emerge from
the White House conference on tourism, time to help kick off the 1996
summer Olympics in Atlanta, in time to make a transition into a new
public/private-sector partnership.
Later on, Mr. President, I will urge my colleagues to support this
amendment, which enjoys wide bipartisan support. And I note the work of
my distinguished colleague from Montana, Senator Burns, who is a prime
cosponsor with me.
Mr. President, I do not know if anyone else needs to speak, but I
reserve the remainder of the time and yield the floor.
Noting no other Senator on the floor, I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. HOLLINGS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
amendment no. 2815
Mr. LAUTENBERG. Mr. President, I rise in support of this amendment,
which would increase our commitment to addressing the menace of
domestic violence.
Mr. President, violence against women is one of this country's most
important and pressing problems. Every 5 minutes a women is raped.
Every 12 seconds a woman is battered. In fact, these figures reflect
only reported crimes--the actual incidence rates probably are even
higher.
These numbers are mind-numbing and appalling. Yet they fail to convey
the horror and the long-term physical and emotional harms that victims
suffer. Sexual assault can have a devastating impact on a woman,
especially if she cannot get access to needed counseling and support
services. These harms can last a lifetime. It's therefore critical that
counseling and other services are available to all victims.
That is one reason why last year I was proud to cosponsor the
Violence Against Women Act. This act offers a comprehensive approach to
fighting family violence and sexual assault.
Under the act, Federal funds are distributed to the States for victim
support services, for training of law enforcement officers, for
expansion of law enforcement and prosecution agencies, and for the
development of more effective programs to prevent violent crimes
against women.
Funds have already been distributed to the States under this act, and
it's off to a good, strong start. But it's only a start. The job is far
from done.
Unfortunately, in its current form, this bill would take a step
backward in the battle against domestic violence. Last year, Congress
authorized about $175 million for fiscal year 1996. Yet the bill would
cut that level by $75 million.
In my view, that cut would be a big mistake. We simply should not
turn our back on the commitment that we made last year to fighting
violence against women.
So, Mr. President, I strongly urge my colleagues to support this
amendment, which would provide critical additional funds for the
Violence Against Women Act. It's time to make the fight against
domestic violence a top national priority.
Mr. LEAHY. Mr. President, I thank my colleagues for restoring funding
for the Violence Against Women Act programs. When we passed the
Violence Against Women Act as part of the Violent Crime Control and Law
Enforcement Act of 1994, we responded to the crisis of domestic
violence that exists throughout this country, in rural and urban
communities, among poor, middle class, and the rich, affecting women
and children of all races and religions. Those programs are among the
most important parts of the comprehensive legislation we considered and
passed last year after 6 long years of debate.
To have gutted these programs through the appropriations process
would have been wrong. To have done so when the funding for them was
assured through the Violent Crime Reduction Trust Fund would have
breached our commitment to the American people. A 99 to 0 vote in favor
of restoring this funding sends a powerful message to those who would
have cut funding for these important programs.
Law enforcement and community-based programs cannot be kept on a
string like a yo-yo if they are to plan and implement programs to begin
to deal with domestic violence and its prevention. They need to be able
to initiate programs and hire staff and have a sense of stability if
these measures are to achieve their fullest potential.
I know, for instance, that, in Vermont, Lori Hayes at the Vermont
Center for Crime Victims Services; Judy Rex and the Vermont Network
Against Domestic Violence and Sexual Abuse; Karen Bradley from the
Vermont Center for Prevention and Treatment of Sexual Abuse; and
others, provide tremendous service under difficult conditions. Such
dedicated individuals and organizations, working in a most difficult
area, on problems that were once thought to be intractable, ought not
be promised support and then frustrated just as they are about to
expand needed programs and services throughout the State. Vermont was
the first State to apply for and the first State to begin receiving its
Violence Against Women Act grant. The Governor and his advisers had
made plans and promises and announced grantees through the State. That
implementation of Violence Against Women Act programs ought to proceed
without further delay, distraction or diminution.
What Congress needs to do is to follow through on our commitments,
not to breach them and violate our pledge to law enforcement, State and
local government, and the American people. Invading trust funds
dedicated to Violence Against Women Act programs is simply not
justifiable. Neither the elimination of the corporate alternative
minimum tax nor capital gains taxes is sufficient reason for this cut.
Funding for important programs implementing the Violence Against
Women Act and our rural crime initiatives should not be cut without
debate and justification. There has been neither.
Earlier this year I offered a resolution rejecting the ill-advised
House action cutting $5 billion from the Violent Crime Reduction Trust
Fund. The Senate agreed and proclaimed its intent to preserve the trust
fund so that we could fulfill the promise of the Violent Crime Control
and Law Enforcement Act and our commitment to do all that we can to
reduce violent crime in our local communities. The action we take today
takes an important step in that same direction and preserves to our
Violence Against Women Act programs funds that are needed for their
proper implementation.
Mr. HOLLINGS. Regular order, Mr. President.
vote on amendment no. 2815
The PRESIDING OFFICER (Mr. DeWine). Under the previous order, the
Senate will now vote on the Biden amendment No. 2815.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. FORD. I announce that the Senator from Ohio [Mr. Glenn], is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 99, nays 0, as follows:
[Rollcall Vote No. 474 Leg.]
YEAS--99
Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
[[Page S 14586]]
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Helms
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simon
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone
NOT VOTING--1
Glenn
So the amendment (No. 2815) was agreed to.
Mr. BIDEN. Mr. President, I move to reconsider the vote and I move to
lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 2816, As Modified
The PRESIDING OFFICER. Under the previous order, the McCain amendment
is now in order. There are 4 minutes equally divided.
The Senator from Arizona.
Mr. McCAIN. Mr. President, I thank the Senator from Colorado, Senator
Brown, for his perfection of this amendment, which has allowed us to
agree on this very important savings of between $300 and $700 million
for the taxpayers of America. I thank Senator Brown for that.
I yield what remaining time I have to the Senator from North Dakota.
Mr. DORGAN. Mr. President, I associate myself with the Senator's
remarks. I hope the Members of the Senate will vote to approve this
amendment. It does deal with $300 to $700 million that ought to inure
to the benefit of the taxpayers of this country, and that is why we
offered the amendment.
I yield the remainder of my time.
Mr. BYRD. Mr. President, may we have an explanation of the amendment?
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. BYRD. May we have an explanation of the amendment? I understand
it is a good amendment, but I would like to know what it is if we are
going to be voting on it.
The PRESIDING OFFICER. The Senator will suspend. If those Members
having discussions could please retire to the Cloakroom?
The Senator from Arizona.
Mr. McCAIN. Mr. President, the amendment expresses, legally, that the
U.S. Senate is in favor of obtaining the maximum value for a spectrum
which is valued between $300 and $700 million. This is done by auction.
The perfecting amendment by Senator Brown is that, in case there is
another way to gain more money for the taxpayers, that path should be
pursued by the FCC as well.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, I have no particular reason to enter into
any discussion on this amendment. But when we get 4 minutes allotted
for explanation of these amendments, that is a very worthwhile
injection into the unanimous-consent request. It means something, for
the rest of the Members to understand what we are voting on.
I am not on the committee that has jurisdiction of that particular
subject. I would just like a little clearer explanation. I expect to
vote for the amendment. I hear a lot of good things about it. But I am
sure a lot of Members have not heard debate on it. I have not.
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, the reason my remarks this morning were
brief is that we came at 9 o'clock this morning and began a debate on
this very amendment per the unanimous-consent request last evening.
There was debate on both sides of the amendment beginning at 9 o'clock
this morning. My intention was not to take up any more of the Senate's
time. It was debated both this morning and partially last night.
I think the amendment is a good agreement. I respect the Senator from
West Virginia's interest in making sure everybody understands what we
are voting on just prior to the vote, but I think we have had a good
debate on this. I hope the Members will support the amendment.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, is there any time left?
The PRESIDING OFFICER. There is 1 minute 19 seconds.
Mr. BYRD. Mr. President, I am one of those Senators who stayed around
all afternoon waiting on a vote yesterday. I was told there would be a
vote at 9 o'clock last night, so I went home about 6:30 or 7 to get
some dinner, to be with my good wife, Lady Byrd, and my little dog,
Billy Byrd.
So I came back. Then, after I got back, it was my understanding there
was not going to be any vote until this morning. So, as a result of all
of that, to make a long story short, I did not get to listen to the
debate. I do not know about other Senators, but, with that kind of
discussion here, it is pretty hard to keep body and soul together with
a good meal once in a while, let alone understand what is in these
amendments.
The PRESIDING OFFICER. The question now is on the amendment No. 2816,
as modified. The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. MACK (when his name was called). Present.
Mr. FORD. I announce that the Senator from Ohio [Mr. Glenn] is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
who desire to vote?
The result was announced--yeas 98, nays 0, as follows:
[Rollcall Vote No. 475 Leg.]
YEAS--98
Abraham
Akaka
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Bradley
Breaux
Brown
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Coats
Cochran
Cohen
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Dole
Domenici
Dorgan
Exon
Faircloth
Feingold
Feinstein
Ford
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Harkin
Hatch
Hatfield
Heflin
Helms
Hollings
Hutchison
Inhofe
Inouye
Jeffords
Johnston
Kassebaum
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Nunn
Packwood
Pell
Pressler
Pryor
Reid
Robb
Rockefeller
Roth
Santorum
Sarbanes
Shelby
Simon
Simpson
Smith
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
Wellstone
ANSWERED ``PRESENT''--1
Mack
NOT VOTING--1
Glenn
So the amendment (No. 2816), as modified, was agreed to.
Mr. GRAMM addressed the Chair.
The PRESIDING OFFICER. The Senator from Texas.
Amendment No. 2819
Mr. GRAMM. Mr. President, is the pending business the Domenici
amendment?
The PRESIDING OFFICER. Under the previous order, that is the pending
business.
Mr. GRAMM. Mr. President, I ask for the yeas and nays on the Domenici
amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. DOMENICI addressed the Chair.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Mr. President, we have before us an appropriations
bill. We have imposed, on top of the House bill, our particular
appropriators' likes and dislikes. But the underlying bill that the
House sent to us essentially says, ``Let's keep the Legal Services
Corporation, but let's make sure that those things that the Legal
Services Corporation has been doing that many Senators and many people
in this country don't think they ought to be doing, that those things
be prohibited.''
The House did not abolish the program. The House in the
appropriations bill funded legal services with these prohibitions
attached.
[[Page S 14587]]
What I am going to do now is to take the amendment that came out of
the subcommittee that is on the floor on legal services, and I am going
to substitute for it something very much like the House bill. So for
those who wonder whether this amendment, the Domenici-Hollings and many
others, whether this bill will permit the Legal Services Corporation to
do business as usual, I submit to them we are going to let this Legal
Services Corporation do what the House said they can do.
And what is that?
First, let me say that this approach to justice came under the regime
of Richard Nixon. And what he said then I believe applies today, and
maybe more so.
He said:
[It] gives those in need new reason to believe that they
too are part of ``the system'' . . . [by doing what we have
learned] that justice is served far better--
And continuing with his quote--
and differences are settled more rationally within the system
rather than on the streets. Now [he said in the 1970's] is
the time to make legal services an integral part of our
judicial system.
Now, since that point until now, legal services has had a rocky
career. There is no doubt about it. It has been debated on the floor.
And it has been perilously close--but for Senator Rudman as a stalwart,
perhaps it would have been changed and it would not be around. But
essentially what the Senator from New Mexico intends is that this
program be around as Richard Nixon intended.
Should not the poor people in the country should be served by lawyers
when they themselves have a need for a lawyer. In fact, it was
mentioned back in the days when the Legal Services Corporation was
established that lawyers would be down there with the poor people
taking their case, the idea of storefront justice.
I say to everyone, I do not know what is wrong with the United States
of America saying to the needy people of this country that the judicial
system is not only for the rich. What is wrong with that? Why should a
Republican be ashamed to say that? That is what America is all about.
What we do not want, at least this Senator does not want, is the
legal services to be suing the Legislature of the State of New Jersey
when they are adopting a new welfare program and saying, ``You can't do
that.'' I think they should leave that to somebody else. And this
program ought to be for the individual poor people who have a need for
a lawyer.
Let me suggest--although it is a criminal case, so it does not
necessarily apply to what we are doing, I say to the Senator from South
Carolina--but has anybody ever seen a situation, such as the O.J.
Simpson trial, where somebody who has plenty of money gets plenty of
justice?
But here we have in a poverty neighborhood an American citizen who
is being thrown out of their house, and they have a legitimate reason
as a tenant to remain there. But if they do not get a lawyer, they are
out on the streets.
If that same thing existed and there was a tenant in a million dollar
house for the summer and the landlord wants to throw them out, they
will get justice, will they not? They will get justice. They will get a
lawyer. Why should that poor person not get that?
Frankly, I am one of those who wants to make Government smaller. I
want to balance the budget. I do not take a back seat to anybody on
this. But what I am trying to do in this amendment is to return the
level of funding to legal services to what it was 3 years ago. I am
cutting 15 percent, I say to the Senator from Hawaii, Senator Inouye,
15 percent from this funding. Frankly, there are not a lot of programs
getting cut much more than 15 percent. There are some, and some are
zero, but for the most part, 7, 8, 9 percent, even in these very
difficult times.
I want to read the prohibitions, and might I say, Mr. President, I am
fully aware--I am fully aware--that a number of people are going to
vote for my amendment and it will be adopted. It will be adopted, you
can count on it. There are a number of people who do not like all these
prohibitions, but they are going to vote for it. They are going to vote
for this amendment because they do not want to see an appropriations
subcommittee, which probably had one hearing for 1 hour, 1\1/2\ hours,
2 hours, decide in a funding bill to do away with this program and
create a new block grant that we do not even understand and, at the
same time, provide such a small amount of funding for the next year
that there will not be anything being done for the poor people.
We might just as well say for the next year there is nothing going to
be done under the funding level here. If anybody wants to challenge me
on that, do not look at the budget authority number, look at the
outlay. It is a little tiny bit; $53 million in outlays for the whole
next year. The House put in $278 million; $53 million versus a House
Republican conservative $278 million. I bring it up to $340 million,
which is 15 percent less than last year.
Let me read the prohibitions. If there is anyone here who does not
think the Domenici-Hollings amendment wants to make this program work
for individual American needy people in their personal litigation, let
me read the prohibitions.
First, you cannot use any of this money or any money from other
sources that is in the Legal Services Corporation to advocate policies
relating to redistricting.
No class action lawsuits--no class action lawsuits--can be filed. To
revert back to what I just described: Individual legal services for
individual Americans in need, for their case and their cause and only
that.
You cannot use it for influencing action on any legislative,
constitutional amendment, referendum, or similar procedures of
Congress, State, or local legislative bodies. The same as the House.
You cannot use it for legal assistance to illegal aliens. Americans,
Americans are what we have in mind, American citizens.
Supporting, conducting training programs relating to political
activities, abortion litigation, prisoner litigation--same as the
House--welfare reform litigation, except to represent individuals on
particular matters that do not involve changing existing law.
I can go on with the rest. I put them in the Record last night. If
anybody has any questions on them, I will be pleased to answer them.
I know sitting on the floor right now are perhaps two Senators who
would rather have less of these, and I understand that. But I want to
do one thing at a time this year. I do not want to do away with the
program. I do not want a block grant program designed in an
appropriations subcommittee which I believe essentially is destined to
get rid of the system.
I have left one part of this discussion to my good friend Senator
Hollings because, obviously, the chairman of the subcommittee, Senator
Gramm from Texas, is going to get up and talk about the offsets. I have
not been privy to reading what he might say, nor has he shared it with
me, but I can see it coming.
He is going to suggest, for instance, that salaries and expenses for
the Federal judiciary, that I took a little bit of money away from--
yes, I did. But we have consulted regularly on that and, basically, we
are convinced that because we have increased it sufficiently, to take a
small amount off, they are going to be all right, as compared to doing
away with legal services for the needy and the poor.
He is going to talk, for instance, about U.S. attorneys. Let me just
tell you about that one. I know the argument. The argument is going to
be: There are a lot of criminals out there who need to be prosecuted.
Are we going to take away prosecutions of those people to keep legal
services?
Mr. President, I say to my fellow Senators, what actually happened is
the subcommittee took the President's budget on new U.S. attorneys,
which was more than adequate. All the U.S. attorneys around said,
``That's a great number,'' and the subcommittee increased it, maybe
increased all of those kinds of funding, so there would not be anything
left for a program like this. Then we come along and say, ``Let's bring
it down to the President's budget,'' and we are cutting U.S. attorneys.
Having said that, there are a number of other things. I am going to
ask if my good friend, Senator Hollings, who is my cosponsor, who has
chaired this subcommittee and is the ranking member, might address the
Senate now with
[[Page S 14588]]
reference to his feelings on this amendment. And with particularity, if
he can talk a little about the offsets, I would appreciate it.
I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, I thank my distinguished colleague from
New Mexico and former ranking member and the former chairman of our
subcommittee.
In short, Senator Domenici talks with expert knowledge, intimate
knowledge, of this particular appropriations measure.
First, Mr. President, Legal Services is a many splendored thing. I do
not say that lightly. Yes, it was an idea that came to fruition, you
might say, under President Nixon. But it was long since due, if you
please. We had many in the vineyards who had been working over the many
years. In the 1920's, Charles Evans Hughes; our former President, Chief
Justice William Howard Taft; and Elihu Root supported the formation of
a standing committee on legal aid work in the American Bar Association.
And Taft wrote, in 1925:
Something must be devised by which everyone, however lowly
and however poor, however unable by his means to employ a
lawyer and to pay court costs, shall be furnished the
opportunity to set this fixed machinery of justice going.
Then it was some 40 years later, almost 50 years later, that our
distinguished former President, Richard Nixon, came in 1970 with the
American Bar Association. When I say a ``many splendored thing,''
everybody thinks voluntarism begins in Washington, families begin in
Washington, and everything that is done begins in Washington.
The fact of the matter is that society has been very concerned about
the poor having their day in court. We, as old-time trial lawyers, know
that, yes, with respect to damage suit cases and injury cases whereby
you can get a verdict, there is a long since-established system that
has worked extremely well--and now the Brits, by the way, are coming to
it--whereby we take it on a contingent basis because we know the poor
injured do not have the money to investigate, do not have the money to
pay hourly payments that they get in Washington.
There are 60,000 lawyers under billable hours running around this
town who have never been in a courtroom. On the contrary, the poor can
come to a trial attorney. He will take care of the court expenses, the
medical expenses of the doctors testifying, the experts drawing plats
and what have you. And if he loses his case, the poor do not owe the
lawyer anything. That is a contingent fee basis of trial work.
But when it comes to these smaller cases where there is not any
contingency to be paid--namely, a domestic case, an unemployment case,
a landlord-tenant case--for the poor, in these types of cases, there is
no time in it or benefit with it with respect to the practicing bar.
And they have been more or less shut out over the many, many years
until President Nixon and the Legal Services Corporation under the
American Bar Association got started.
Now, what has developed? Mr. President, I think there are over
130,000 lawyers. Imagine that. Do away with this and give it to the
Governors with block grants and try to find the lawyers who are going
to come in on this particular thing. They will start putting tanks on
the lawn again and buying airplanes and everything else of that kind.
As the distinguished chairman of my subcommittee knows, you get that
fish--what do we call it, the ``funk'' or the ``monk'' fish, whatever
it was.
I refer, Mr. President, to when we had the stimulus bill and they had
asked the poor mayors what they would like to do to stimulate the
economy. They came up with cemeteries. They came up with golf courses.
They came up with parking garages down there for the youngsters to park
at Easter-time on Fort Lauderdale beach. We had to put in all kinds of
restrictions there on the local effort and what local people can spend
for legal services, or not spend.
What you are doing is really destroying, if you please, one of the
finely honed societal developments, led, if you please, by the American
Bar, and former Associate Justice Lewis Powell when he was the
president of the American Bar Association, and President Richard Nixon.
I remember it well. I had been involved in this since the early days.
We have had stormy times. After it got started, everybody was jumping
up and down on the Capitol steps, saying ``Hey, hey, go away; how many
did you kill today?'' and all of that. Yes, we were paying them--Legal
Services were paying them. I had to treat that with amendments and say,
no, let us get back. We are not paying for demonstrating groups to
come.
As the distinguished Senator from New Mexico has referred to, and as
concerned as the Senator from Texas and the Senator from South Carolina
are, the next thing you know a couple years ago, there went Legal
Services suing the State of New Jersey.
That is not the intent. There are plenty of moneys for class actions
for these other groups. You have to keep it couched and carefully
controlled in order to maintain the credibility and the effectiveness
of the program.
So I welcome the restrictions that have been put on by Senator Gramm
and others here with respect to class actions and illegals and
otherwise. Let us make sure that we maintain the integrity of the
program. There were 250,000 cases last year, and, yes, with a $400
million appropriation. The communities come, the local governments and
State governments, and the various bar associations, and they pitch in
over $255 million--over half again what we appropriate at the Federal
level. If you put in a Federal program--if you put in block grants--I
can tell you right now they are not going to come with any moneys. You
really are messing up a many, many splendored thing.
So the Senator from New Mexico is following right now in the
footsteps of the Senator from New Hampshire, Senator Rudman. I will
tell you right now, do not get in Senator Rudman's way if you were
going to challenge the Legal Services. He would knock over chairs and
tables and come at you. I used to get out of the way. I am glad to get
out of the way now under the leadership of Senator Domenici for the
most worthwhile program that has been developed in a bipartisan fashion
and should be maintained as such.
What about these offsets? First you have to understand that the
moneys taken from the Department of Justice have to be understood. I
think I have the exact figure here. After all of the offsets are taken
in the Domenici-Hollings amendment, what happens is we still have
increased the Department of Justice a tremendous amount in percentage--
some 18-percent increase over this year. In other words, let us not
argue. Let us take and try on the offsets from the Department of
Justice, because I am a champion of that particular Department, having
been the chairman, and ranking member now, and on this subcommittee for
over 25 years. The FBI will have an 18.3-percent increase. The FBI,
with its attorneys and otherwise, will be left with a $418 million
increase in this budget for 1996 over 1995.
So, in no way are we cutting back. It is a tremendous increase. The
truth of the matter is, I was actually amazed--and I have sworn I am
not going to ever use any charts around here. I am tired of it. If we
want to balance the budget, we ought to put a tax on charts used by us
politicians on the floor of the Senate and I think we could balance the
budget. Every time I look around, somebody is running out with one of
these mischievous charts.
It is jogging my memory here. By 1983, after almost 200 years of
history, we got to a $3 billion budget in the Department of Justice.
Mind you me, having been the chief law enforcement officer, having been
a Governor of a State, we have argued, and still argue, that the police
powers--those that belong rightfully at the local level--that the
primary function of the State government is its police powers to
enforce the law.
So we have been very askance about the Federal Government coming in
on all of these particular initiatives because we in Washington like to
get reelected.
We identify with the hot-button crime issue and we throw money at it.
We have had more crime bills come spewing down the road. We have $1
billion backed up there in the Bureau of Prisons. We are building them
like
[[Page S 14589]]
gangbusters all over the land, all because crime is a hot-button item.
It took 200 years to get to $3 billion. This budget here for 1996
will carry us to $16.95 billion--17 billion bucks.
Actually, the increase--taking the offsets in our Legal Services
amendment--the increase will exceed $3 billion, even accounting for
these offsets in the Department of Justice. In other words, in 1 year
we are increasing the Justice budget by the amount that the total
budget was just a few short years ago.
We think it is needed. As I say, I was on the committee. I did not
just do it willy-nilly, but we wanted to respond to immigration, border
patrol, the prison system, the Marshals Service, the FBI, Drug
Enforcement Administration, and on down the list. We have been working
and working and working.
Here we come with an offset respecting the particular crime lab. Now,
with respect to that crime lab, I know full well that the Department of
Justice is working with the Department of Defense to get that new
laboratory. It is a technical support center. That is over $300 million
in new initiatives.
Earlier this year, Judge Freeh came up with that particular need
after the tragic incident down there in Oklahoma. Just sort of like a
pinata, broke it, and all the gifts went in all directions. We just
started anywhere that anybody came up from the Justice Department. We
voted aye, we said you got that, do not worry about it, and everything
else.
Looking at that laboratory which we support out there at Quantico, we
know full well that the Justice Department is conferring now with the
Department of Defense, and they do not even have the site and the land
and everything else.
What we are trying to do is support the requirement as needed, and to
back up the money and the particular offset. It is not a question of us
not supporting the technical support center, but once we get the site
we have to draw the plans and everything else of that kind. What we
need to do is go in a deliberate fashion there.
With respect to the topography lab, it is a new one. There is an
effort in this Government along that line. You have to speak advisedly
because most of this is classified, but I can tell you here and now if
you have served on the Intelligence Committee--I served with the Hoover
Commission back in the 1950's investigating these type of activities--
that they are awfully, awfully expensive. The effort, I think, that we
have now in the Government is more than adequate without starting a new
one.
I defer to the chairman of our Intelligence Committee, the
distinguished Senator from Pennsylvania, Senator Specter, and our
ranking member, Senator Robert Kerrey of Nebraska. I am confident that
the offsets there are not going to injure in any fashion the efforts of
law enforcement or the Department of Justice.
With respect to the working capital fund, what we need to do is get a
little bit of discipline there. We have been liberal. In fact, we like
it when we handle these appropriations. If we had a working capital
fund in everybody's subcommittee, the chairman and the ranking member
could allocate around, somewhat like Plato's famous saying that a
politician ``makes his own little laws and sits attentive to his own
applause.'' All we need to do is not tell people about this working
capital fund and we can sit around and divide money up all year long.
The offset here is not going to hurt the Department of Justice, in any
fashion.
With respect to the conference success, I want to quote to you the
inspector general's observations contained in the annual report: ``We
are concerned that a successful decennial census could be jeopardized
if the Bureau attempts to accomplish too much too soon.''
Now, we never had any hearings on the census on our side of the
Capitol. The distinguished chairman, Mr. Rogers of Kentucky, over on
the House side did have deliberate hearings that went into the census
budget in detail, and the amounts offset in the Domenici-Hollings
amendment provide $67 billion that we came in on this particular
appropriations over the House, which is $60 million above the current
year.
In reality, Mr. President, what we are doing is almost like
conferees--we can see ahead down the road when we confer with our House
friends on a conference of committees to finalize the figure that we
are going to reconcile this backwards.
What happens is that Senator Domenici has very wisely come and said
we should do a little of the reconciling at this particular point to
save an awfully important entity. We do not want to change this to any
kind of block grant. We do not want to be cutting it back.
These lawyers--they are inspired. I commend the law schools of the
country over for inspiring these young attorneys coming out to do good,
to offer public service--with many of them wanting the experience and
saying, ``I will give a little bit of time now to the public. I will
learn and be able to better represent, and I will be doing some good
for the communities in which I live.'' So they come in there.
I think the average fee of any legal service lawyer--they are earning
around $30,000 to $33,000 a year. No, that does not take these Ivy
League boys who come and go into downtown Washington and downtown New
York who start out at $80,000 a year and everything else. That is not
the case. We are not enriching any lawyer. We are enriching society.
This amendment is well conceived. The offsets, I can say, will never
cause injury. On the contrary, what is still left is over and above the
House side. Even though our budget, our 602(b) allocation was $1
billion below the House, we still come in $750 million above the House
with these particular offsets. We are in good, strong shape. I think
the Senator from Texas would want to join us in this amendment.
Mrs. KASSEBAUM. Mr. President, I want to take just a few minutes as
the chairman of the Labor and Human Resources Committee, the
authorizing committee for the Legal Services Corporation, to express
strong support for the Domenici-Hollings amendment.
I want to say why I do so. We have had an extensive hearing in the
Labor and Human Resources Committee. We heard from witnesses on both
sides of the issue. I have introduced legislation in the Senate as a
companion measure to the McCollum-Stenholm bill that is under
consideration in the House. We will soon be marking up this legislation
in the Labor Committee.
As Senator Domenici pointed out quite correctly, the language in the
Domenici-Hollings amendment is agreed to by some and not by others. It
is language that returns the Legal Services Corporation to its original
mission. It is language that reforms the program in a way that restores
it to what it was supposed to be when the legislation was passed and
became law.
The most important part of this amendment is that it restores funding
for the Legal Services Corporation. That point has already been well
made by Senator Domenici and Senator Hollings. As Senator Domenici also
noted, this amendment has important reforms and tight restrictions on
permissible activities. I would just like to reiterate those, if I may,
very briefly. In terms of operational reforms:
Frist, a competitive bidding system will be required for awarding LSC
grants based on quality and cost effectiveness of service; second, the
governing board of LSC grantees will establish priorities for the types
of cases to be handled. thrid, the LSC grantees will be required to
keep time sheets identifying the client and matter under consideration;
fourth, LSC grantees will be restricted in their use of non-LSC funds.
and fifth, finally, there are new safeguards requiring the
identification by name of plaintiffs and statement of facts underlying
the case before initiating litigation or settlement negotiations.
On the restrictions side, Legal Services grantees: May not lobby for
passage or defeat of legislation, may not represent illegal aliens, may
not participate in training programs and political activities, may not
take redistricting cases, may not participate in abortion litigation,
may not participate in class actions, may not challenge welfare reform,
may not defend tenants evicted from public house projects because of
drug dealing, may not take fee-generating cases, and may not solicit
clients.
These are all very important restrictions. Some, as Senator Domenici
pointed out, were far too restrictive for
[[Page S 14590]]
some of our colleagues. Nevertheless, I believe these restrictions
provide the necessary guidance to take Legal Services back to its
primary mission, which is providing assistance to those who need legal
representation and cannot afford it.
It is very important that low income individuals have the same access
as anyone else to the legal system. But it seems to me, over the years,
the Legal Services Corporation has gone far beyond its initial mandate
when the law was passed under President Nixon's leadership.
So, for all of those reasons, I strongly support and have high regard
for the legislation that has been put forward as an amendment by
Senator Domenici and Senator Hollings.
I yield the floor.
Mr. DOMENICI. Will the Senator yield for a question?
Mrs. KASSEBAUM. I will be happy to yield to the Senator from New
Mexico.
Mr. DOMENICI. It is correct, is it not, that the competitive bidding
of grants is in this amendment? You stated it as being part of your new
reauthorizing, but you have noted it is in this amendment also, is that
not correct?
Mrs. KASSEBAUM. That is right, the competitive bidding is based on
quality and cost effectiveness.
Mr. DOMENICI. That is correct.
Mrs. KASSEBAUM. Yes.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Mr. President, there are an awful lot of points to make in
opposition to this amendment. Let me begin by saying it is very
interesting that those who came here today to defend the Legal Services
Corporation refuse to defend it. The best they can do in the way of
defense is to give us a list of outrageous abuses that they propose
that we try to stop. That is a very weak defense indeed.
But I do not want to begin by talking about legal services, and going
through the list of numerous organizations who support the committee's
position and strongly oppose the Domenici position to bring back a
Federal Legal Services Corporation. There are really several issues in
debate here, and the one I want to begin with is about the choices that
are made to allow Senator Domenici to fund the Legal Services
Corporation at $340 million.
Our dear colleague from South Carolina glosses over those decisions
by simply saying that we are providing a lot of money to fight violent
crime and drugs, and so taking some of that money away from that battle
in order to fund legal services is probably a good thing. This is one
of those occasions where I wish we could sit around the kitchen table
of every working family in America and discuss this issue. If we could,
this amendment, and probably those who advocate it, would be thrown out
of the kitchen. But let me go through the programs that are cut by the
Domenici amendment, and their ramifications.
Because our colleagues are so desirous of preserving the Legal
Services Corporation as a Federal entity, many of them, who have stood
on the floor of the Senate and argued for block granting decisionmaking
back to the States when it served their purpose, now oppose letting
States run a program which is a renegade program, which has abuses that
probably equal or exceed that of any other similar Government program
funded in the modern era by our Government. But let me start by going
through what is being cut, what is being denied to the American people
to provide $340 million to legal services. And then I will try to talk
about why legal services does not deserve the $340 million.
First of all, the Domenici amendment cuts the general legal
activities of the Justice Department by $25,131,000. In listening to
Senator Hollings, you get the idea we are just throwing so much money
at the Justice Department they do not know what to do with it, they
have all the prosecutors they need to prosecute every drug dealer and
every violent criminal in America. The only problem with that argument
is the American people know that does not reflect reality.
In fact, our bill, which Senator Domenici cuts from, already provides
$10 million below the level requested by President Clinton in his
proposed appropriation for the Justice Department. So, before we would
cut the $25 million from the legal activities section of the Justice
Department, as Senator Domenici proposes, we already, because of lack
of funds, had cut it by $10 million.
Where is this money coming from? Since the average person in America
does not understand what the general legal activities of the Justice
Department does, here is what it does.
It prosecutes organized criminals, it prosecutes major drug
traffickers, it prosecutes child pornographers, it prosecutes major
fraud against the taxpayer, it prosecutes terrorism and espionage
cases. These cuts will mean that we will have 200 fewer prosecutors in
America next year, if this amendment passes, who will be prosecuting
organized crime, major drug traffickers, child pornographers, major
fraud against the taxpayer, and terrorism and espionage cases.
I remind my colleagues, we are already providing $10 million less
than what the President has requested. But the Domenici amendment would
further cut the level of funding for those prosecutors to prosecute
organized crime, major drug traffickers, child pornographers, and fraud
against the taxpayer, terrorism and espionage by another $25 million.
Legislating is about choosing. And what the Domenici amendment says
is a federally run Legal Services Corporation, a program that is so
filled with outrageous actions that even in this amendment Senator
Domenici seeks to curb their abuses--the Domenici amendment says that
funding that Federal program is more important than providing
prosecutors to prosecute organized crime and the other crimes that I
have outlined.
The second cut made by the Domenici amendment, in order to fund legal
services, is cutting $11 million from the U.S. attorneys office.
I remind my colleagues, and the American people who might be watching
this debate, that our U.S. attorneys are our first line of defense.
They are the people who try cases in Federal court. They are the people
who prosecute major drug dealers. The amendment that is offered by
Senator Domenici, to preserve the Federal Legal Services Corporation,
will terminate at least 55 assistant U.S. attorneys who otherwise would
have been employed in prosecuting violent criminals and drug felons,
pornographers, and terrorists.
I believe that legislating means making choices. I ask my colleagues,
is preserving the Federal Legal Services Corporation rather than
letting the States run it through a block grant program worth taking 55
assistant U.S. attorneys out of prosecution in America? My answer is
no.
We had a discussion about construction for the FBI. As I read the
amendment, what is being cut here is not crime labs, though I strongly
support them, what is being cut is the very heart of new facilities
construction at the FBI Academy. The Domenici amendment, in the name of
preserving a federally run Legal Services Corporation, a corporation
which as of today has filed a lawsuit against every State in the Union
that is trying to implement welfare reform by requiring welfare
recipients to work, which is funding drug dealers who are trying to
stay in public housing units so that they can more efficiently market
drugs, in seeking the preservation of this Federal program, the
Domenici amendment would require cutting the FBI Academy and its
construction at Quantico by some $49 million.
I have a letter from the head of the FBI. Unfortunately, as Senator
Hollings noted, it is a classified letter. But it is certainly not
classified material that the head of the FBI has said that our
facilities are becoming antiquated; that as we have cut the President's
request for the FBI in recent years, we have not kept up our
infrastructure and that we are not going to be able to maintain our
training if we do not build new facilities. I remind my colleagues that
by a vote of 91 to 8, we passed the Comprehensive Terrorism Prevention
Act, which authorized the expenditure of these moneys. I remind my
colleagues that the FBI Academy does not just train FBI agents and
Federal law enforcement officials, but in fact, last year, it trained
1,225 State and local law enforcement officials.
Obviously, the question that we have to ask is this: Is preserving
the Federal Legal Services Corporation rather than
[[Page S 14591]]
block granting it to the States--as we are block granting aid to
families with dependent children, as we are block granting Medicaid--is
preserving this program as a Federal program run out of Washington, DC,
worth denying the facilities we need in Quantico to train FBI agents
and to train 1,225 State and local law enforcement officials?
Mr. President, my answer to that question is clearly no. Anyone who
has found themselves in the jurisdiction of a Federal court knows that
we have a real problem in the Federal court system because it is very
difficult to get a case to trial.
In terms of getting civil justice, we are now talking about years of
waiting to get a case before the court. In terms of criminal justice,
in bringing violent criminals to justice, we are talking about a long
wait because we do not have enough courts, we do not have enough
judges, and we do not have enough prosecutors.
The Domenici amendment, in order to preserve a federally run Legal
Services Corporation--which is opposed by every organization in America
from the Farm Bureau Federation to Citizens Against Government Waste--
would cut $25 million from our Federal courts. That $25 million, for
example, could fund 400 probation officers to supervise convicted
criminals in America.
I ask my colleagues, is it worth denying 400 probation officers
supervising criminals in order to fund the Federal Legal Services
Corporation? My answer is no. Let me remind my colleagues that the
funds that would be cut include funds that provide mandatory drug
testing for all convicts who are released to assure that while they are
on parole and on the streets, they remain drug free. Is a cut in
funding for this program worth making to preserve a federally funded
Legal Services Corporation? My answer is no.
Mr. President, there are a lot of other programs that have been cut
here. Strong cases can be made for them. I want to make one more case.
It is not a case that is going to sway anybody because if you are not
swayed by these other cuts, then you are not going to be swayed by
this. If you have long ago decided that this agency we call Legal
Services, which has such a poor record that not even those who would
fund it can defend it, then no amount of prosecutors, no amount of
training police officers, no amount of drug testing for convicted
felons who are walking the streets on probation, no amount of
supervision is going to change your position.
But I do want to mention one other offset which very few people find
moving, but I think it is important; that is, substantial cuts in
census are included in this offset. Most people do not understand the
census. It is obvious that Alan Greenspan understands the census
because Alan Greenspan, in testimony before the Banking Committee,
asked that we fully fund data gathering. The apportionment of
population in terms of measuring the number of people in America to
decide how many Congressman each State has depends on the census.
The allocation of funding for programs, from the FBI to the new
Medicaid Program to virtually every other program undertaken by the
Federal Government, depends on the census. We are getting ready to have
the 2,000 census, the millennium census. It is the only millennium
census that we are ever guaranteed to take in the United States of
America. I hope it will be the first of many. But this is a critically
important census.
If we take the recommendations of Senator Domenici and we cut funding
for this census, we are going to have to make the funding up in future
years as we get closer to the year 2000. If we make this cut now, the
2000 census will be more inefficient. It is going to cost more money.
And I do not believe that this is an exchange that should be made.
Let me talk about the amendment itself, and then turn to the Legal
Services Corporation.
It is interesting to me that this amendment has a great big budget
gimmick in it. And the great big budget gimmick in it is that it has a
delayed obligation. For those who do not understand what that means,
let me try to explain. One of the things some people often do in
Congress when they want to spend money but do not want people to know
that they are spending money is to use a delayed obligation, which
means they provide money but do not let the money kick in at the
beginning of the fiscal year. In this case, the money would kick in a
month from the end of the fiscal year, on September 1, so that there is
a huge surge of $115 million that would become available on that date,
30 days before next year's budget would have to be written.
Now, what is the purpose of this budget gimmick? The purpose of this
budget gimmick is not only to commit a huge surge of contracts for
legal services a month before the new budget, but it also makes it
difficult next year for us not to fund those programs because they will
already be underway, and so when the chairman of this subcommittee next
year writes a budget, that chairman will be looking at $115 million of
programs that will kick in just 30 days before the end of the fiscal
year.
What is the purpose of this gimmick which we have denounced over and
over and over again? I have heard many Members of the Senate stand up
and denounce these delayed obligations as basically perverting the
budget process itself.
What is the purpose of this? The purpose of this is basically to try
to get the level of spending in this program up at the end of the year
so that next year it will be harder to achieve the savings to which we
have already committed in trying to achieve our balanced budget.
Let me talk about legal services, and I want to begin by asking
unanimous consent that letters from the Citizens Against Government
Waste in opposition to any attempt to restore or increase funds to the
Legal Services Corporation, the Christian Coalition, the American Farm
Bureau, the Family Research Council, the Traditional Values Coalition,
the Coalition for America, the Eagle Forum, that these letters strongly
opposing the Domenici amendment and supporting the action of the
committee be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
Letters in Opposition to the Legal Services Corporation
Council for Citizens
Against Government Waste,
Washington, DC, September 20, 1995.
Dear Senator: The Council for Citizens Against Government
Waste (CCAGW) and our 600,000 members support H.R. 2076, the
Commerce, Justice, State, and the Judiciary Appropriations
for FY 1996. CCAGW commends Subcommittee Chairman Phil Gramm
and Appropriations Chairman Mark Hatfield for sending to the
floor a bill which spends $4.6 billion less than the budget
request and $1 billion less than the House version of H.R.
2076.
The $26.5 billion spending bill prioritizes the budgets for
each agency under its jurisdiction. For example, the Justice
Department receives $15 billion for FY 1996, almost $3
billion more than in FY 1995, to fight our nation's crime
problem. But with a nearly $5 trillion national debt, there
is always more to cut from spending bills.
CCAGW supports the following amendments:
The McCain amendment to mandate the Federal Communications
Commission to auction the one remaining block of Direct
Broadcast System spectrum. If this spectrum is auctioned,
communication industry experts believe it will sell for
between $300 to $700 million. It is in the best interest of
the American people that the spectrum be sold at public
auction.
The Grams amendment to eliminate the East-West Center and
the North/South Center, saving taxpayers $11 million next
year.
CCAGW opposes the following amendments:
Any attempt to restore or increase funds to the Federal
Maritime Administration.
The Inouye amendment to restore funds to the Federal
Maritime Administration.
The Bumpers amendment to restore funds for the Small
Business Administration.
The Bumpers amendment to restore funds for the Death
Penalty Resource Centers.
CCAGW urges you to support these amendments and H.R. 2076.
It prioritizes cuts while ensuring that state and local law
enforcement agencies are properly funded. CCAGW will consider
these votes for inclusion in our 1995 Congressional Ratings.
Sincerely,
Thomas A. Schatz,
President.
Joe Winkelmann,
Chief Lobbyist.
[[Page S 14592]]
Christian Coalition,
Washington, DC, September 14, 1995.
Re Key Vote Notice: Eliminate Legal Services Corporation--
Support Block Grants for LSC.
Dear Senator: The Senate will soon consider the FY 1996
Appropriations for Commerce, Justice, State and Judiciary. On
behalf of the 1.7 million members and supporters of the
Christian Coalition, I urge you to vote against any
amendments that would weaken the committee-approved provision
regarding the block grant for Legal Services Corporation
(LSC).
LSC is a failed agency. Elimination of the Corporation and
instead providing legal services to the poor through block
grants to the States, as the Appropriations Committee
approved, is the minimum that Congress can do to begin to put
an end to the well known abuses of the Corporation. The block
grant alternative provides a better delivery system for legal
services to the poor and breaks up the monopoly currently
enjoyed by the Corporation.
Christian Coalition opposes any amendments that would
restore the Corporation, increase funding or in any way water
down the restrictions currently provided for in the bill.
Before the 1996 election, Christian Coalition will distribute
50-60 million voter guides and congressional scorecards.
Weakening amendments regarding LSC will be key votes.
Thank you for your consideration of our views.
Sincerely,
Brian C. Lopina,
Director, Governmental Affairs Office.
____
American Farm Bureau Federation,
Washington, DC, September 18, 1995.
Hon. Spencer Abraham,
U.S. Senate, Washington, DC.
Dear Senator Abraham: In a very short time, the Senate will
consider H.R. 2076, the Commerce, Justice, State
Appropriations bills, as amended by the Senate Commerce,
Justice, State Appropriations subcommittee. The portions of
this bill which pertain to delivery of legal services for the
indigent will create an entirely new program for this
purpose. This program is designed to function, much like
public defender programs which provide legal representation
for indigent criminal defendants. We believe this program
will meet the goal of ensuring civil legal assistance for the
poor without the many problems which have plagued the Legal
Services Corporation since its inception in 1974. With
specific respect to the delivery of legal aid to the
indigent, we urge you to support H.R. 2076 as reported by the
Appropriations Committee.
The operative provisions of H.R. 2076 with respect to legal
services were modeled on a bill introduced by Rep. George
Gekas (R-PA) and recently reported to the House by the
Judiciary Committee. This legislation was carefully crafted
to ensure that the federal program would finance
representation for causes of action for which there is no
other provision for payment of attorney's fees, or where it
is highly unlikely that the ``target'' would have resources
with which to pay attorney's fees. Thus, the bill did permit
grantee attorneys to pursue ``deadbeat dad'' cases, but not
employment law cases (because most employment discrimination
and other types of employment laws provide for the recovery
of attorney's fees for a successful plaintiff). We urge you
to oppose any effort to add to the bill provisions allowing
causes related to employment law, constitutional challenges,
and consumer fraud.
We believe the Gekas legal services bill, as included in
H.R. 2076, will create a federal program that will provide
basic legal services for indigent people.
Dean Kleckner,
President.
____
Family Research Council,
September 14, 1995.
Dear Senator: On behalf of the more than 250,000 families
which the Family Research Council represents, I would like to
urge you to expedite the intent of the House-passed budget
resolution by declining to reauthorize the Legal Services
Corporation (LSC). Reform of the Corporation is not an
acceptable option due to the fact that it has not been
successful within the last fifteen years, particularly since
liberal activists who favor a militant agenda have been
charged with the oversight of the program. Past experiences
have shown that merely adding restrictions to the program is
a futile gesture.
The LSC was created to perform legal services for the poor
and the underprivileged, yet the liberal agenda of its
proponents has overtaken for its original mission. The
antifamily litigation that the LSC supports is appalling. We
have found cases where LSC has litigated with a pro-abortion
agenda, they have been active in blocking attempts to reform
welfare, aiding the homosexual agenda, supporting the notion
that children have rights independent of their parents, and
representing convicted criminals in civil cases.
The Legal Services Act, as amended in 1977 and in
subsequent appropriations acts, prohibit LSC from being
involved in abortion related cases. Nonetheless, LSC has
remained firmly committed to abortion on demand and has
worked around the law in an attempt to secure unlimited
taxpayer-funded abortions. LSC has worked against waiting
periods, physicians' consent, parental consent, parental
notification and spousal notification. This blatant disregard
for the congressional intent is another facet in the argument
to not reappropriate.
Attempts to reform LSC have failed and it should be
abolished. During consideration of the Commerce-Justice-State
Appropriations bill, the Appropriations Committee passed a
compromise proposal that provides $210 million for state
level legal assistance in FY 1996. While we believe that
these funds would be better dedicated to deficit reduction,
we can accept the Committee's action. I strongly urge you to
oppose any effort that may be made to undermine the
Committee's proposal through the amendment process, including
efforts to restore funding for the fatally flawed Legal
Services Corporation.
Sincerely.
Gary L. Bauer,
President.
____
Christian Coalition et al.,
September 14, 1995.
U.S. Senate,
Washington, DC.
Dear Senator: The Senate will soon be voting on the
Commerce, Justice State and Judiciary Appropriations bill.
The subcommittee bill includes a proposal to provide legal
services to the poor through a state administered grant
structure, rather than through the Legal Services
Corporation.
On behalf of the millions of members of our collective
organizations, we strongly urge you to vote in favor of the
state grant proposal. Here are several strong reasons to
support a state grant rather than the Legal Services
Corporation:
There is accountability. Attorneys are required to keep
time records. These records are subject to audit. Currently,
Legal Services Corporation grantees are accountable to no
one--no time records, no audits. That leads to mischief.
Attorneys will receive funds after they perform legal
services, not before. Currently, Legal Services Corporation
grantees receive a pot of money up front, and spend it as
they see fit without accountability. That lead to mischief.
The state grant proposal breaks up the Legal Services
monopoly. It enables attorneys and law firms all across
America to openly compete for legal services contracts. If
ever there was a case for open competition and against a
monopoly, this is it. The Legal Services Corporation has not
credibility when it comes to being wise stewards of the
taxpayer's money.
The state grant proposal restricts the legal causes of
action for which taxpayer funds can be used to a specified
list of noncontroversial legal needs such as bankruptcy
actions and cases of spousal abuse. There would be no more
taxpayer funded lawsuits related to abortion, labor strikes,
etc.
Restrictions to prohibit mischief are included. There would
be no more taxpayer-funded lobbying, grass roots organizing,
class action lawsuits, etc.
We strongly urge you to vote against any amendments to
strip out the bill's state grant proposal for legal services.
Thank you for your consideration.
Sincerely,
Christian Coalition,
Family Research Council,
Traditional Values Coalition,
Eagle Forum,
Concerned Women for America,
American Family Association,
Life Advocacy Alliance.
____
Coalitions for America,
Washington, DC, June 28, 1995.
Hon. Robert Dole,
U.S. Senate,
Office of the Majority Leader,
Washington DC.
Hon. Newt Gingrich,
House of Representatives,
Office of the Speaker,
Washington DC.
Dear Bob and Newt: In the budget-cutting atmosphere on
Capitol Hill these days, it is important not to overlook the
Legal Services Corporation. Here the need is not merely to
cut some of its programs, reduce its budget or to try yet
again to reform it, but rather to eliminate it entirely. This
year, President Clinton has proposed $415 million for the
Legal Services Corporation budget. That amount, however
significant, pales in comparison to the trouble and expense
this agency causes.
The agency charged with providing legal services for those
who could not afford to pay for them instead because a hotbed
of judges and legal activities who used their authority to
interpret the law to fit their personal ideology. The Legal
Services Corporation has an agenda that includes providing
benefits for illegal aliens, alcohol and drug addicts, and
criminals. It accomplishes this task by suing any and all
levels of government to prevent them from putting the brakes
on any kind of welfare spending, and indeed to increase
welfare benefits whenever and wherever it can do so.
Here are some examples of the Legal Services Corporation at
work:
In 1992, Southern Minnesota Regional Legal Services won
disability benefits for a 40-year old heroin addict by
making the case that his addiction kept him from being
able to work.
In North Carolina, an LSC grantee stopped the eviction from
a public housing unit of a tenant who had shot and killed a
child in the complex.
[[Page S 14593]]
The LSC has blocked eviction of drug dealers from public
housing units on technicalities such as the charges being
``too vague.''
In Virginia, a public housing tenant who had acted in a
violent and dangerous manner won her case with aid from LSC
because some minor mistakes were made in the attempted
eviction.
In addition, the LSC has blocked efforts by states to
establish paternity for child support payments, opposed
Medicaid program cuts, and demanded that criminals in mental
health facilities be granted the right to vote.
In short, the Legal Services Corporation has sought to
subvert every federal, state or local effort to penalize,
restrict, reform or otherwise hold accountable an individual
for his or her behavior. Measured by the exact nature of its
``legal services,'' it has been estimated that the true cost
of the Legal Services Corporation since its founding has been
some two trillion dollars, with no end in sight.
We understand that in normal Congressional politics it is
easier to reduce an agency's funding than to eliminate
entirely both the funding and the agency. In this case,
however, no other solution will do. The Legal Services
Corporation is wholly bad, and if now, in the time of a
Republican majority in both Houses of Congress, it is merely
reduced, it will certainly spring back to life later with
greater vigor. It must be killed, dead.
We stand ready and willing to work with the leadership of
both Houses in pursuing this objective, but we will accept no
lesser goal nor outcome. Quite simply, if the Legal Services
Corporation is not eliminated in this year's budget--funded
at zero--we cannot be credible in arguing to our members and
supporters that the Republican Party means that it says about
creating change in Washington.
Sincerely,
Paul Weyrich,
National Chairman.
coalitions for america members
Morton C. Blackwell, VA GOP National Committee.
Andrea Sheldon, Traditional Values Coalition.
------ ------, National Center for Policy Analysis.
Amy Moritz, National Center for Public Policy Research.
Mike Korbuy, United Seniors Association.
Penny Young, Concerned Women for America,
Ronald W. Pearson, Conservative Victory Fund.
Brian W. Jones, Center for New Black Leadership.
Joan L. Hutu, American National Council for Immigration
Reform.
Brian Lopina, Christian Coalition.
D. Scott Peterson, Conservative Victory Committee.
------ ------, Association of Concerned Taxpayers.
Martin Hoyt, American Association of Christian Science.
Major F. Andy Messing, Jr., USAR (ret.), National Defense
Council Foundation.
Martin Mawyer, Christian Action Network.
Peter T. Flaherty, Conservative Campaign Fund.
Kenneth F. Boehm, National Legal and Policy Center.
------ ------, The Conservative Council.
Karen Kerrigan, President, Small Business Survival
committee.
Fred L. Smith, Jr., Competitive Enterprise Institute.
James Wootton, Safe Streets Coalition.
------ ------, Eagle Forum.
James L. Martin, 60 Plus Association.
Grover G. Norquist, President, Americans for Tax Reform.
Michael Farris, President, Home School Legal Defense
Association.
Kevin L. Kearns, President, United States Business and
Industrial Council.
Michael E. Dunker, Family taxpayer's Network.
Grant Danes, Assistant Director, Christian Network
Association, Inc.
Mr. GRAMM. Mr. President, I think it would be useful for the American
people to get some idea what the Legal Services Corporation is doing.
The Heritage Foundation has put together a list of lawsuits that
describe the horror stories that have come into existence as a result
of the Legal Services Corporation and its actions. Let me just read the
first one, but I am going to ask that all of these be put in the
Record. The first one is a Georgia Legal Services lawsuit June 15,
1995. Here is a short summary.
The Legal Services Corporation defended a Miss Whitehead from
eviction after crack cocaine was found in her apartment, arguing that
she had not violated her lease because she was not present at the time
the search warrant was executed.
I have page after page after page of these horror stories, and let me
turn to the last page. Here is a lawsuit--I will just pick the second
one on the page. The Legal Services Corporation sued to obtain
unemployment benefits for a teacher fired for drug possession, arguing
that the teacher had not lost his job through misconduct.
I am perfectly aware--and I do not want anybody to be confused--that
Senator Domenici has nothing like the restrictions on legal services
that I would impose in the committee bill, but he cannot stand here and
defend the Legal Services Corporation, and instead he has proposed
limiting actions they can take.
I should like to remind my colleagues that this is the same Legal
Services Corporation that President Reagan was not able to rein in as a
Federal program. I am hopeful that if the amendment is successful,
which I hope it will not be, we can at least enforce some of these
restrictions.
I also can go through other examples of Legal Services misconduct.
Let me just pick one here on agriculture because the American Farm
Bureau very strongly opposes this amendment. This is a lawsuit filed by
the Legal Services Corporation on June 23, 1995. All these examples are
from this year or last year. You do not have to go back 20 years to
find horror stories.
The Legal Services Corporation sued a tomato farmer, the neighbor who
rented the labor camp to the farmer, their crew leaders, and the tomato
packing company when a farm worker got injured while reaching under a
moving truck at a labor camp.
Every day in America the Legal Services Corporation is hassling
American agriculture.
Mr. President, I ask unanimous consent that this very short, concise
list of abuses, most of which occurred in 1994 and 1995, be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
LSC LITIGATION HORROR STORIES
------------------------------------------------------------------------
LSC grantee and source Description
------------------------------------------------------------------------
DEFENDING CRIMINAL ACTIVITY
Legal Services Corporation litigation has prevented public housing
authorities from evicting drug dealers in Georgia, New York, Florida,
and Connecticut. The LSC has also defended tenants who engage in the
malicious destruction of property in public housing projects. Finally,
one LSC grantee even contested the eviction of a tenant whose son had
shot and killed a child living in a neighboring apartment in the
complex. Query: How does this sort of litigation improve the lives of
poor people?
------------------------------------------------------------------------
Georgia Legal Services: Macon Defended against eviction of
Housing Authority v. Tabitha Tabitha Whitehead after crack
Whitehead: Testimony by John cocaine was found in her
Hiscox before House Jud. apartment, arguing that she had
Subcommittee on Commercial and not violated her lease because she
Adm. Law (June 15, 1995). was not present at the time the
search warrant was executed.
LSC grantee:.......................
Testimony by Michael Policy Public Housing Authority (PHA)
Pileggi before House Jud. prevailed in evicting Victoria W.
Subcommittee on Commercial and following the confiscation of 66
Adm. Law (June 15, 1995). vials of crack cocaine in her
unit. To avoid eviction, legal
services filed a chapter 7
bankruptcy petition on her behalf
that led to an automatic stay.
Wexford Ridge Associates v. Defended against an eviction for
Bankston (1993): ``The Real drug dealing, arguing that a
Cost...''., by Phillips and notice stating the tenant was
Ferrara. ``dealing cocaine out of your
unit'' was too vague.
Housing Authority of Norwalk v. Defended against the eviction of a
Harris, Conn. Super. No. SPNO man whose daughter was selling
9009-10295 (1993). drugs on the property, claiming
that he was not aware of the
activity.
Charlotte Housing Authority v. Defended against eviction even
Patterson (1994): ``The Real though the tenant's son had shot
Cost . . .'', by Phillips and and killed a child who had been
Ferrara. living in another apartment in the
complex.
Moore v. Housing Authority of Successfully argued that the local
New Haven Connecticut Conn. Public Housing Authority (PHA)
Super. Ct. (1993): ``The Real must repair apartment damage even
Cost...'', by Phillips and though it was caused by the tenant
Ferrara. or her guests.
Georgia Legal Services:
Macon Housing Authority v Tina Defended against eviction of Tina
Burke: Testimony by John Burke after drug dealing was
Hiscox before House Jud. observed in her apartment, arguing
Subcommittee on Commercial and that she did not violate her lease
Adm Law (June 15, 1995). because she was not in possession
of crack cocaine or cash at the
time of the arrest.
Macon Housing Authority v. Defended Patricia Osborne from
Patricia Osborne: Testimony by being evicted after undercover
John Hiscox before House Jud. officers purchased crack cocaine
Subcommittee on Commercial and outside her back door.
Adm. Law (June 15, 1995).
Macon Housing Authority v. Enga Fought the eviction of Enga Scott
Scott: Testimony by John and her son Shon after Shon pled
Hiscox before House Jud. guilty to possession of cocaine
Subcommittee on Commercial and with intent to distribute.
Adm. Law (June 15, 1995).
Neighborhood Legal Services: Has repeatedly defended tenants in
Testimony by Harriet Henson before Pittsburgh from eviction for
House Jud. Subcommittee on reasons including tearing up the
Commercial and Adm. Law (June 15, property, violating the lease
1995). (having dogs), and dealing drugs
in their apartments.
Legal Services of Greater Miami: Argued that a landlord of a
Furr v. Simmons (1993): ``The Real government-subsidized housing
Cost...'', by Phillips and Ferrara. facility in Florida could not
evict a tenant whose daughter was
dealing drugs on the premises
because he had prior knowledge of
the drug activity and had failed
to take action to stop it.
LSC grantee: Buffalo Municipal Successfully argued that a public
Housing Authority v. Jones (1993): housing tenant in New York who had
``The Real Cost...'', by Phillips engaged in criminal or drug
and Ferrara. activity could not be evicted
without 30 days prior notice.
Connecticut Legal Services: Stopped termination of a tentant's
Edgecomb v Housing Authority, U.S. housing subsidy for drug related
Dist. Ct. for the District of criminal activity because the
Conn. (1994): ``The Real tentant had not been allowed to
Cost...'', by Phillips and Ferrara. confront and cross-examine
witnesses. Legal service lawyers
were awarded $20,000 for this
case.
LSC grantee: Allen v. Great Defended a tenant against eviction
Atlantic Management Co. (1993): who had engaged in violent and
``The Real Cost...'', by Phillips destructive conduct on the
and Ferrara. property.
[[Page S 14594]]
FAMILY CASES
Legal Services Corporation attorneys have provided legal assistance to
the poor in some very curious ways. LSC grantees have filed suits
arguing that unemancipated minors have a right to their own public
housing units, that children should be able to terminate their parents'
rights over them, and that homosexuals should be able to adopt children.
------------------------------------------------------------------------
Lehigh Valley Legal Services: Represented a 16-year-old juvenile
Testimony by Kenneth Boehm before delinquent in his quest to retain
House Jud. Subcommittee on parental rights to the child he
Commercial and Adm. Law (June 15, fathered by raping a 13-year-old
1995). The Morning Call (March 2, girl. The father had a history of
1995). other criminal offenses and has
repeatedly failed to comply with
his probation.
Legal Service of Greater Miami: Cox Represented two homosexuals in
v. Florida 656 So.2d. 902 (1995). their fight to overturn a Florida
law that prohibits homosexuals
from adopting a child.
Idaho Legal Services: Testimony by Sued on behalf of the Ogala Sioux
Kenneth Boehm before House Jud. Tribe for custody of a 4-year-old
Subcommittee on Commercial and boy who has lived with his
Adm. Law (June 15, 1995). adoptive family since he was born.
The tribe claimed rights because
the boy is half-Sioux. The boy's
family had to sell their home to
raise money for the case.
Legal Services of Greater Miami: K Argued that children should be able
v. K (1992): ``The Real Cost of to sue to terminate their parents
the Legal Services Corporation,'' rights over them.
by Howard Phillips (Conservative
Caucus) and Peter Ferrara
(National Center for Policy
Analysis), June 14, 1995.
Central Pennsylvania Legal Sued to force the Reading (PA)
Services: Rodriques v. Reading Housing Authority to accept as
Housing Authority 8 F.3d. 961 tenants minors who had not been
(1993): ``The Real Cost . . .'', emancipated from their parents.
by Phillips and Ferrara.
Legal Services Organization of Sued the state to stop termination
Indiana: Indiana Dept. of Public of AFDC benefits to a parent whose
Welfare v. Hupp 605 N.E.2d 768 children had been removed from her
(1993). home by the state because she had
failed to exercise responsibility
for the day-to-day care and
control of the children.
CHILD SUPPORT
Legal Services Corporation grantees have successfully blunted efforts by
North Dakota and Michigan to require welfare mothers to identify the
deadbeat dads of their children to welfare officials.
Legal Assistance of North Dakota: Successfully argued against states
S. v. North Dakota Department of requiring mothers receiving
Human Services 499 N.W. 2d. 891 welfare subsidies to identify the
(1993). fathers so the state can pursue
him for child support.
Oakland Livingston Legal Aid in Successfully argued against states
Michigan: In Re Schirrmacher requiring mothers receiving
(1993): ``The Real Cost . . .'', welfare subsidies to identify the
by Phillips and Ferrara. fathers so the state can pursue
him for child support.
HOUSING
Legal Services Corporation grantees have sued state and local
governments to demand expensive new housing ``rights.'' These rights
include more government subsidized housing, higher rental allowances,
and payment of child care, furniture storage and transportation
expenses. LSC grantees have also attempted to silence ordinary citizens
who oppose the placement of housing for drug addicts and the mentally
ill in their neighborhoods.
------------------------------------------------------------------------
LSC grantee:
Herrara v. City of Oxnard Sued City of Oxnard (CA) to demand
(1994): ``The Real Cost . . more government subsidized
.,'' by Phillips and Ferrara. housing.
Lubold v. Snider (1993): ``The Suit against Pennsylvania arguing a
Real . . .,'' by Phillips and ``right to shelter'' provided by
Ferrara. the government.
Legal Aid Society of NYC: McCain v. Suit against New York City arguing
Dinkins 84 NY 2d. 216 (1994). a ``right to shelter'' provided by
the government.
Coalition to End Homelessness w/Amy Suit against New Haven (CT) arguing
Eppler-Epstein, Esq.: Hilton v. a ``right to shelter'' provided by
City of New Haven 233 Conn. 701 the government.
(1995).
LSC grantee: Jiggetts v. Perales Sued New York City to establish
202 A.D. 2d. 341 (1992). higher rental allowances.
Cambridge and Somerville Legal Sued to stop reductions in monthly
Services: Aguirre v. Gallant rental allowances in
(1993): ``The Real Cost . . .,'' Massachusetts.
by Phillips and Ferrara.
Western Massachusetts Legal Demanded under an emergency housing
Services: Berrios v. Gallant assistance program in
(1991): ``The Real Cost . . .,'' Massachusetts for furniture
by Phillips and Ferrara. storage, moving expenses, child
care, transportation, and more.
National Center for Youth Law: Argued that citizens could not
Testimony by Kenneth Boehm before oppose the establishment of
House Jud. Subcommittee on housing in their neighborhood for
Commercial and Adm. Law (June 15, recovering drug addicts and the
1995). mentally ill.
LSC grantee: Testimony by Michael Claimed that PHA failed to timely
Pileggi before House Jud. transfer Christine L. from a five-
Subcommittee on Commercial and bedroom unit to a six-bedroom unit
Adm. Law (June 15, 1995). even though PHA has a limited
number of six-bedroom units and,
in fact, was able to transfer her
within seven months of her initial
request.
Community Legal Services Inc., of Sued Philadelphia Housing Authority
Philadelphia, PA: Gwendolyn Smith on behalf of Gwendolyn Smith,
v. Philadelphia Housing Authority claiming PHA failed to perform
U.S. Dist. Ct. for the Eastern over 20 repairs in her unit. An
Dist. of PA. (1995): Testimony of investigation showed that much of
Mike Pileggi before House the damage was caused by the
Judiciary Subcomm. on Commercial tenant (fire damage, holes punched
and Adm. Law (June 15, 1995). in walls and doors).
Community Legal Services: Lupina Represented Lupina R. in a civil
Rainey v. Philadelphia Housing rights lawsuit against PHA even
Authority U.S. Dist. Ct. for the though they suspected her for
Eastern Dist. of PA. (1993): engaging in criminal conduct
Testimony of Mike Pileggi before including dealing drugs, extorting
House Judiciary Subcomm. on money, loan sharking, and filing
Commercial and Adm. Law (June 15, bogus bankruptcies on behalf of
1995). PHA tenants.
LSC grantee: Testimony of Mike Filed suit against Philadelphia
Pileggi before House Jud. Housing Authority on behalf of
Subcommittee on Commercial and Krissy J., claiming that a $50
Adm. Law (June 15, 1995). check owed to her was not timely
processed. The case was settled
immediately, yet PHA had to pay
over $500 in attorney's fees to
legal services.
CRIMINAL RIGHTS
Legal Services Corporation grantees have pursued a number of novel
theories all designed to broaden the rights of convicted criminals. In
one instance, an LSC grantee challenged Washington state's reform of its
parole laws that would have ensured longer sentences for convicted
criminals.
------------------------------------------------------------------------
LSC grantee:
Decker v. Wood (1992): ``The Sued to demand that criminals in a
Real Cost...'', by Phillips mental health facility be allowed
and Ferrara. to vote.
Thorton v. Sullivan U.S. Dist. Sued to obtain Social Security
Ct. for the District of disability benefits for a thief
Alabama: Testimony by Dean who was injured while committing
Kleckner before Senate the crime.
Committee on Labor and Human
Resources (June 23, 1995).
Evergreen Legal Services: Powell v. Sued to prevent changes in the
Du Charme (1993): ``The Real Washington parole laws from being
Cost...'', by Phillips and Ferrara. applied to those currently in
prison. The reformed laws would
have ensured longer sentences for
convicted criminals.
National Legal Aid and Defender NLADA was the only group to oppose
Association: Testimony by Kenneth a bill (passed the House by a vote
Boehm before House Jud. of 432 to 0) requiring criminals
Subcommittee on Commercial and to pay compensation to their
Adm. Law (June 15, 1995), The New victims. NLADA represents legal
York Times (Feb. 8, 1995). services lawyers and receives
substantial funding from LSC
grantees.
Georgia Legal Services: Testimony Filed petitions to get the release
by Kenneth Boehm before House Jud. of David Naggel from a maximum
Subcommittee on Commercial and security mental hospital. Nagel
Adm. Law (June 15, 1995), Los was imprisoned for murdering both
Angeles Times (Nov. 12, 1994). of his grandparents when they
refused to give him the keys to
their car.
Greater Orlando Area Legal Sued Orange County on behalf of 18
Services: Testimony by Kenneth former inmates to eliminate
Boehm before House Jud. segregation of inmates based on
Subcommittee on Commercial and whether or not they have been
Adm. Law (June 15, 1995), The exposed to the AIDS virus.
Orlando Sentinel (Sept. 30, 1994). Infected inmates were returned to
the general inmate population
without notification to other
inmates.
Legal Assistance Foundation of In pioneering ``inmates rights,''
Chicago: Duran v. Elrod 760 F. 2d. this case set a legal precedent
756 (1985). that has resulted in cable
television and expensive weights
rooms in prisons.
ALIENS
Legal Services Corporation grantees have filed lawsuits arguing that
aliens, both legal and illegal, are eligible for welfare benefits,
Medicaid, Social Security disability benefits and food stamps. In one
lawsuit, an LSC attorney argued that an alien who was deported twice for
criminal activity was entitled to Social Security retirement benefits.
LSC grantee: Graham v. Richardson Argued that states may not deny
403 U.S. 365 (1991). welfare benefits to aliens.
Gulfcoast Legal Services: Smart v. Sued to obtain Social Security
Shalala 9 F.2d. 921 (1993). retirement benefits for an illegal
alien who had been deported twice
for criminal activity.
Pine Tree Legal Assistance of Sued to obtain Social Security
Maine: In Re Doe (1992): ``The disability benefits for an alien
Real Cost...'', by Phillips and seeking political asylum.
Ferrara.
Western Reserve Legal Services in Sued to obtain AFDC, Medicaid, and
Ohio: Joudah v. Ohio Department of food stamp benefits for an alien
Human Services 94 Ohio App. 3d. family seeking political asylum.
614 (1994).
Legal Aid Society of San Mateo Filed suit to force California to
County: Gillen v. Belshe (U.S. Ct. provide health services, welfare,
App. for the First Circuit): and food stamps while deportation
Testimony by Dean Kleckner before proceedings are pending.
Senate Committee on Labor and
Human Resources, (June 23, 1995).
California Rural Legal Services: Sued to prevent enforcement of INS
Naranjo-Aguilera v. INS 30 F.3d. regulations that would deny aliens
1106 (1994). the right to participation in an
agriculture program if they have
been convicted of a felony or two
misdemeanors.
California Rural Legal Assistance: Sued to challenge regulations
Catholic Social Services v. Reno: governing the twelve month amnesty
Testimony by Dean Kleckner before program enacted by Congress that
Senate Committee on Labor and requires illegal aliens to
Human Resources (June 23, 1995). demonstrate that they lived
continuously in the U.S. from Jan.
'82 until Nov. '86 and that they
are financially responsible.
California Rural Legal Assistance: Sued to challenge regulations
Zambrano v. INS 972 F.2d. 1122 governing the twelve month amnesty
(1992). program enacted by Congress that
requires illegal aliens to
demonstrate that they lived
continuously in the U.S. from Jan.
'82 until Nov. '86 and that they
are financially responsible.
WELFARE
Legal Services Corporation grantees have won hundreds of billions of
dollars in expanded rights to welfare benefits. In recent years, the LSC
has sought to obstruct or stop welfare reform in nearly every state in
which it has been attempted, including New Jersey, Michigan, Ohio,
Minnesota, New York and California. What follows are but a few examples
of litigation inspired by LSC grantees in this area:
------------------------------------------------------------------------
Legal Services of New Jersey: C.K. Sued the state and federal
v. Shalala (1994). government when they adopted a
welfare experiment to eliminate
routine increases in welfare
subsidies to recipients having
children.
Michigan Legal Services: Babbitt v. Sued the state when AFDC benefits
Michigan Department of Social were reduced in 1992 under an
Services (1991): ``The Real appropriations bill requiring
Cost...'', by Phillips and Ferrara. statewide across-the-board budget
cuts.
Legal Aid Society of Cincinnati& Sued Ohio to stop reductions in the
Legal Aid Society of Dayton: state's General Assistance
Daugherty v. Wallace 87 Ohio App. benefits. They argued there is a
3d. 228 (1993). right to welfare under the state's
Constitution.
National Center for Youth Law: Sued Arkansas to force the state to
Angela R. v. Clinton 999 F.2d. 320 expand its child welfare system.
(1993).
Kansas Legal Services: Allen v. Won full SSI benefits for a
Sullivan (1991): ``The Real claimant on the grounds that the
Cost...'', by Phillips and Ferrara. room and board his mother provide
could not count as income because
it would have to be repaid.
LSC grantee:
In Re Leistner (1994): ``The Won public assistance for a minor
Real Cost...'', by Phillips even though the parents' home was
and Ferrara. available and won the claim that
applicants were not required to
pursue potential alternative
resources as a condition of
eligibility for food stamps.
Bland v. New Jersey Department Won continued AFDC benefits for a
of Human Services (1993): recipient who became a VISTA
``The Real Cost...'', by volunteer rather than get a job.
Phillips and Ferrara. The stipend she received from
VISTA was excluded from her income
in calculating AFDC eligibility.
National Peurto Rican Coalition Demanded expansion of the
v. Alexander (1992): ``The Department of Education's
Real Cost...'', by Phillips vocational education program
and Ferrara. regardless of the availability of
Federal funds.
Western Massachusetts Legal
Services:
Testimony by Kenneth Boehm Filed suit on behalf of Arthur
before House Jud. Subcommittee Cooney to get him back on welfare
on Commercial and Adm. Law after he spend the $75,000 he won
(June 15, 1995), USA Today in a lottery. Most of his winning
(Jan. 10, 1995). went to drugs and gambling.
Testimony by Kenneth Boehm Published a brochure detailing how
before House Jud. Subcommittee to take advantage of a welfare
on Commercial and Adm. Law rule allowing recipient to collect
(June 15, 1995), Readers cash windfalls without losing
Digest (July 1994). public assistance for more than a
month.
Southern Minnesota Regional Legal Successfully struck down 6-month
Services: Mitchell v. Stetfen residency requirement for General
(1992): ``The Real Cost...'', by Assistance benefits in Minnesota.
Phillips and Ferrara.
Monroe County Legal Assistance Brought suit against residency
Corp.: Aumick v. Bane (1993): requirement for receiving New York
``The Real Cost...'', by Phillips General Assistance benefits.
and Ferrara.
Legal Aid Society of San Mateo Sued to strike down a one-year
County: Green v. Anderson (1993): residency requirement for full
``The Real Cost...'', by Phillips AFDC benefits.
and Ferrara.
MEDICAID
Legal Services Corporation grantees have sought, and often won,
expensive expansions of the Medicaid programs in states such as
California, Vermont, Pennsylvania, Missouri, New York, and Maine.
------------------------------------------------------------------------
LSC grantee: Clark v. Cage (1993): Successful suit against California
``The Real Cost . . .'', by demanding increased benefits under
Phillips and Ferrara. the state's Medicaid program. The
LSC grantee won $1.2 million in
legal fees.
Vermont Legal Aid: Garrett v. Dean Sued to stop a 2% cut in Vermont's
(1993): ``The Real Cost . . .'', Medicaid program.
by Phillips and Ferrara.
[[Page S 14595]]
LSC grantee: Felix v. Casey (1993): Sued Pennsylvania to challenge
``The Real Cost . . .'', by limits on cold medications and
Phillips and Ferrara. dental services under state
Medicaid program.
Legal Services of Eastern Missouri: Brought suit against Missouri
Nemnich v. Strangler (1992): ``The challenging limits on the services
Real Cost . . .'', by Phillips and provided under state Medicaid
Ferrara. program.
LSC grantee:
Sweeney v. Bane (1992): ``The Sued to stop New York from
Real Cost . . .'', by Phillips requiring co-payments for its
and Ferrara. Medicaid program.
Fulkerson v. Commissioners Sued to stop the adoption of a
(1992): ``The Real Cost . . system of co-payments for the
.'', by Phillips and Ferrara. Maine Medicaid program.
National Center for Youth Law: Sued California to extend its
Barajas v. Coye (1992): ``The Real Medicaid program to cover
Cost . . .'', by Phillips and preventive dental services for
Ferrara. children.
FARMING
Legal Services Corporation grantees have initiated many frivolous
lawsuits against farmers, ten of which are listed here:
------------------------------------------------------------------------
Farmworkers Legal Services of North Filed numerous frivolous class
Carolina: Testimony by C. Stan action lawsuits intended to
Eury before Subcommittee on strongly discourage the use of the
Commercial and Administrative Law, H2A temporary agricultural worker
(June 15, 1995). program to supplement the labor
force when there is an
insufficient supply of U.S.
workers.
LSC grantees: Testimony by Harry Multiple lawsuits filed by LSC-
Bell before Subcommittee on funded attorneys in Florida have
Commercial and Administrative Law, prompted the sugar cane growers to
(June 15, 1995). mechanize rather than continue
their efforts to maintain a H2A
temporary guest-worker program.
Friends of Farmworkers, Inc.: After losing most of a lawsuit
Testimony by Dean Kleckner before against Phil Roth, a fruit grower
Senate Committee on Labor and in Pennsylvania, FOF demanded
Human Resources, (June 23, 1995). $65,000 in attorney's fees from
Mr. Roth, an amount more than 100
times greater than the disputed
wages found to be due to the
workers involved in the case.
Advocates for Basic Legal Equality: Sued tomato farmer, the neighbor
Testimony by Dean Kleckner before who rented the labor camp to the
Senate Committee on Labor and farmer, their crew leaders, and
Human Resources, (June 23, 1995). the tomato packing company when a
farmworker got injured while
reaching under a moving truck at
the labor camp.
Michigan Migrant Legal Action Sued DeBruyn Produce on behalf of
Program: Testimony by Robert three farm workers in an effort to
DeBruyn before Senate Committee on use a very minor housing dispute
Labor and Human Resources, (June to bring employer provided housing
23, 1995). under landlord tenant law.
Texas Rural Legal Aid: Testimony by Sued DeBruyn Produce on behalf of
Robert DeBruyn before Senate 27 plaintiffs, claiming that they
Committee on Labor and Human were owed a full crop year's
Resources, (June 23, 1995). wages. In fact, none of the
plaintiffs appeared in the
company's employee, tax, or
workers' compensation record. They
never worked for the company.
Advocates for Basic Legal Equality: Initiated litigation to undermine a
Testimony by Harry Bell before cooperative dispute resolution
Subcommittee on Commercial and agreement between pickle growers
Administrative Law, (June 15, and a farmworkers' union (Farm
1995). Labor Organizing Committee).
LSC grantee: Testimony by Harry An LSC attorney sued a grower in
Bell before Subcommittee on South Carolina for improper
Commercial and Administrative Law, payment of a farmworker even
(June 15, 1995). though there was documented
evidence that the worker was in
jail in North Carolina at the time
of the alleged violations.
Farmworkers Legal Services of North Litigated against the North
Carolina: Testimony by C. Stan Carolina Employment Security
Eury before Subcommittee on Commission, resulting in the
Commercial and Administrative Law, destruction of a successful
(June 15, 1995). interstate clearance system used
as a means to recruit farmworkers
that provided continuity of
employment to the workers.
California Rural Legal Assistance: Charged Gerawan Farming with
Testimony by Dan Gerawan before numerous violations relating to
Subcommittee on Commercial and damaged housing. During the trial
Administrative Law, (June 15, it was proven that the damage was
1995). not intentional, but that CRLA had
actively promoted the intentional
damage and even prohibited repairs
from being done.
DISABILITY PROGRAMS
Legal Services Corporation grantees have aggressively sought Social
Security disability benefits for alcoholics and heroin addicts. LSC
attorneys have also sought disability benefits for novel categories of
disability such as ``antisocial personality disorder'' and ``attention
deficit disorder.'' In one instance, LSC attorneys argued an employer
could not require an alcoholic worker to attend AA meetings on the
theory that alcoholism is a disability protected under the ADA.
------------------------------------------------------------------------
Legal Assistance Foundation of Sued to obtain SSI disability
Chicago: Jones v. Shalala (1993): benefits for 44-year-old due to
``The Real...'', By Phillips and alcohol and opinoid dependence and
Ferrara. antisocial personality disorder.
Legal Aid Society of Metropolitan Obtained Social Security disability
Denver; Trujillo v. Sullivan benefits for an alcoholic with
(1992): ``The Real Cost...'', By back pain.
Phillips and Ferrara.
Southern Minnesota Regional Legal Won disability benefits for a
Service: In Re X (1992): ``The heroin addict, claiming he was
real Cost...'', by Phillips and incapable of working.
Ferrars.
Alaska Legal Services: S v. Won Social Security disability for
Sullivan (1992): ``The Real an alcoholic who was not able to
Cost...'', by Phillips and Ferrara. work because he could not stop
drinking.
Merrimack Valley Legal Services: Won SSI benefits for a drug addict
Smith v. Sullivan (1993): ``The suffering from migraines and
Real cost...'', by Phillips and arthritis.
Ferrara.
New Orleans Legal Assistance Won benefits for a 56-year-old
Corporation: Schultz v. Nelson woman who claimed to have
(1993): ``The Real Cost...'', by tendonitis that prevented her from
Phillips and Ferrara. engaging in productive work.
Central California Legal Services: Sued an employer contending, a
Testimony by Harry Bell before warehouse worker with a history of
Subcommittee on Commercial and alcohol abuse could not be
Administrative Law, (June 15, required to attend Alcoholic
1995). Anonymous meetings as a condition
of employment arguing that
alcoholism is a disability under
the Americans with Disabilities
Act.
Legal Aid Society of San Diego: Asserted that Attention Deficit
Testimony by Harry Bell before Disorder is a disability within
Subcommittee on Commercial and the meaning of the Americans with
Administrative Law, (June 15, Disabilities Act. The client was a
1995). welfare recipient who was studying
for a degree in criminal justice
as part of a state-sponsored
training program.
OTHER
Legal Services Corporation grantees routinely bring other cases with no
logical connection to serving the needs of the poor. These include cases
to secure unemployment benefits for a teacher who was fired for drug
use, challenging the use of literacy tests as a criteria for high school
graduation and challenging a public health law designed to prevent
individuals from intentionally spreading infectious diseases.
------------------------------------------------------------------------
Tampa Bay Legal Services: Meyerson, Challenged the establishment of a
A., ``Nixon's Ghost'', Policy functional literacy test as a
Review, Summer 1995. criterion for high school
graduation in Florida. The test
measures this ability to fill out
basic job application, do basic
comparison shopping, and balance a
check book.
Vermont Legal Aid: Rodriguez v. Sued to obtain unemployment
Vermont Department of Employment benefits for a teacher fired for
(1992): ``The Real Cost...'', by drug possession, arguing that the
Phillips and Ferara. teacher had not lost his job
through misconduct.
Legal Aid Society of Orange County: Sued claiming that the city's
Tobe v. City of Santa Ana (1993): prohibition on camping out, using
``The Real Cost...'', by Phillips sleeping bags, and storing
and Ferrara. personal property, in the city
streets was unconstitutional.
Evergreen Legal Services:
Roulette v. City of Seattle Sued claiming the city's
(1993): ``The Real Cost...'', prohibitions on sitting or lying
by Phillips and Ferrara. on sidewalks in commercial areas
and aggressive begging were
unconstitutional.
Ledesma v. Seattle School Sued to demand bilingual education
District (1991): ``The Real in Seattle schools.
Cost...'', by Phillips and
Ferrara.
Georgia Legal Services Martin v. Challenged Georgia state law
Ledbetter: Testimony by Dean permitting involuntary
Kleckner before Senate Committee hospitalization of individuals
on Labor and Human Resources, with infectious diseases who
(June 23, 1995 . represent a danger to public
health.
California Rural Legal Aid: Sued to kill the Targeted
Testimony by Harry Bell before Industries Partnership Program,
Subcommittee on Commercial and joint federal-state project to
Administrative Law, (June 15, direct labor law enforcement
1995). resources at problem employers,
with the resultant spectacle of
one taxpayer-funded entity suing
another.
------------------------------------------------------------------------
Mr. GRAMM. Mr. President, I also have another letter by a former
Legal Service Corporation president, Terry Wear, explaining why in his
experienced opinion the Legal Services Corporation cannot be reformed
and should either be turned over to the States or be eliminated
entirely. Frankly, he recommends that it be eliminated. I ask unanimous
consent that this comprehensive letter be printed in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Law Offices of Terrance J. Wear,
Washington, DC, September 20, 1995.
Senator Phil Gramm,
Russell Senate Office Building,
Washington, DC.
Dear Senator Gramm: My purpose in writing is to outline
some of the problems that I encountered during my tenure as
President of the Legal Services Corporation during portions
of the Reagan and Bush Administrations, and to comment on S.
1221, the Senate companion bill (introduced by Senators
Kassebaum and Jeffords) to HR 1806, the McCollum-Stenholm
legal services bill.
By way of background, the federally funded component of the
legal services program is one of Lyndon Johnson's poverty
programs, having originated in the Office of Economic
Opportunity in the Johnson Administration's Department of
Health, Education & Welfare. The program was taken out of HEW
in 1974, and set up in a free standing non-profit corporation
similar in structure to that of the Corporation for Public
Broadcasting.
The Legal Services Corporation (LSC) now disburses
approximately $400 million annually in taxpayer funds, in the
form of grants to local legal services providers, which in
turn use these funds to hire full-time lawyers, who in turn
provide civil legal services to eligible poor persons. Over
the last fifteen years, the existing grantees have been able
to insulate themselves from competition for these grants, and
the same grantees now receive the monies year after year.
The President nominates candidates to the Corporation's 11-
member Board of Directors, and these nominees are subject to
Senate confirmation. Other than that, the President (and the
Executive Branch) has no control over the actions of the
corporation, its Board of Directors, or its approximately 320
grantee legal services providers.
Some believe that the LSC, and the federal component of the
legal services program, was structured this way purposely; so
no one (other than the local legal services grantees) could
control which cases they handle. The grantee providers pick
and choose the specific cases they handle, in order to
``raise the consciousness'' of the persons being sued, as
well as the communities in which these persons reside. They
sue to ``strike a blow'' for a favorite cause, or to create
legal precedents that they believe are ``favorable'' to poor
persons as a class, rather than to the individual poor client
whose name appears on the court pleadings. Cases are pursued
for purposes of setting these kinds of legal precedents, even
when such action is not in the best interest of the client
being represented. (See e.g., ``War on the Poor,'' National
Review, May 15, 1995; pp. 32-44.)
Often, these programs refuse to serve poor persons with
``run of the mill'' or ``mundane'' legal problems; preferring
to concentrate on the ``sexy,'' ``snazzy,'' or ``high
profile'' cases that promote their view of ``how society
should be.'' Let me cite just one example: A legal services
program in Washington state refused to help a poor single
mother (and her three children) with a landlord-tenant
problem (and the woman lost her rental unit as a result),
because the program was ``too busy'' with other matters.
The ``other matters'' that the program chose to handle at
the time this woman was seeking legal assistance included:
Helping an alcoholic father, who claimed he was unable to
work because of his ``disability,'' avoid paying child
support for his children;
Preventing a public housing authority from evicting two
tenants who had not disclosed their prior criminal histories
in their rental applications, as they were required to do;
and
[[Page S 14596]]
Obtaining a nationwide permanent injunction blocking
federal reductions in the cash and medical welfare benefits
given to newly arrived refugees.
These examples clearly demonstrate the desire of many legal
services programs to handle the ``high profile'' cases, in
which they can ``strike a blow'' for a particular cause, at
the expense of individual poor persons with ``mundane'' legal
problems.
The ``housing authority'' example deserves further
examination: Oftentimes, legal services programs try to block
the eviction of known drug dealers from public housing units;
effectively allowing these people to ply their trade for
these housing units, and effectively putting the other
tenants (and their children) into a drug war ``free fire
zone.'' Under the existing legal services system, there is
nothing anyone can do to prevent these government-funded
lawyers from doing these things, regardless of the suffering
they inflict on the innocent families who live in these
housing units.
There are dozens of other examples of legal services
lawyers inducing or aiding and abetting conduct that is self-
destructive. Space does not permit me to mention them all,
but some of the most egregious examples include:
Several legal services programs routinely advise poor
parents to get a divorce, and poor non-abused teenagers to
set up households of their own, all for purposes of
maximizing the total amount of welfare payments that the
group can obtain.
Other legal services programs work to obtain federal
disability payments (amounting to hundreds of dollars per
month) for alcoholics and drug addicts, who then use these
funds to ``feed'' their self-destructive habits.
A legal services program obtained government disability
payments for a convicted burglar; using as the basis for his
claim the injuries the burglar sustained during the course of
committing his crime.
Another legal services program helped a convicted rapist
get custody of the child he sired as a result of the rape,
even though a psychologist testified that the rapist was
likely to harm the child.
Lastly, a legal services program employee being paid by the
U.S. taxpayers used his position to organize civil unrest in
New York's Attica Prison, in order to use this unrest to
``commemorate'' the anniversary of the 1971 Attica Prison
riots, in which 43 inmates and guards were killed.
Based upon my experiences with the federal legal services
program, I do not believe the current program is salvageable;
consequently, it should be ended now. Some Members of
Congress, such as Congressman McCollum, have suggested that
the corporation and the current program should be continued,
with restrictions placed on what the legal services lawyers
could do, the kinds of cases they could handle, etc. This
approach does not take into account the history of the
program, and the past failed attempts to do the very same
thing. Let me mention some examples:
When the federal legal services program was set up under
the corporation in 1974, restrictions were written into the
statute saying that legal services lawyers could not engage
in political activities; or handle abortion
cases, desegregation cases, etc. During the Reagan and
Bush Administrations, similar attempts were made to limit
the kinds of activities and cases that could be handled by
legal services personnel. These restrictions were
implemented through Appropriations Acts ``riders'' that
were added to the bills that funded the program.
Many of these restrictions were effectively circumvented by
the legal services lawyers; or were openly violated in the
case of the handling of abortion cases. The plain facts are
that the legal services activities are not interested in
having their activities restricted in any way; and will not
abide by the McCollum restrictions:
For example, certain legal services grantees handled
several abortion cases during my tenure as LSC President, and
refused to stop when I ordered them to do so. These programs
then used the money, which I had given them to help poor
people, to pay for a law suit to block imposition of the
discipline I imposed on them. They successfully stalled my
attempts to curtail their activities, even through they were
clearly in violation of the federal Legal Services
Corporation Act. These law suits dragged on for several
years, and were subsequently settled by one of my successors,
on condition that no disciplinary action be taken against
these programs.
In 1980, after completion of the national census, the legal
services programs spent over 28,000 hours and over $600,000
in federal funds on Congressional redistricting activity.
Their purpose was to redistrict ``in'' those Members or
candidates who were sympathetic to the political and social
goals of these activists, and redistrict ``out'' those who
were not. During the 1980s, many legal services programs
tried to carry out this same sort of activity at the State
and local levels.
In 1989, I caused the corporation to enact a regulation
prohibiting the involvement of the legal services programs in
redistricting, as it was clearly ``political activity'' which
was forbidden under the Legal Services Corporation Act. I was
then promptly sued by three of the legal services programs
that I was funding. These programs used the money, which I
had given them to help poor people, to pay for a law suit to
keep me from enforcing this regulation; and successfully tied
up its enforcement for more than three years.
The Congress should not be fooled by the McCollum attempt
to reform the existing legal services program. There is no
reason to believe a new set of restrictions of the kind
proposed by Congressman McCollum (and Senators Kassebaum &
Jeffords) will be any more effective than the earlier sets of
restrictions were. These activist lawyers will simply exploit
the ``loop holes'' in the McCollum restrictions, ignore them,
or file law suits to challenge those they do not like; and
the restrictions will be suspended for 4 or 5 years, while
these cases work their way through the courts. The activists
will use the courts to effectively gut any attempt to
regulate their behavior, and will ``wait the Congress out''
until it gives up and goes on to other things.
This conclusion is particularly noteworthy, in light of the
announced intent, on the part of the legal services lawyers,
to make ``the road to welfare reform a legal obstacle
course'' for the Congress. In the April 1995 issue of the
American Bar Association (ABA) Journal (pp. 82-88), the
activists threw down the gauntlet to this Congress, by
outlining just how they intend to sue the legal system, and
the federal dollars they are given, to attack any effort to
reform the current welfare system.
I'm also heartened to note, however, that ending the
current legal services program will not end legal services
for the poor:
The Gekas legal services bill (H.R. 2277), as introduced,
provides for a transitional system of block grants to the
States, which will be used to fund legal services for poor
persons. I'm aware that you have incorporated this bill into
the Senate version of the State, Commerce, Justice
Appropriations bill, and that the Gekas bill will become law
if this appropriations bill is enacted.
Among other things, the grants authorized in the Gekas bill
will be awarded competitively; and, while existing grantees
will be eligible to compete for these grants, the grant
awarding process will not be ``stacked'' in their favor.
I believe viable grant candidates, who have no ``social''
agenda but who are genuinely interested in helping individual
poor persons with their legal problems, will compete for
these grants; will win large numbers of them, and will do a
good job for their poor clients.
The Gekas bill will also pay grantees after they have
finished their work; rather than giving the grantees money up
front, as the McCollum bill would do. Under the Gekas
approach, if a grantee does things that are prohibited, the
grantee will not be paid for them, and its grant will be
terminated. This should be a particularly effective way to
ensure that taxpayers' funds are used only for the kinds of
activities permitted in the Gekas block grant program.
Even the liberal Washington Post agrees that downsizing of
the federal legal services program is inevitable, and that
the block grant approach in the Gekas bill will allow more of
the ordinary problems of poor people to be handled, leaving
the ``high profile'' cases of interest groups like the ACLU.
(See, Washington Post Editorial, September 18, 1995.)
Many of the current legal services programs receive
substantial funding from IOLTA (Interest on Lawyers' Trust
Accounts), private charities and endowment funds, the United
Way, and State and local governments. I'm advised that, in
1993, non-LSC funding for legal services amounted to $246
million; as compared with $357 million in funding from the
federal government. Consequently, the two-year phase out of
the federal legal services program, as provided for in the
House Budget Resolution and in the Gekas legal services bill,
will not end legal services for the poor.
There also are approximately 900 legal aid programs that
are not affiliated with the federal legal services program;
these programs will help ``take up any slack'' that may
result from the termination of the federal portion of the
legal services program.
There also are other substantial private pro bono efforts
that are underway to aid poor persons. For example--
The American Bar Association has suggested to its 375,000
members that they donate 50 hours per year of free legal
services to low-income people.
The New York City bar association recently raised $3
million for its own legal services program, which provides
free legal services for indigent families, and others.
The Iowa State Bar Association has adopted a resolution
urging its members to donate ``a reasonable amount of time,
but in no event less than 20 hours per year'' to pro bono
legal activities.
These kinds of activities are underway in many states; and
will cushion the termination of federal funding for legal
services. Also, virtually all the states have formal or
informal systems under which lawyers in private practice
provide pro bono legal services to poor persons.
Whenever the Congress or the States attempt to revise any
``poverty'' program; the proponents of the program rail about
``mean-spirited attacks on the poor.'' These attacks are
usually the ``knee-jerk'' responses of people and
institutions with special interests to protect. In this
situation, it is not the poor who are complaining, but rather
the lawyers who benefit from the program. In fact, this
program has become a general welfare program for lawyers,
rather than one primarily benefiting poor people; and it is
the lawyers who are lobbying for its retention.
The ``knee-jerk'' responses about ``mean-spirited attacks
on the poor'' are usually
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overstated; cases in point are the attacks that were levied on the
welfare reform programs instituted in the States of Michigan
and Wisconsin. When these reforms were proposed, there was a
great ``hue & cry'' about hurting the poor, but this has
proven not to be the case at all. I believe this earlier
pattern is being repeated here, and that the Legal Services
Corporation and its 320 grantees will not be missed when they
are gone.
It is interesting to note that there have been no ``poor
persons'' who have come forward to testify in any of the
Congressional hearings held on the legal services program. I
believe this is true, at least in part, because poor people
do not rank legal services as a high priority in their lives,
and do not believe the current program has been all that
helpful to them.
In fact, the lawyer-activists who have used the funds in
this program to promote their view of ``how society should
be;'' do so without regard to the effects of their actions on
the poor, i.e., the poor persons who must live next to the
drug dealer whom legal services has kept from being evicted.
These poor people have to live with the consequences of the
``social experiments'' of these activists; and, I suspect,
are getting tired of them.
If someone must ``take the blame'' for the demise of the
Legal Services Corporation and the federal funding for its
grantees, it rightly must be the legal services activists who
have abused the program through their irresponsible behavior,
and their past refusal to accept common sense reform. The
facts speak for themselves; they clearly demonstrate that the
Legal Services Corporation and its grantees, at a minimum,
use federal monies for a lot of ``stupid'' things. The
current program is not susceptible to reform because of the
attitudes and behavior of the activists who receive these
federal funds; serves no useful purpose, and should be
terminated.
I hope these thoughts are helpful to you. I stand ready to
meet with you at any time if I can be of service to you as
you consider this important issue.
Sincerely,
Terrance J. Wear.
Mr. GRAMM. Mr. President, I am sure there will be others who want to
debate this amendment, and so let me summarize my arguments and then
yield the floor so that we can continue the debate.
Legislating is about choosing. Legislating is about deciding what is
worth doing and what is not worth doing. Although it sometimes appears
that the same laws of economics do not apply to the Federal Government
that apply to families and businesses. Every day families have to say
no. Seldom does Government say no. One of the reasons that families
have to say no so often is because Government cannot; $1 out of every
$4 earned by the average American family with two children now goes to
Washington so that Government can say yes so often.
However, even in the Federal Government, we have to make choices. The
Domenici amendment asks us to choose. It asks us to choose between
funding legal services and providing funds for the prosecution of
organized crime, drug trafficking, child pornography, fraud against the
Government, terrorism, and espionage. It asks us to choose between
funding the Legal Services Corporation over funding 55 U.S. attorneys
and 55 support personnel that in each of the judicial districts in
America could use to make our streets safer, that could be prosecuting
people who have preyed on innocent men and women, who could be
prosecuting people who are selling drugs at the door of every junior
high school in America.
The Domenici amendment asks us to choose. It asks us to choose a
federally funded Legal Services Corporation over funding for an FBI
Academy at Quantico, VA, which is critically important to maintaining
our ability to train 1,225 State and local police officers every year.
Let me remind my colleagues that the highlight of a law enforcement
career in America is coming to the FBI Academy. My proposal would allow
each and every one of these 1,225 people, who are chosen because they
are the finest America has in law enforcement, to come to the FBI
Academy, to be trained so they can go back and train other State and
local law enforcement officials, in things that are critical--when to
use deadly force and when not to, how to exercise judgment, how to
carry out their function. They need this sort of training so that when
some brutal predator criminal kills one of our neighbors, we are able
to apprehend them, convict them, and hopefully, if they are richly
deserving, put them to death.
And, Mr. President, this is not a priority that just I as a Member of
the Senate have set; 91 Members of the U.S. Senate, including the
authors of this amendment which would cut this program, voted for the
Comprehensive Terrorism Prevention Act of 1995, which authorized us to
begin to upgrade the infrastructure of the FBI Academy.
I do not believe that reasonable working Americans would choose to
spend $49 million on the Legal Services Corporation over spending that
money to upgrade the FBI Academy, thereby allowing us to train more and
better law enforcement officials for America.
I do not believe, Mr. President, that the average working American
family would support taking $25 million away from our Federal courts,
money that could be spent on 400 probation officers to supervise
convicted felons who are walking the streets, in order to fund a
Federal legal services program.
We all heard of this case--one of the cases, in fact, that President
Clinton ran a TV ad on--about a brutal murder that occurred. What he
did not tell us was that this brutal murderer had been convicted of a
violent crime, was in prison, had been released, and was being
supervised by a parole officer. He had to meet with the parole officer
once a year--once a year he had to show up for a meeting. And he went
out and killed somebody. And the President tells us as a result of that
we ought to ban guns.
But the point is, we do not have so many probation officers that we
can simply afford a cut that would lead to 400 fewer.
This is a critically important area, and I urge my colleagues in
their zeal to preserve the Legal Services Corporation as a Federal
program to ask themselves, not would you want it if it were free, but
are you willing to cut funding for the Federal judiciary by $25 million
knowing that with $25 million we could fund 400 more probation
officers, that we could have funding that is needed for such programs
as mandatory drug testing of criminals that are on release walking the
streets of America? Those are the choices that we have to make and
these are the questions we must ask.
Now, I have not gone into great lengths in talking about the Legal
Services Corporation. Many of the areas that they are engaged in are
those in which the public perceives to be an abuse of power, whether
you are talking about suing every State in the Union that has tried to
reform welfare--the provisions in our bill, in allocating a block grant
to the States to provide legal services, have very, very stringent
limits that say, if you take any of this money for legal services, you
cannot use it, nor any other money in this bill, to try to block
welfare reform in America.
The Domenici language is not as strong as our language in terms of
limiting the action or the use of legal services funding. It is a step
in the right direction, but why not give this program back to the
States? What is it about this program, other than the political base
that it enjoys, that is so different from aid to families with
dependent children? Can we trust the States with seeing that poor
people are fed cannot we trust the States to see that legal services
are provided?
What is it about this program that makes it so different than
Medicaid? I assume that those who support this amendment, at least some
of them, will support block granting Medicaid. We called for it in our
budget and I assume we have the votes to do it. That has to do with
people's health, with their access to medical care. How is it that can
we trust the States to run Medicaid but yet we cannot trust them to
administer funds for legal services?
Well, let me say this, Mr. President. I believe the Legal Services
Corporation is a renegade agency which has spent a tremendous amount of
resources promoting a political agenda. I think the superstructure of
the agency which will be preserved by the Domenici amendment is engaged
in an activity which is the right of every free citizen. Every free
citizen has a right to advocate their views, no matter how extreme
someone else may feel they are. And I defend that right. But they do
not have the right to do it with taxpayers' money.
If they object to reforming welfare, let them run for the legislature
and explain to people that they do not want welfare recipients to have
to work. But
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they should not be able to take taxpayer money to file those lawsuits.
If they believe that the Government ought to be involved in
elections, or they believe the Government ought to be involved in other
areas, let them get out and engage in the public policy debate, but not
with the taxpayers' money.
I do not believe that we are going to be able to solve these problems
if we keep this infrastructure in place. I think that the only thing
that is going to change the focus of the Legal Services Corporation to
the legal needs of poor people is to eliminate the Federal
superstructure, a superstructure and bureaucracy which has proven
beyond a shadow of a doubt that it has a social and political agenda. I
oppose its agenda. It has a right to an agenda, but not at the
taxpayers' expense.
I believe we can meet the legitimate legal needs of the poor by
setting up a block grant which was supported by the subcommittee and by
the full committee. That block grant will give the money back to States
and, within the guidelines which will say that no entity taking this
money can file lawsuits to block welfare reform, keep drug dealers in
public housing, or any of all the other things that this agency is
famous, or infamous, for. It would be administered by the States, with
greater supervision and control, where people in an area who are
outraged about an action cannot just write their two Senators and their
one Congressman, but actually get the legislature and the Governor to
make a change.
Is that not logical reform? Is that not what the Contract With
America was about? Is that not what the party I represent stands for? I
think it is.
I think this is a clear-cut choice. And I want our colleagues to look
very closely at these offsets and understand the damage we are doing to
law enforcement, to our anticrime and anti-violence efforts by
providing this funding level to the Legal Services Corporation. The
$340 million that would be provided under the Domenici amendment is
taken away from programs that, not only in my opinion, but I would
assert in the opinion of virtually any reasonable working American, are
of much greater importance.
I hope my colleagues will reject this amendment.
I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER (Mr. Coverdell). The Chair recognizes the
Senator from New Mexico.
Mr. DOMENICI. Mr. President, I say to the Senator from Massachusetts,
let me just respond to three or four of the Senator's points.
First of all, Mr. President, so everybody will understand, I will try
to address a couple issues of the Senator from Texas with reference to
what we are cutting.
It is interesting, when this side of the aisle, including my
wonderful friend from Texas, when you are not really cutting something,
but merely reducing its growth, you like very much to tell everybody,
``We're not really cutting, we're just reducing the growth.'' In
discussing my chosen offsets for this amendment, he chooses to ignore
that. So let me give you a couple of examples. I think you ought to
know that if these examples strike home--and every one of the Senator's
examples is festered with the same problem, every one of them has the
same problem in terms of how they are attempting to mislead us.
First, let us talk a minute about the U.S. attorneys. The amendment
that we have funds the U.S. attorneys at $28 million above the U.S.
House of Representatives. Frankly, I do not believe the U.S. House of
Representatives would be cutting U.S. attorneys knowing the
subcommittees over there and what their desires are about
crimefighting.
The U.S. attorneys, under this proposal, will increase $87 million.
No cut. U.S. attorneys in America will have a 10-percent increase. So
whatever the good Senator from Texas said, we are providing $87 million
in new money for U.S. attorneys; not a cut, an increase.
Frankly, if you want to increase something in a committee so that you
can say you are the greatest crime-fighter in the world and one up
everybody, then go ask the Justice Department, ``Well, if you don't get
that, how many are you going to lose?'' that is, in essence, every
argument the Senator has made.
The truth of the matter is, there will be many, hundreds of new U.S.
attorneys, even after we provide legal services for the poor.
Let me talk about the FBI. The discussion here sounds like this 1,225
people from the hinterland that we train we are not going to be able to
train because of the Domenici amendment. Absolutely untrue. They will
all be trained, there is no question about it. So you can strike all
that talk. They will all receive education and training.
This proposal that is funded in the bill is the following: $52
million for some additions to their training center at Quantico. They
do not have a site yet, they do not have a plan yet, and the estimates
are they will spend $5 million of the $52 million at the most this
year. All of it will be spent next year and the year after.
What is wrong with saying since you cannot spend it, since you do not
have a plan, is there anything wrong with saying, let us provide legal
services for the poor, if that is what it takes? Frankly, I do not
believe, if the Director of the FBI was sitting across the table and
told about this, that he would stand up and say, ``I insist on $52
million that I don't need, that won't be spent until next year and
because I want it so much, I would like no poor people to have any
legal services in America.'' Does anybody believe that?
Let me go on to just a couple more.
General legal activities. My good friend from Texas has made an
argument about all these professionals they are going to lose. Under
the committee bill general legal activities is slated to increase by
$13.4 million.
I could go on with each one of them. I have tried my very best to be
as honest as I can about U.S. attorneys. They are going up
dramatically, not coming down. FBI construction; the now named
candidates from around the country will be trained. We are just not
going to put money in for a building they do not have a plan or site
for. We can do it next year if we find, indeed, they are prepared to
allocate the funding.
My last point has to do with my good friend from Texas talking about
a budget gimmick. Frankly, Mr. President, I say to my fellow Senators,
I do not let too many gimmicks get through, but they get through. Every
appropriations bill has some kind of forward funding in it. In fact, I
suggest, and if my good friend from Texas would like me to pull the
bill, I will, but I suggest it is way back in my recollection that the
last time he was ranking member for the HUD and NASA bill, that there
was over $1 billion forward funded in order for them to get a bill
through.
Check the number. Maybe it is $850 million, but it is close to a
billion. And it was praised on the floor by my good friend from Texas.
But mine is not the gimmick he describes. As a matter of fact, we
phased our funding because we want to encourage the Legal Services
Corporation to implement a competitive bidding system for grants in a
timely manner. The first $225 million will be released in order for the
Corporation to continue service. The additional money at the end is
going to be used as incentive money to implement competition and to
supplement earlier funding for legal services.
Last but not least, Mr. President, I looked at all these letters my
good friend from Texas has submitted for the Record in opposition to my
amendment. I have copies of them now. I am about as close to the Farm
Bureau as anybody in this Senate. Frankly, if the Farm Bureau knew that
the Domenici prohibitions, which are similar to the House, were going
to be adopted as part of the law, they would not write this letter. And
that is what it is going to be, because both bills prohibit the kind of
actions that the farming community, and many others, are arguing about,
complaining about the abuses, which I acknowledge. They would say,
``Great, if you want to have legal services with these prohibitions, we
are not against helping the poor.''
There is not a single one of these organizations who wants to go on
record saying, ``We don't want any legal services for the poor of the
United States.'' They do not want the abuses.
Why are we apt to stop the abuses this time when we never have
before? I
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will say it plain and simple. I do not intend to in any way antagonize
my Democratic friends, but the fact of the matter is, we never had a
Republican House, that is why we never got the prohibitions.
They are in the House bill. They put the prohibitions in. We are
going to put them in. There will not be a Commerce, Justice bill
without the prohibitions in, and there will be no funding for legal
services without the prohibitions. When you put all the prohibitions
in, when you understand the nature of the reductions we had to make, I
am sure many who listened to the Senator from Texas will take another
look. They will clearly decide that even the average working man that
my friend from Texas uses so wonderfully in talking about not wanting
to pay taxes and they are the ones that are working and that they ought
to get out and pull the wagon, that if you put an average working man
or woman in a room and you say, ``If these abuses are not there and it
is just providing an attorney for a poor person whose opponent has an
attorney and they are desperately in need, average working man and
woman in America, would you like to say to those people, you get
nothing, you go defend yourself, do away with legal services?'' Well, I
will take that issue to the average working men and women in this
country, and I believe by an overwhelming majority they are decent
people and understand if you are in litigation, you have to have some
help. If you are a poor person and getting sued, you are involved in a
landlord-tenant dispute, any of the thousands they handle--let me tell
you, they are handling, on an individual basis, huge numbers--
thousands--if somebody knows, maybe they can insert it into the Record.
They have nothing to do with class actions.
My closing remark is if you are worried about the abuses, about class
action, about suits against legislators or Governors, or welfare, those
are gone in the Domenici amendment, finished, they are not around
anymore.
I yield the floor.
Mr. GRAMM. Mr. President, let me respond to the points Senator
Domenici has made. First of all, the committee bill does not eliminate
legal services. It eliminates the Federal entity, the Federal
bureaucracy, but gives funds to the States with stricter prohibitions
than the Domenici amendment, so that the funds can be used through
State-run programs, without this overarching Federal bureaucracy and
its political agenda, so that the funds available can truly go to help
poor people with real legal needs.
So the suggestion that the alternative is the Domenici way or no way,
simply does not bear up under scrutiny.
Now, with regard to the gimmick used when we are talking about
funding, the question is not do we have more prosecutors than we had
last year after the Domenici cuts are made. The question is, Do we have
more prosecutors than we need? The point is, for example, in the
general legal activities of the Justice Department, we have provided
$10 million less than Bill Clinton says we need to prosecute organized
crime and major drug traffickers and child pornography and major fraud
against the taxpayer and terrorism and espionage. We have provided $10
million less than the President says we need. The Domenici amendment
would take away $25 million more, eliminating 200 prosecutors from the
Justice Department. Now, those are 200 additional prosecutors who would
have been there were we not maintaining the Federal Legal Services
Corporation.
That is the choice. Do you want them there or not? Senator Domenici
says, well, look, they were not there last year, were you not happy
without them? No. The American people want more prosecutors. The
American people want to go after organized crime and drug traffickers
and child pornographers and fraud against the taxpayers and terrorism
and espionage. So the question is: Do you want 200 more prosecutors
doing these things, or do you want a Federal Legal Services
Corporation? That is the question.
Senator Domenici says, well, you will end up with more U.S. attorneys
under the bill even with his cut. That is true, but it is not very
relevant. The point is, the American people want to grab criminals by
the throat and not let them go in order to get a better grip. The
American people, I believe, given a choice of spending $11 million so
they can have 55 more assistant U.S. attorneys and 55 more support
personnel to go after people selling drugs at every junior high school
in America, I think given that option, they would choose to have them
there.
In terms of the FBI Academy, the argument made is that they do not
need new facilities. Well, everybody associated with the FBI says they
do. They say that the infrastructure is becoming antiquated.
Mr. DOMENICI. If the Senator will yield, I did not say they did not
need it.
Mr. GRAMM. I believe the Senator said they just will not be able to
build a new facility as soon.
Mr. DOMENICI. I said they cannot build it because they do not have a
location or a plan, and they cannot spend the money.
Mr. GRAMM. All I know is that the head of the FBI asked me both in
testimony and in a letter, to provide the funds because he said it was
needed. I think the Senator is talking about the technical support
center. I am talking about the FBI Academy. As I read the amendment, it
is cutting the academy and not the technical support center.
In any case, our infrastructure and our effort to fight violent crime
and drugs is getting old. When we had testimony before the
subcommittee, the head of the FBI said that one of his top priorities
was to try to upgrade the training facilities, which is desperately
needed. I think that is a priority item.
Look, it is a matter of choice. You may want a Federal Legal Services
Corporation more than you want to modernize the training of the FBI
Academy. That is a perfectly legitimate choice. But it is a choice,
this is not a free amendment. This amendment will mean fewer
prosecutors and fewer convictions. It will mean facilities that will
not be modernized as rapidly. It will mean a lower quality of training.
It will mean fewer people will get trained. That is the choice that you
are making and it is not a choice that can be wished away.
Now, you can say, well, we still would be doing more than we were
doing last year. But the point is, we will not be doing as much as we
are capable of doing.
In terms of the Farm Bureau, I would be happy to call in the Farm
Bureau and ask Senator Domenici, if they do not support his position,
if they would rather do it my way, if he would pull his amendment down.
My feeling is that they would rather eliminate this Federal
superstructure, which basically has, since the beginning of the Legal
Services Corporation, pursued a political agenda, a political agenda
that we are trying to deal with right here in this very amendment. This
amendment is not as strong in dealing with this agenda as we are in the
committee bill, which is why I want to preserve the committee bill.
I yield the floor.
Mr. INOUYE addressed the Chair.
The PRESIDING OFFICER. The Senator from Hawaii is recognized.
Mr. INOUYE. Mr. President, I rise to speak on behalf of the poorest
of the poor of this land. Mr. President, I rise to speak on behalf of
the first Americans of this land, the native American, the Indian.
In 1788, our forefathers, the elected representatives of the first
nine States of this Union, gathered to ratify and adopt the
Constitution of the United States. This noble document has served us
for over 200 years. In the first article of this great document is a
provision that recognizes the important role and the specific role
played by the Federal Government of this United States to carry out
obligations that we solemnly promised by treaty and by law. It also
recognizes the sovereignty of these people. These were proud people.
They numbered at that time in excess of 50 million in North America.
Today, I am sorry to say they number less than 3 million. At the moment
of the signing of the Constitution, these great people exercised
dominion over 550 million acres of land, and we recognized and honored
that at that moment.
Today, the descendents of these Indians exercise dominion over 50
million acres of land. Because these Indians, who exercise dominion
over all these lands--including the land on which we are standing at
this moment--we the
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people of the United States, because of their granting of title to
these lands to us, promised by treaty that as long as the Sun rises in
the east and sets in the west, we will make certain that their lives
will never be placed in jeopardy, that we will provide them with
shelter, health, and education.
I am sorry to say we have not lived up to these obligations. In fact,
our predecessors, the U.S. Senators of the older days, were faced with
the ratification of 800 treaties. Of the 800 treaties, our predecessors
felt that 430 were not worthy of our consideration. These treaties were
signed by the President of the United States, or a proper
representative, and signed by the chiefs and great leaders of Indian
lands.
We said, ``You give us this land, and we will provide you with
help.'' Mr. President, 430 are still in the files. The reasons are very
simple. After these treaties were ratified and signed by the President
and sent to the Senate, they found gold or they found oil or people
wanted to settle on their lands. I am happy to say we did ratify some--
370 of them.
History shows that we proceeded to violate provisions in every single
one of them. The reasons are easy. Whenever this Nation was confronted
with a choice of priorities--what is more important, U.S. attorneys or
the plight of the Indians--the Indians always came out at the end. It
never failed.
That is the history of the United States. So today, instead of owning
this land, they have dominion over 50 million acres. Last August, a few
weeks ago, it was announced by the Labor Department that the
unemployment rate of this land was 5.6 percent; in Indian country, the
average is over 40 percent. In some of the reservations, it gets closer
to 90 percent. It is a sorry sight, but 13 percent of the families of
this land live in poverty below the poverty line; in Indian country, it
is 51 percent, half of the families. In most instances, the only legal
assistance available in Indian country is through this program, the
legal services program.
I am not speaking of $340 million. I am not speaking of offsets. I am
speaking of $10 million. The Domenici amendment includes $10 million, a
program that has paid for the services of 150 lawyers to deal with the
problems of Indians throughout this land. There are 33 legal service
programs and they service 2 million Indians living on reservations.
Without these resources, Mr. President, these tribes and these
Indians would have no access to legal assistance. I do not think any of
my colleagues would think for a moment that law firms would open up
their branches in a Hopi mesa or in some Pueblo Tribe. I cannot think
of any law firm opening up their practices in Navajo land. There they
are almost always located far away from the urban centers of this
country.
Lawyers do not find it profitable to go to Indian country; 80 percent
are unemployed, 50 percent of the families are below the poverty line--
they cannot pay any lawyers's fee. They have to depend upon legal
assistance and legal services program.
Mr. President, I rise to support the Domenici amendment because it
has the sensitivity to recognize our obligations. It is a small amount,
$10 million. I am sorry to say the committee bill does not involve $10
million. I believe a clarification of this point is necessary.
The distinguished Senator from Texas noted that this amendment, the
committee amendment, was adopted by the subcommittee and adopted by the
full committee. Technically, that is correct.
In the subcommittee, we were all told, ``Let's not take up matters of
controversy.'' That is a practice of the Appropriations Committee.
``Let's not waste our time. Let's not take up matters of controversy.
Let's wait until we get to the floor.''
The same thing happens in the full committee. Otherwise, we would
still be in that room, S-126, debating this measure.
Mr. President, I have no idea, because the votes were not taken, but
I have a feeling that if votes had been taken in the full committee,
the Domenici amendment would have been adopted.
Mr. President, I hope my colleagues will not place too much weight
upon the statement that this was adopted by the subcommittee and
adopted by the full committee. This is where the controversy is
debated. This is where the major decisions of the Appropriations
Committee are determined.
Mr. President, I speak and I rise to support the Domenici amendment.
It fulfills our obligations as those who followed our forefathers. I
think it is about time we maintain and keep our promises.
The PRESIDING OFFICER. The Chair recognizes the Senator from Arizona.
Mr. McCAIN. First of all, I want to thank the Senator from Hawaii for
his very powerful statement about conditions in Indian country. It has
been my great honor and privilege to work with him for many, many years
on Native American issues. I know of no greater advocate for native
Americans than my dear friend from Hawaii.
However, he and I have a very different view of the impact of the
legislation as proposed. I will ask my friend from Texas in a minute to
respond to a couple of questions.
The fact is, in this present legislation, we have for the first time
carried out the intent of the government-to-government relationship and
respectful tribal sovereignty which we have sought for years.
This legislation, as crafted by the Senator from Texas, provides for
direct block grants to tribal governments for legal services on the
same terms as State governments.
To me, that is a major and important step forward. The present
legislation also calls for the State or tribal governments with
significant numbers of Indian households below the poverty line to
receive 140 percent of what they would otherwise receive. I have not
seen that before. Now, the Domenici amendment, as I understand it,
strikes that provision of the bill. It strikes section 120 of the bill
as reported.
If the Domenici amendment is adopted, then we will lose that
government-to-government relationship. We will lose the 140 percent of
what they would otherwise receive. Frankly, I do not understand why all
of us would not be supporting provisions that provide direct block
grants to the tribal governments--which is entirely in keeping with
what I have been trying to do for the last 13 years, that is, respect
tribal sovereignty--and provide the funds directly to those tribes.
If the manager of the bill, my friend from Texas, would respond, is
it not true that in this legislation, in his proposed legislation, the
States or tribal governments with significant numbers of Indian
households below the poverty line would receive 140 percent of what
they would otherwise receive? Is that a correct statement on my part, I
ask the Senator from Texas?
Mr. GRAMM. That is a correct statement. States that have substantial
Indian population will receive 140 percent of what would be their
normal allocation. This was the amendment offered in committee by
Senator Stevens, aimed specifically at dealing with this problem.
Mr. McCAIN. Is it not true that this is the first time that we have
made this kind of special consideration for native Americans, that
would give them as much as 140 percent of what they otherwise would
receive? Is that a correct statement?
Mr. GRAMM. That is correct. As far as I am aware, this is the first
time a special provision has ever been made for Native Americans.
Mr. McCAIN. Is it also not true the tribes are block granted these
funds outside of any involvement on the part of the State, which is in
keeping with the government-to-government relationship that we are
trying to achieve?
Mr. GRAMM. It is true. In fact, the money goes directly to the tribe,
bypassing the State.
Mr. McCAIN. The Domenici amendment, as I understand it, strikes the
provision in section 120 of the bill we were just talking about; is
that correct also?
Mr. GRAMM. That is correct.
Mr. McCAIN. I have to say, in all due respect to my friend from
Hawaii, my dear, dear friend from Hawaii, and my friend from New
Mexico, why we would want to destroy what is clearly a very important
step forward in this process, it is something, frankly, I cannot
support. I hope Senator Domenici will modify his amendment, would seek
to modify his amendment to give 140 percent of present funding to areas
where
[[Page S 14601]]
Indian households, significant numbers of Indian households below the
poverty line, would receive those extra benefits; that he would modify
his amendment that would provide for direct block granting.
It is not so important to me, very frankly, how much money there is,
which is obviously one aspect that is important. But, for us to filter
these moneys through the States, simply does not work on any program.
I urge my colleagues, who are interested in how this legislation
treats native Americans, to reject the Domenici amendment.
I yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from Hawaii.
Mr. INOUYE. Mr. President, if I may briefly comment on the statement
just made, the committee amendment contributes funds to States on the
basis of the census. Yes, it does say Indians should get 140 percent
more than other Americans. Under the present program, the program that
is now in effect at this moment, Indians receive about 5 times what we
in Washington, or New York, or Chicago receive. For obvious reasons,
Mr. President: 51 percent live in poverty; 80 percent are unemployed.
It should be 5 times. If we adopted the committee amendment, it will
not be 5 times; it will be less than 2 times. In fact, the present
scheme is not sufficient but it is much, much better than what the
committee amendment proposes.
So I hope my colleagues will support the Domenici amendment.
The PRESIDING OFFICER. The Chair recognizes the Senator from Maine.
Mr. COHEN. Mr. President, I rise in support of the Domenici
amendment. I would like to address a comment made by the Senator from
Texas. I think he is exactly right. This is a matter about choices. We
are called upon to make choices each and every day in this Chamber.
When it comes to priorities, for example, the Senator from Texas
cited requests from the FBI Director or from the Clinton White House.
If we look at the defense bill, the Clinton White House did not request
money for the B-2 bomber. The Secretary of the Air Force did not
request money for the B-2 bomber. Somehow, $500 million is added for
the B-2 bomber program, just another downpayment on a $30 billion
project. That is a choice that has been made. It does not apply to this
particular bill, but we make choices.
Would I rather see $500 million applied to other programs? Low-income
heating assistance? Assistance for the poor? Feeding programs for
children? I would put my priority over there. But soon we will be
presented with a measure that will add another $500 million to keep a
program alive, a program the Pentagon is not even requesting.
So, we are faced with choices. I took the floor the other day in
opposition to the space station--a $100 billion program. I think we can
find better ways of spending $100 billion--such as satisfying our
research and development needs in medicine--than to put it in a space
station which is going to cost us more and more as our European
partners decline to make their contributions.
As the Senator from Texas has articulated the issue, he said,
basically, if you are for more prisons and prosecutors and taking drug
addicts and pushers and terrorists off the streets, then you will
support him. But if you are in favor of protecting the poor or
providing legal services to the poor, if you want to have that kind of
a dichotomy, that kind of a balance, then you will support Senator
Domenici.
Really, it is a nice positioning on the part of the Senator from
Texas. But it seems to me that we have an obligation to provide poor
people in this country with an opportunity to get to the courthouse. It
is something that every one of us enjoys. We can afford it. But in this
bill, we are saying, ``Poor, no longer will you have a Legal Services
Corporation. We do not like this structure. It has a left-wing agenda.
We do not want any left-wing agenda.'' But I submit, if we genuinely
aspire to have a system of ``Equal Justice Under Law,'' as it is
written on the front of the Supreme Court, then our neediest citizens
must have access to that system.
The facts simply do not support the contention that legal services
organizations are promoting a left-wing agenda. About one-third of the
cases involve family violence. We have a serious problem in this
country dealing with family violence. People are being abused. There
are 52,000 clients seeking protection from abusive spouses, who are
represented by attorneys funded through the Legal Services Corporation.
There are 240,000 poor senior citizens who are represented by legal
services attorneys. Tens of thousands are represented in landlord-
tenant disputes. Tens of thousands were assisted in applications for
public benefits. But our answer is, ``We do not want this structure
anymore. We do not want a Federal hand in this anymore. We want to turn
this all back to the States.''
By the way, you do not just turn a Federal program back to the States
at no cost. Under the block grant proposal, 50 separate States, with
their own bureaucracies, will have to administer the funds. And unless
the Domenici amendment is passed, none of the funds can go to a legal
services organization; they can only go to individual lawyers. If you
take away the Federal structure and you prohibit money from going to
established organizations within the State, the funds must go to
individual attorneys. Then, eventually, you will find very little
representation for the poor.
``Let the private lawyers take care of this,'' you say--pro bono
work. I used to do a lot of it myself. I used to think I had an
extension of the Pine Tree Legal Assistance operation in my law firm
because there were a lot of poor people who came to the door who simply
could not afford to pay the legal fees, and I represented them.
But we are deluding ourselves if we think we are going to see an
expansion of these points of light, that many thousands and tens of
thousands of law firms are going to undertake representation for all of
the needs of the poor or take on and fight the landlord-tenant
disputes. How many poor people have complaints against the landlords--
slum lords, in many cases--of uninhabitable, rat-infested, asbestos
ridden residences. We say, ``Well, tough luck. You are poor. You do not
get representation.''
The law firms are not going to give you their youngest attorneys.
They are on corporate mergers now. That is a higher priority at the law
firm. They say, ``We have big mergers taking place. We do not have time
to allow you to engage in bringing a lawsuit to protect people from
uninhabitable conditions.''
Mr. President, I am not entirely satisfied with the Domenici
amendment, as it places unprecedented restrictions on legal services
organizations such as Maine's Pine Tree Legal Assistance. Unlike
previous LSC legislation, this bill not only places restrictions on
Federal funds, it also restricts how organizations such as Pine Tree
may spend money received from State grants, State bar associations, and
private donations. This is a Federal mandate. We are telling States
like Maine that they cannot give grants to legal services organizations
to represent immigrants or pursue class action lawsuits.
There are times, in my own State, when State legislators ask legal
services attorneys for advice about how they should shape laws and
regulations to help out people in need. We cannot do that under the
Domenici approach. These attorneys cannot be called to testify before
legislative hearings. They cannot file class action suits. So basically
it is pretty restrictive. The amendment does not go as far as I would
like to see it go.
Let me provide one example. A number of years ago there was a lapse
in a Federal program that provided assistance for displaced workers.
The Maine Legislature requested advice from Pine Tree Legal Assistance
to determine how the law could be changed to ensure that these workers
could qualify for State unemployment benefits. But under the amendment,
Pine Tree would have to remain silent; its expertise would be wasted.
I am going to support the Domenici amendment, however, because I
believe we have an obligation to see to it that poor people in this
country have access and keys to the courthouse. There is a major trial
taking place right now which thankfully is coming to a close. Not many
people in this country can afford that kind of representation.
[[Page S 14602]]
That is in a criminal case. I am talking about the civil actions now.
Not very many people in this country, especially those at the very
lowest of the economic strata, can call up an attorney and say, ``Would
you represent me against this claim? Would you represent me against my
husband or against my wife? I am being abused. I need help.'' ``Sorry.
We do not have any money to help you.''
Mr. President, I hope my colleagues will support the Domenici
amendment.
Mr. FEINGOLD. Mr. President, I rise today in support of the amendment
offered by the Senators from New Mexico and South Carolina. This
amendment will allow continuation of legal services to low-income
individuals.
The credibility of the American legal system demands that all
Americans, regardless of their economic station in life, have access to
the courts. To put the promise of justice beyond the reach of a group
of people because they cannot afford proper representation defies the
notion of equal justice for all.
Since its inception in 1974, the Legal Services Corporation has
worked to provide equal access to the justice system to a group of
Americans which is sadly growing larger in number and increasingly
disenfranchised from our democratic way of life.
An editorial in the Milwaukee Journal Sentinel recently noted that
the Legal Services Corporation helps people in very basic, and
important ways. They help:
. . . the child who needs health care, the elderly couple
negotiating their way through Medicare, the battered woman
who needs help getting a divorce and child custody, the
victims of consumer fraud.
I think we would all agree that these are all laudable goals. And
yet, if you look at the language contained in H.R. 2067, you will see
that the battered woman who needs help getting a divorce and child
custody is foreclosed from utilizing Legal Services for that purpose.
What could be so controversial about helping a battered woman and her
children out of a violent and abusive situation? Nothing. And yet, the
language contained in the bill currently being considered, prohibits
the use of funds to obtain a divorce.
However, Mr. President, this very troubling provision is but one
example of the shortsightedness of eliminating the Legal Services
Corporation. Although it is not without its detractors, the Legal
Services Corporation provides basic legal services to the poor of this
Nation in an efficient, cost-effective manner.
As has been noted many times, only 3 percent of the total Legal
Services appropriation is used for administrative purposes. The
remainder is sent out to the various legal service organizations
throughout this Nation. Ninety-seven percent of the Legal Services
Corporation's funding goes directly to local programs to address
priorities established at the local level.
Throughout this Congress we have heard time and time again that
decentralization is the key to many of our problems--let the people in
the communities make the decisions. Legal Services does that now and
this bill eliminates it.
Ninety-seven percent of the Corporation's funds are distributed
directly to organizations like Legal Action of Wisconsin, Western
Wisconsin Legal Services, Wisconsin Judicare, and Legal Services of
Northeastern Wisconsin. All of these local organizations know and
understand the needs of the poor throughout the State of Wisconsin and
are dedicated to addressing them. Under the present system, they make
the decisions, they set the priorities.
Not only does the language in the bill eliminate the decentralized
system that exists today, it replaces it with a more onerous and
traditional inside the beltway style bureaucracy. Under the proposed
language, the Department of Justice would become the primary grant
administrator to the States. The money no longer goes directly to the
providers, it goes to the States. The States in turn establish their
own administrative structure to oversee and administer the money to the
local organizations, which ultimately provide legal services for the
poor. These additional layers of bureaucracy will increase
administrative costs and result in less money being available to help
the poor.
If the goal of this body is to slow delivery of legal services to the
poor and to create more bureaucracy, then we should support the
proposed block grant. However, if the goal is, as it should be, to
maintain a workable delivery system of legal services to the poor in
this Nation, then the efficiency, flexibility and the decentralization
of the current Corporation is the obvious choice.
Mr. President, we often hear about the need for private enterprise to
pick up where Government leaves off. The citizens of Wisconsin are very
fortunate to have a private bar dedicated to ensuring legal
representation to all people. I know that other Senators can say the
same of their home States.
But we delude ourselves if we think these dedicated private attorneys
alone can meet the enormous needs of the poor. I have been contacted by
many organizations from Wisconsin, all concerned about, and working to
help, the poor in our State. Each of these groups, be it the Wisconsin
State Bar, the Association for Women Lawyers, the Milwaukee Bar
Association or any of the others that contact me, knows that the
elimination of the Legal Services Corporation will seriously hamper the
ability of this Nation's poor to obtain legal representation.
If we follow the committee language, and effectively exclude millions
of poor Americans from one of this Nation's most important
institutions--the justice system--we risk creating a society where
justice exists only for those above the poverty line. Such a result is
unacceptable.
I appreciate that no one approves of every case that legal services
undertakes, but the proposed amendment seeks to address some of the
concerns that people have raised regarding the scope of Legal Services
activities. Some may think the restrictions in the amendment go too
far, others, not far enough. However, we must not lose sight of the
fact that our goal should be to maintain a system of legal
representation for the poor that allows them to avail themselves of the
protections of the American justice systems.
Protections that many of us, the more fortunate in our society, may
take for granted. However, imagine the importance we all would place in
these protections should they disappear or be placed just beyond our
grasp. And yet, the language in this bill potentially subjects millions
of poor people in this Nation to just such a reality.
The amendment offered by the Senators from New Mexico and South
Carolina acknowledges the essential fact that we must preserve the
access of the poor in this Nation to the judiciary. This amendment
allows this Nation to move ahead toward equal justice for all, rather
than retreat from this noble goal. Accordingly, I urge my colleagues to
support this amendment.
I ask unanimous consent that an article in the July 19 edition of the
Milwaukee Journal Sentinel entitled ``Legal Services for Poor Need
Protection'' be printed in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
[From the Milwaukee Journal Sentinel, July 19, 1995]
Legal Services For Poor Need Protection
The Legal Services Corp., which gives the poor access to
lawyers, has been fighting for its survival this year as
never before. The agency still stands. But in House action so
far, its funding has been lopped by a third and major
restrictions have been placed on its activities.
A weakened agency still does not satisfy the extreme right,
which has put, you might say, a contract out on the
organization. Some congressmen are expected to try to make
good on that contract in House action this week.
House members most certainly must rebuff this attempt to
kill Legal Services, the major source of funds for Legal
Action of Wisconsin. America will have no hope of being a
fair society if the poor lack reasonable access to lawyers;
justice simply won't be served.
We are not talking big bucks here, at least not by federal
standards. The proposed budget for next year stands at $278
million, down from the current $415 million. Legal Action's
share currently is $2.4 million.
Like its counterparts across the country, Legal Action of
Wisconsin represents poor people in myriad civil cases--the
child who needs health care, the elderly couple negotiating
their way through Medicare, the battered woman who needs help
getting a divorce and child custody, the victim of consumer
fraud.
The firm doesn't handle frivolous cases. Most are settled
without even going to court. And for want of staff Legal
Action serves only a small share of those who need its help.
[[Page S 14603]]
Though only a tiny fraction of Legal Action's work, class
action lawsuits draw the most attention because of their wide
impact. Far-right critics act as if federally financed law
firms think up exotic challenges to the status quo just to
promote a far-left agenda. But these legal challenges flow
out of the real needs of poor people.
For instance, mothers complained to Legal Action that
because they couldn't afford child care, they were having a
tough time getting training or education to get off welfare.
Legal Action successfully sued the state, forcing it to
satisfy its obligation to the federal government to pay for
child care for 4,000 parents.
Unwisely, restrictions in the current House bill would
prevent such lawsuits in the future. Class action suits
against government and welfare mitigation would both be
banned.
The most immediate threat, however, is a move to kill Legal
Services altogether. Fairness demands that the House turn it
back.
Mr. FAIRCLOTH addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from North
Carolina.
Mr. FAIRCLOTH. Mr. President, thank you.
Mr. President, I want to commend the Senator from Texas for his
leadership and what he has done to make the changes in the Legal
Services Corporation.
Mr. President, House and Senate conferees are expected to begin
meeting soon to consider welfare reform legislation. I sincerely hope
that the conference report contains illegitimacy provisions like a
family cap and a restriction on cash benefits to unwed minor mothers.
But no matter how strong the welfare conference report turns out to
be, it will not succeed in ending welfare dependency unless we also
reform the Legal Services Corporation, the agency which has for years
furnished the rope to hang welfare reform efforts in the States.
For example, the State of New Jersey was granted a waiver in 1992 by
the U.S. Department of Health and Human Services to institute a family
cap provision denying an increase in welfare benefits for women who
have more children while already receiving welfare.
The Legal Services Corporation sued the New Jersey Department of
Human Services to challenge the family cap. Rightly, the U.S. District
Court decided that it is perfectly legitimate for the State of New
Jersey to implement a family cap.
But they had to defend it against the Legal Services Corporation.
Welfare reform is not the only arena where Legal Services attorneys
have defied common sense and hurt the very people whose interests they
claim to represent and have sued the people who are paying them.
In my own State of North Carolina, in a pattern that is repeated all
over the country, Legal Services attorneys have caused growers who
employ seasonal workers to lose millions of dollars defending
themselves against frivolous nonexistent lawsuits. They have extorted
money from growers by threatening them with lawsuits unless they settle
up--to the tune of $500 per nonexistent violation, per worker.
As the Senator from Maine talked about some of the people not having
the money to sue and the need for legal services, what we are talking
about here are small people trying to make a living defending
themselves against legal services, and they do not have the money to
hire the lawyers either.
Even for a small family farmer with 10 acres or less of crop acreage,
this can add up to tens of thousands of dollars. For a small farmer,
that can add up to bankruptcy. And a bankrupt farmer can not hire
seasonal laborers or anybody else.
In recent years, North Carolina produce farmers have been a target of
Legal Services attempt to destroy the Department of Labor's H2A
Program, which brings in temporary foreign workers to harvest crops for
farmers who cannot find enough domestic workers.
But Legal Services have harassed these people to the extent that the
program is no longer functioning. This program is designed to help
farmers and workers. But they have been harassed by the Legal Services
so often that they have simply stopped using it or the farmers have
been put out of business.
Legal Services is nothing more than an entitlement program for
activist lawyers. We simply subsidize them and pay them.
My colleague and friend from Texas, Senator Gramm, has a reasonable
and innovative block grant solution which I strongly support. I
personally would feel better to end the disastrous program of Legal
Services altogether. But we cannot do that.
Therefore, I oppose adamantly the amendment by the Senator from New
Mexico, and I urge my colleagues to do the same and to support the
Senator from Texas. He is doing what needs to be done.
Mr. President, I yield the floor.
Mr. WELLSTONE addressed the Chair.
The PRESIDING OFFICER (Mr. Grams). The Chair recognizes the Senator
from Minnesota.
Mr. WELLSTONE. Thank you, Mr. President.
Mr. President, I agree with my colleague from Maine, Senator Cohen.
Mr. President, what is at issue here, when all is said and done, is
whether or not we as a nation are going to support the idea that each
and every person, regardless of their income, is going to receive equal
protection under the law. That is really what having a Legal Services
Corporation is all about. Ensuring that people are treated equally
under the law. Not just the wealthy but, everyone.
Mr. President, this is in the very best of the tradition of our
country. Speaking for Minnesotans, this is the Minnesota ethic.
Minnesotans believe in equal protection under the law. Minnesotans
believe that regardless of a person's station in life he or she should
be entitled to representation in our court system.
Mr. President, I will reluctantly support the Domenici amendment. To
do otherwise is to have a proposal that will essentially eliminate what
I would call the heart and soul and integrity of the Legal Services in
the United States of America. In that sense, I believe Senator Domenici
has made an enormous contribution. But I have some serious misgivings
about the Domenici amendment albeit, I admire what the Senator from New
Mexico is trying to accomplish. I believe he has made a real
contribution toward fairness in our country through his amendment. But
by the same token, this is a very steep price we will pay for rescuing
Legal Services. There is a price for agreeing to the restrictions in
the Domenici amendment.
Mr. President, we had this debate before in this Chamber last
Congress. A debate that I was very active in. It was a debate with my
colleague from Texas, as a matter of fact.
When you have a restriction that says you are going to have a
prohibition on welfare reform litigation, then I would ask the
following question: Has this just become a kind of mean season on the
poor of this country?
Mr. President, we are talking about children. The most vulnerable
members of our society. Not too long ago we made a profound mistake in
agreeing to the so-called welfare reform measure that passed this body.
At that time, I think Senator Moynihan said it better than anyone. He
essentially said that for the first time in over a half a century, we
as the U.S. Senate, will say there will be no floor beneath which
children could fall.
Mr. President, you and I have had a debate on this issue. It has been
an honest difference of opinion. But if we are going to say that, and
we are also going to say there is no kind of national community
commitment, no sort of obligation, responsibility or standard in
relation to nutrition, in relation to making sure that every child at
least has an adequate diet, that in and of itself I think is a turning
back of the clock, away from the very best of this country, because I
think it will be more children are going to go hungry and more children
are going to be impoverished.
Now what we have is a restriction that says in addition to no
national standard, no floor, there will be restrictions on Legal
Services lawyers who rightfully want to challenge any of the laws or
practices that are called welfare reform.
How can we argue that Legal Services lawyers will not be able to
issue any challenges when we do not know exactly what is going to
happen back
[[Page S 14604]]
in the States and back at the county level.
There are all kinds of examples. Suppose, for example--I had an
amendment which dealt with the whole issue of domestic violence--you
have a woman who has been battered. Imagine what it would be like if
you had been battered steadily for 2 years. You have two small
children, and you are told you go into a work program or you lose your
assistance. Suppose she could not because she had not healed; she is
not ready to work physically or mentally. Under these draconian
restrictions a woman would not be able to receive Legal Services
representation to challenge this particular restriction. Where is the
fairness in that? Is this just? I submit to my esteemed colleagues,
that this is not justice and it is not fair.
Mr. President, this strikes me as just being a mean season on the
poor. Senator Domenici has made a real contribution because he is
attempting to make sure we do not pass any extreme proposals, which is
I believe the Gramm proposal is about. But these restrictions trouble
me, and these restrictions should not be the price people pay to
receive the most basic legal representation to protect their rights.
I hope that when it comes to authorization we will have a debate, and
we will be able to come up with constrictive solutions to some of these
problems.
Mr. President, what happens if a mother is told she has to work but
because of a prior work experience she has a bad back? People quite
often think it is an excuse--she has a herniated disk, and she cannot
do the kind of physical work she used to do. She says I can no longer
perform this type of work, or there is no one to take care of my small
children, and she might be cut off. She has no legal representation?
What happens if we go back to what used to be the man-in-the-house
rule, and it is decided at the county level that a woman who is single
now, has been through a divorce, and a male friend visits her one day,
and somebody is there from the welfare department who determines she
should be cut off because there is a man in her house that can support
her. Will she have legal representation to challenge this kind of
determination? No.
I do not know how we can have this kind of restriction when we do not
even know how it is going to be at the State and local level. What if
it is repressive? What if it is harsh? What if it is degrading? What if
it violates the Constitution of the United States of America? Are we
saying a whole group of citizens, which, by the way, are women and
children, are not going to have legal representation?
Mr. President, the Gramm proposal goes beyond the goodness of
America. The Gramm proposal to essentially gut legal services goes
beyond the goodness of Minnesota. I believe the Gramm proposal will be
voted down. I think the Domenici amendment will pass, and it should
because the whole idea of equal protection under the law is an idea
that fires the imagination of Americans. This about basic fairness and
justice.
What I worry about as I look at these restrictions, whether it be
welfare or whether it be a broad definition of lobbying, or whether it
be advocacy or no class action lawsuits, is that I believe we are
heading in the wrong direction because ultimately what this debate is
about--is about power and powerlessness in America. And if you are
going to say that, yes, there will be funding for Legal Services but we
will so severely restrict what you can do that those who are powerless
do not have the ability to challenge some of the powerful institutions
in America, then we just deepen all of the inequalities.
Hospitals are supposed to take care of sick people. Welfare agencies
are supposed to be concerned about the welfare of the people they
serve. Schools are supposed to educate children, all children. Housing
agencies are supposed to be concerned about housing, housing for all
people. It is written somewhere that just because you are poor, you do
not get adequate representation.
Are we now saying that a whole group of citizens in America,
disproportionately women, disproportionately children, are no longer
going to have access to lawyers who can challenge some of those
discriminatory policies?
I will tell you what this is going to do, Mr. President. It is going
to breed contempt for our legal system among the very citizens we do
not want to see have that contempt.
We have young people who are growing up in communities across our
country, in more brutal circumstances and conditions than any of us
want to admit. I think the Senator from Hawaii, [Mr. Inouye], has
probably been the champion for people in Indian country. He knows their
condition better than maybe any other Senators here.
If we have young people growing up in more brutal circumstances than
any of us want to face up to, and we are now going to severely restrict
what Legal Services lawyers can do, we are just going to breed contempt
on the part of those young people in this system. They are going to see
no way that they can seek redress of grievances through our system;
they are going to see a legal system they are not going to believe in;
they are going to see a political system they are not going to believe
in; they are going to see a nation that they believe betrays the very
idea of equal justice under the law. Where do you think that is going
to take us?
When young people growing up in poverty, growing up in impoverished
communities, growing up under brutal circumstances do not see any way
through the legal system that they can seek redress of grievances, do
not see a system through which there is an opportunity for them working
within our system in a nonviolent way to improve their lives, it
creates an enormous vacuum.
I will tell you what fills that vacuum. I have been to a lot of these
communities. What fills that vacuum is the politics of despair, the
politics of cynicism, and all too often the politics of hatred.
Mr. President, the Gramm approach is to extreme; it goes too far.
What the Senator from Texas has done is to belie the best of America.
Senator Domenici is right with his amendment. But as to the
restrictions in the Domenici amendment, I hope later on as we move
forward on legal services, we will be able to have a good discussion
and we will be able to make the kinds of changes that will provide poor
people in America with strong legal representation.
Just because you are poor does not mean you should not be able to
challenge those who have the power in America. Just because you are
poor or just because you are living in a poor community or just because
you are a whole community that is denied a voice or just because you
are a whole community that does not have the power, does not mean you
should not be entitled to some legal services lawyers that can work
with you. It should not mean you cannot be entitled to challenge the
policies and practices that discriminate against your families, that
hold your families down, that lead to inadequate housing, that lead to
your children not having an adequate education, that lead to health
care institutions that sometimes do not take care of you.
You should be able to challenge those policies and practices. You
should be able to challenge those institutions. That is the best of
America. That is equal justice under the law. With these restrictions,
that is not going to happen. So, Mr. President, to conclude, I will not
cosponsor the Domenici amendment because of the restrictions, but I
certainly will vote for it.
I think the Senator from New Mexico, my friend, is making a real
contribution: A little more fairness, a little more justice, a little
more compassion, a little bit more of what is right in America.
My God, Mr. President is this the mean season on the poor? I hope
when it comes to authorization, we will be able to look at these
restrictions and we will be able to make the kinds of changes that will
lead to legal services, and will provide people in this country, poor
people, whether they live in urban America or rural America or suburban
America, with equal protection under the law. That is what this
amendment is all about.
I yield the floor.
Mr. STEVENS. Mr. President, I support the Domenici-Hollings amendment
restoring funding for the Legal
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Services Corporation. This amendment will ensure that poor people in
underserved ares continue to get legal advice. The Domenici-Hollings
amendment contains important restrictions on the use of funds by the
Legal Services Corporation. These restrictions, which were also
supported by the House, are necessary to ensure that abuses that have
occurred in the past do not continue. The funding that is provided
under this amendment can not be used for things like class actions,
lobbying, or representing illegal aliens. These restrictions are to
ensure that funding is used to provide the traditional legal services
that are most needed by poor people.
I want to thank the Senator from New Mexico and his staff for
accommodating the special needs of Native Americans and those in areas
like Alaska where travel to remote villages increases costs. Last year
the Alaska Legal Services Corporation successfully completed 4,629
cases. In most cases the people who the Corporation represented had no
where else to turn for legal advice because they could not afford to
hire an attorney.
The poor people in my State--and across America--need the help of the
Legal Services Corporation. I urge my colleagues to support this
amendment.
Mr. DOLE. Mr. President, there are few examples that better
illustrate the case of good intentions gone awry than the Legal
Services Corporation.
Created in 1974 to relieve the burden of an expensive legal system
for poor Americans, the Legal Services Corporation has become in many
instances the instrument for bullying ordinary Americans to satisfy a
liberal agenda that has been repeatedly rejected by the voters.
Mr. President, I wish to make clear at the outset that I support
efforts to help low-income Americans by ensuring that they are not shut
off from legal redress, especially where important constitutional
rights are concerned. And I also have no doubt that the existing legal
services framework has produced good programs and employs good people
who are devoted to providing the very best representation to those who
otherwise could not afford it.
But as the Washington Post noted on September 18, 1995, the model of
providing legal services to the poor has become twisted into something
``more ambitious: a powerful network of poverty lawyers funded by
Washington and backed up by university-based centers of expertise, that
would help not just individual clients but `the poor' as a whole.''
There are two points to be made about this outcome: First, despite
many dedicated lawyers who have undoubtedly helped poor clients through
Legal Services grants, the inevitable result of this shift in focus has
been to hurt those whom the Corporation was created to help. The
impoverished individual who has run-of-the-mill, but important, legal
needs is shunted aside by Legal Services lawyers in search of sexy
issues and deep pockets. And in some cases the agenda of helping the
poor as a class has perpetuated and deepened the worst aspects of a
welfare state that has utterly failed poor Americans.
Second, this twisting of the original purpose of the Legal Services
Corporation is antidemocratic. In most cases, what passes as a class
action lawsuit--whether it addresses welfare benefits, or employer-
employee relations--is nothing more than a policy dispute that should
be, and often has been, the subject of the legislative process. To
subvert the legal system in order to overturn legislative judgments is
fundamentally at odds with our system of government.
How did this happen? A lack of accountability. The very structure of
the Legal Services Corporation has produced this result. Although the
Corporation has an 11-member board, the reality is that money flows to
over 300 local nonprofit groups with attorneys accountable to no one.
This is not an accident. With the best of intentions, the idea was that
the Corporation should be insulated from political pressures. But this
laudable goal was taken too far. Laws addressing the misappropriation
of Federal funds, for example, are not even applicable to the
Corporation under the terms of the act creating it.
Thus, this is not a case of passing more laws and creating an
increasingly complex regime to govern the operation of the Legal
Services Corporation. The problem cannot be papered over. The problem
flows from the present structure of how we provide legal services to
the poor.
The time has come to end this abuse of the legal process and return
to the original purpose--providing the means to help the poorest among
us to cope with their genuine and individual legal needs.
I am committed to providing some mechanism that provides legal
assistance to the impoverished among us. But in this, as in so many
other areas, it is time to return power and responsibility back to
where it belongs--the States. Supporters of the present Legal Services
framework will undoubtedly claim that the poor will suffer. I believe
that is wrong. The legislation before us provides a responsible
response to the legitimate legal needs of the poor--a block grant
program that can be run by those closest to the needs of their citizens
and implemented with the appropriate safeguards that have heretofore
eluded the Federal Government.
Mr. President, I urge my colleagues to support repeal of the Legal
Services Corporation Act.
Mr. GRAHAM. Mr. President, as we enter into the debate as to whether
we should convert yet another Federal program into a block grant, it
would behoove us to consider fully the wise comments of our former
colleague, Gov. Lawton Chiles. I ask unanimous consent that the
following letter from Governor Chiles, which questions the wisdom of
transforming the Legal Services Corporation into a block grant, be
printed in the Congressional Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Office of the Governor
Tallahassee, FL, September 14, 1995.
Hon. Bob Graham,
U.S. Congress, Hart Senate Office Building, Washington, DC.
Dear Senator Graham: I am writing to inform you of my
position on the Legal Aid Block Grant Act of 1995 contained
in the State, Justice, Commerce Appropriations bill (HR 2076)
which would provide that funds in FY 1996 for the legal
services organizations be routed through the governor's
office of distribution.
First, I urge you to consider the efficiency of the current
system. Only 3% of the funds which are allocated are spent on
overhead, and the remainder reaches the direct delivery
system in the states. This efficiency would be difficult to
duplicate at the state level, especially as we will have to
invent a delivery system at a time of fiscal change.
Second, after a review of this matter and its implications
for State government responsibility, I have determined that
the burden to Florida is great and that there is no increased
benefit to the state in channeling such funds through this
office.
In summary, I am asking you to vote against a block grant
proposal for legal services. As usual, I appreciate your
efforts to achieve fiscal responsibility while providing for
the needs of our less fortunate citizens.
With kind regards, I am
Sincerely,
Lawton Chiles.
Mr. BIDEN. Mr. President, I stand here to pledge my support for the
amendment offered by my colleague, Senator Domenici, which preserves
the Legal Services Corporation.
This organization has been both efficient and effective in providing
legal services to the poor, so that those who are most vulnerable in
our society have access to the courts, not just those who can afford
it.
Contrary to the rhetoric of some of my colleagues who oppose the
Domenici amendment, the vast majority of cases handled by the Legal
Services Corporation are not controversial--they are individual cases
arising out of everyday unfortunate problems--losing a job, suffering a
serious illness, facing the breakdown of family relations of simply
dealing with Government redtape.
As someone who has long sought to do what I could do to prevent and
to fight against family violence, I am most grateful for the help that
the Legal Services Corporation provides to victims of family violence.
In fact, representation of victims of family violence is the single
largest category of cases handled by local legal services programs--
accounting for one out of every three cases processed last year.
In 1994 alone--the year we passed the Violence Against Women Act--
local
[[Page S 14606]]
legal services programs handled more than 50,000 cases in which women
sought legal protection from abusive husbands, and over 9,000 cases
involving neglected and abused children.
This amendment places a number of prohibitions on the Legal Services
Corporation, but keeps this much-needed organization intact, enabling
it to continue to provide traditional legal services to those who
desperately need them.
I hope all of my colleagues will join me in supporting Senator
Domenici's amendment.
Mr. BINGAMAN. Mr. President, I speak on behalf of the Legal Services
Corporation.
In my home State of New Mexico, the Legal Services Corporation has a
proven track record. Without this program, there are few alternatives
if any for the poor to have access to the legal system. Many of the
people who benefit from Legal Services were once considered part of the
middle class. However, as a result of unemployment, illness, divorce or
aging, these people are now left without the means to afford a private
attorney. Some of the people who are helped by this program are: the
senior citizen living on social security in rural New Mexico who is a
victim of a consumer fraud scam; the disabled veteran who has had VA
health benefits denied; the woman who has children and is trying to
escape form an abusive relationship.
There are many reasons to vote against the block grant approach
adopted by the appropriations committee. By eliminating the Legal
Services Corporation, a new bureaucracy is created because States now
have to set up administrative structures to fund and oversee legal
services programs. This new bureaucracy with higher administrative
costs will soak up much needed resources. Further, the block grant
proposal limits legal representation to the ``most basic needs.'' For
example:
A person may still be represented in an eviction case; there will
still be services available to probate a will; in cases of child abuse;
in seeking a protective order; file a petition for bankruptcy; a quiet
title action.
However, the question becomes: Are these the only legal services that
the poor seek? Obviously, the answer is no. Other possibilities have
been prohibited by the block grant and that is the heart of the problem
with this appropriations bill. Here are some types of things that will
not be permitted under the block grant: assistance in a divorce
(applies to abusive situations); abortion; applying for veterans
benefits; obtaining home ownership; credit access; Indian/Tribal Law
issues; paternity; adoption; rights of the physically disabled; and
consumer-related law (elderly scams).
There are many reasons to support the Legal Services Corporation, but
the primary one remains the reason this program was created in the
first place--it is the most cost efficient way to allow the poor to
have access to our legal system. If the goal of a block grant is to
allow local control and flexibility, then the Legal Services
Corporation is already accomplishing this objective.
Mr. President, this particular system is not broken. The Legal
Services Corporation uses only 3 percent of its budget towards
administrative expenses. The decision making is divided among those
with knowledge in poverty law. Currently, the mid-level bureaucracy is
eliminated because grants do not have to be approved by State or local
governments.
In essence, this appropriations bill is placing the burden on the
shoulders of those who are not represented in this debate, the poor,
and I urge my colleagues to restore the Legal Service Corporation.
Mr. ROTH. Mr. President I would like to inquire of the Senator from
New Mexico as to the intent of his amendment with regard to the
International Trade Commission.
Mr. DOMENICI. As my colleagues know, I intended this amendment to be
the first amendment before the Senate.
I intended for some weeks to offer an amendment to retain the Legal
Services Corporation and to provide it with adequate funding to
continue providing legal assistance to those who could otherwise not
afford it.
That amendment was drafted to the bill reported by the Appropriations
Committee.
Last night the distinguished full committee chairman filed a
reallocation of funding to the subcommittee, and the Senate adopted an
amendment to restore some $400 million to various programs in the bill
including $4 million for the ITC.
This amendment made significant changes to the bill as reported, and
thus affected the amendment that I am offering with other Senators.
I would like to clarify that the intention of the Domenici amendment
is to take a reduction in the International Trade Commission [ITC] by
$4 million from the level approved in the managers amendment rather
than from the level of funding reported in the original bill.
It is not my intention to reduce the ITC by 30 percent as some may
assume from a literal reading of the amendment.
I understand the concerns of some of my colleagues over the use of
the ITC funding as an offset. As a conferee on the bill, I will work
with Chairman Hatfield to sustain a level of funding that will be
adequate to support the work of the International Trade Commission.
Mr. ROTH. I appreciate the clarification from my distinguished
colleague from New Mexico. I am greatly concerned about the impact of
the proposed appropriations reductions on the ITC. I hope the conferees
will provide the maximum level of funding possible for the ITC in the
final bill.
Mr. LAUTENBERG. Mr. President, I rise in support of this amendment to
increase funding for legal services, and to retain the Legal Services
Corporation.
Mr. President, the debate over this bill, when you get right down to
it, is a debate about priorities.
And in my view, little is more important than ensuring that all
Americans have access to justice.
After all, the principle of ``Equal Justice Under Law'' is at the
heart of our democratic system. Every American is supposed to have the
same legal rights. No matter their race. No matter their religion. No
matter whether they are rich or poor.
Today's Legal Services Corporation helps make this principle a
reality.
It protects victims of domestic violence.
It defends senior citizens and veterans against bureaucrats who
arbitrarily deny them benefits.
It forces landlords to follow the law in eviction procedures.
It stops nursing homes from dumping patients who have become
expensive or difficult to serve.
It helps the mentally ill and disabled get the benefits to which they
are entitled.
And it helps ensure that Constitutional rights are real for all
Americans, whether or not they can afford their own lawyer.
Mr. President, the need for legal services among low-income people is
intense. Over 50 million Americans are living near the poverty level,
and potentially eligible for legal services. One of every four children
under six lives in poverty.
For people like these, Mr. President, legal services can mean access
to critical support from an absent parent. It can mean a decent home to
live in. Access to health care. Access to education. Or escape from a
violent home.
Despite these critical needs, Mr. President, 70 percent of our
country's least fortunate lack access to any legal services. One reason
is that the number of legal services attorneys has been cut by one-
third since 1981.
A recent survey found that, on average, legal services programs
turned away 43 percent of eligible individuals because they lacked
sufficient resources. For some programs, the rate was as high as 60
percent.
Mr. President, given these shortfalls, we ought to be increasing
funding for legal services, not cutting it. Yet the bill approved by
the Appropriations Committee would cut funding from legal services from
$400 million to $210 million. That, in my view, would be an outrage.
This amendment would increase that level to $340 million. That does
not go far enough, and would leave the Legal Services Corporation with
a significant cut. Still, it is a big improvement. And, from all
indications, it is the best we can do for now.
I also want to express my concern about the restrictions on legal
service
[[Page S 14607]]
lawyers that are included in this amendment. For example, the amendment
would prohibit LSC lawyers from pursuing class action suits. I think
that is a mistake. If a group of poor people are harmed by wrongful
conduct, why should each person have to pursue a remedy individually?
That only increases litigation, increases costs, and makes it more
difficult for poor people to get justice. I do not think it makes
sense.
But having said that, Mr. President, I realize that many of my
colleagues feel strongly about this and other restrictions. And it
appears that at least many of these restrictions are necessary to
ensure that the program as a whole is supported and funded.
So, in conclusion, I want to commend Senator Domenici for taking the
lead in this area, and I would urge my colleagues to support the
amendment. The Legal Services Corporation deserves our support. Because
each and every American deserves access to justice.
Mr. INOUYE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The absence of a quorum has been suggested.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. GRAMM. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAMM. Mr. President, I have had an opportunity now to review
some of the restrictions on the Federal Legal Services Corporation and
its national bureaucracy that would be imposed under the Domenici
amendment.
As I said earlier, I believe these provisions are far less
restrictive than those that are in the bill, but there are several that
I want to comment on and, I think, in commenting really make the point
that as long as you have this national superstructure, you are not
going to curb these abuses.
One of the restrictions in the Domenici amendment is to limit the
ability of the Legal Services Corporation to file lawsuits that have to
do with redistricting; that is, lawsuits that have to do with deciding
where lines are drawn in terms of State legislatures and in terms of
congressional redistricting.
The only problem with this restriction is it is already the law of
the land. We currently have a ban on the ability of Legal Services
Corporation to engage in lawsuits that relate to representation and to
redistricting in legislatures and in Congress. But a perfect example of
how this fails is that this restriction was in place in 1990 when the
Texas Rural Legal Aid, which is funded by the Legal Services
Corporation, challenged a redistricting plan in Texas in that year, in
what the Bush administration saw as a violation of the congressional
prohibition on lawsuits involving redistricting.
When the Bush-appointed Legal Services Board attempted to discipline
the Texas Rural Legal Aid by reducing their funds, the Texas Rural
Legal Aid sued the Legal Services Corporation. As a result, funds
continued to be provided to the Texas Rural Legal Aid for the remainder
of the Bush administration, when the new Clinton board was seated, they
settled the case out of court.
So here is a perfect case in point where there has been a violation
of a restriction on legal services funding. They clearly violated the
rules in 1990, and when the Legal Services Board, appointed by
President Bush, tried to step in and penalize them for violating the
rules they went to court and continued to receive funds. Then the
Clinton Legal Services Board settled the case out of court.
That is a perfect example of where we already have the restriction
and, yet, with a Federal bureaucratic overlay on this program, we are
unable to enforce the intent of Congress.
A second provision I look at is a prohibition against legislative
lobbying, but there is a major loophole in the Domenici amendment on
this issue as well. The major loophole is subsection 14(b) where funds
are allowed to be used to lobby for more money and for fewer
restrictions. I am not sure what else they would lobby for, but I think
that is exactly what most people have in mind when you say that you are
limiting their ability to lobby. If they can lobby to get more money
and to get fewer restrictions, then they are clearly free to lobby.
The Domenici amendment has a requirement that there be timekeeping,
that there be separate accounting, that there be monitoring, that there
be no attorney-client waiver. And yet, routinely, these provisions are
circumvented from monitoring on the grounds of the attorney-client
privilege. I think it is a legitimate concern of whether we are going
to be able overcome the assertion of that privilege when the Legal
Services Corporation does not want to abide by the rules and when its
client does not want to abide by the rules. I would like to have some
assurances that, in fact, the rule is going to be abided by.
Another major problem has to do with public housing. In the list of
abusive cases by Legal Services Corporation, probably no list is longer
of those that I had included in the Record than the list of cases that
involves public housing.
The Domenici amendment would prohibit legal services from defending a
tenant who was charged with drug violations. But I want to remind my
colleagues that often the tenant who has the contract with the public
housing project is not the person who is charged. Often, they are
simply abetting the crime by allowing a friend or children to use their
unit of public housing for that purpose.
As I read the amendment, if they are charged with shooting and
killing someone, there is no provision prohibiting a legal services
defense. We deal only with drugs, not with guns, and not with violence.
But I think, again, when you start looking at each one of these things,
you find how very difficult it is to enforce these provisions, so long
as there is a governing entity that basically wants the Legal Services
Corporation to do these things.
I think these are very real concerns, and I think that these are
concerns that need to be dealt with.
Finally, I just want to make note, I did not mention it before, and
not that I expect that anybody is going to be greatly moved by it, but
when we adopted a budget in the Senate and in the House we called for
Legal Services Corporation funding at $278 million. The Domenici
amendment would raise that funding level to $340 million. While it is
not technically a violation of our budget, it is interesting to note
that we are being called upon here to cut Federal prosecutors, to
reduce Federal courts, to reduce funding for U.S. attorneys, to reduce
FBI funding for construction at the FBI Academy in order to fund a
level for the Legal Services Corporation which is above the level which
was called for in the budget that was adopted in the U.S. Senate.
I yield the floor.
Mr. DOMENICI addressed the Chair.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Mr. President, might I ask the Senator from Texas a
question, just from the standpoint of those who have other amendments
and those who are calling and asking me as to where we are. I think we
have had a good debate. I compliment him on the quality of his debate,
and I wonder if there is any thought that he might have as to when we
might vote. It does not matter to me. Last night, I indicated a genuine
interest in voting quickly. Frankly, if we do not want to get a bill,
that is up to the Senator from Texas.
Mr. GRAMM. Let me say to the Senator, it is my understanding that
Senator Kennedy and Senator Lautenberg are on their way here to speak
on behalf of the bill.
Let me call those who have suggested to me that they might be
interested, and it may well be at that point that we could reach a
determination as to whether I want to make a motion or whether I just
simply want to have a vote.
Mr. President, I suggest the absence of a quorum.
Mr. DOMENICI. Can we withhold on that?
The PRESIDING OFFICER. Will the Senator from Texas withhold?
Mr. GRAMM. I will be happy to withhold.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. DOMENICI. Mr. President, I just want to read one more time and
make one more observation, there is no doubt that the principal concern
about
[[Page S 14608]]
the Legal Services Corporation has been class action lawsuits,
lobbying, soliciting work, and a number of issues, and I will go
through a list in a minute.
But I want to remind everyone again, we have never been able to
literally write all of these prohibitions into the law.
Again, I want everyone to know the reason for the prohibitions is
because legal services, when it was founded by Richard Nixon in
association with the American Bar, intended this to represent
individual poor people in individual cases, not to represent a class of
poor people suing a welfare agency or suing a legislature or suing the
farmers as a class.
We have never been able to put those kinds of prohibitions into law
because we never had agreement between the House and the Senate. So I
want everyone to know that, with few exceptions, the House has already
agreed to the same kind of prohibitions that are in this bill. The
House does not block grant this in their appropriations bill. They have
funded it.
So with reference to the House, the only difference is that we seek
to add some money so that this program gets cut 15 percent, which we
think, in comparison to other things, is clearly fair, and we put the
same prohibitions and some additional ones in.
So if this bill ever gets signed into law, and unless it does, there
will be no funding unless we have an ongoing continuing resolution for
the whole year, and it will be close to last year's level--10, 15
percent like we have. If a bill is going to come out and get signed, it
is going to have these prohibitions and, once and for all, that is
going to be the law.
Having said that, just a budget remark because my friend from Texas
said it right. He said, technically, that this bill calls for more
money than the budget resolution. I would not want anybody to think
that is a rare exception around here either. Frankly, what is really
binding is the total amount of the dollars. If we were able to write in
the budget resolution and designate the funding level for every
program, then there would be no need for annual appropriations. The
appropriators could go out of existence. Some might say that is a good
idea. I know the occupant of the chair is wondering, and I also believe
we ought to appropriate every 2 years instead of every 1. I do not know
why we do not change that. It has been proven very worthwhile in many
States. But we still have a law that says the appropriators decide with
finality. So there is no violation of the budget. If that were the
case, every bill appropriations bill that came through here would be in
violation because they all have items with different funding levels
than the assumption in the budget resolution--maybe 20, 30 times in
each bill. That is the prerogative of the Appropriations Committee, and
the Senate as an institution. Only if we breach the cap, go over the
total amount allowed, is it subject to the budget resolution, which is
seeking not specificity but overall control.
So, indeed, if one were to talk about legal services being somewhat
higher than the assumption, one could also say that almost all of the
Justice Department and the anticrime measures in the bill are higher
than the budget resolution. In that context, technically, they are
doing much the same thing, letting the appropriators seek what they
think is the appropriate level. So I think everybody should know on the
up side and the down side of funding, that goes on in every
appropriations bill. It does not violate the budget, so long as you do
not breach the overall budget target.
I yield the floor.
Mr. SPECTER addressed the Chair.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I support the amendment offered by my
distinguished colleague from New Mexico. I do so after having had
considerable experience as a lawyer. I think I understand the need for
representation of the poor in America on many of the complex legal
issues and problems which they face.
My first exposure to representation of the poor came as a volunteer
defender when I was a year and a half out of law school. That was
before the Gideon versus Wainwright case, which established a
constitutional right for defendants to have lawyers in criminal
proceedings. It is unthinkable in 1995 that there was ever a time when
someone would be ``haled into court,'' as Justice Black put it, and not
have an attorney represent him when his liberty was at stake. But there
was a day, and I was a year and a half out of law school and at a big
Philadelphia law firm. There was an enormous backlog of criminal cases,
and people were held at detention at the Montgomery County prison. I
went over for a month to represent indigent criminals in the courts of
Philadelphia.
It was a real eye-opener for me in many, many ways. The first way was
to learn that these people had nobody to represent them in a courtroom.
They were faced with two counts of rape, four burglaries, and I was a
year and a half out of law school, and I was better than nothing, but
barely, under those circumstances; and I saw at that time how people
had to volunteer, how the community had to come forward to provide
legal assistance to people who needed to have their rights represented
in a courtroom. It also did something very profound for me, and that
was it opened my eyes to public service and to the criminal courts. I
had been there for only a month. Notwithstanding that, I was in a very
prominent law firm. It was wall-to-wall life. I soon became an
assistant district attorney because I wanted to learn to be a trial
lawyer, and I wanted to participate in the public process. And it has
all been downhill since then, to district attorney and U.S. Senator.
But that was a real experience for me to see the importance of legal
representation.
Now we have legal services. The first year I was here in 1981, there
was an effort to reduce the funding to $100,000, which would have been
grossly inadequate. Senators Rudman, Domenici, and a few of us stood
up, and my recollection is that we had $261,000 for community legal
services in that year. Last year, we had a battle on the floor of the
U.S. Senate when there was an effort to limit community legal services
from representing people in welfare reform cases, because the community
legal services had gotten into a New Jersey case over welfare reform.
It seemed to me unthinkable to limit community legal services from
participating in representing poor people in challenging Federal or
State laws. Now we have just gone through welfare reform in this body,
dealing with matters which are tremendously complicated and have raised
very many important legal issues. And you have to have representation
for the poor in America. It is something we ought to be doing. The
amount of money involved, in comparison to the scope of the problem, is
minimal.
Senator Domenici is the leading expert on the budget. I cite him all
the time, and I have great confidence in our glidepath for a balanced
budget, because Senator Domenici is a man I have seen operate for over
6 years as chairman of the Budget Committee, from 1981 through 1986 and
again this year. These dollars for legal services are very, very well
spent.
I, frankly, have some concerns about the limitations which are
present in this bill. I talked to Senator Domenici about them,
especially the limitations on the use of non-Federal funds, and I know
that this is a compromise to try to get the extra funding, to have some
limitations. I have grave reservations about these limitations. But I
do know this--even with the money which is left, this is not enough to
handle individual cases where individuals need representation on
complex legal matters.
I have tried to hold my comments to a few moments in the hope that we
may act on this amendment. I do not think any souls are going to be
saved or any votes are going to be changed on this amendment on my
speech, the speeches before mine, or the speeches going back to about
11 o'clock this morning. We have a lot of other amendments which I hope
we can take up. I hope we will move to conclude this amendment. I hope
my colleagues will support this amendment because it is important for
America.
I yield the floor.
Mr. DOMENICI. Mr. President, I see my friend from Hawaii on the
floor. Did he want to say something?
Mr. INOUYE. No.
Mr. DOMENICI. Since there is no business coming before the Senate, I
[[Page S 14609]]
ask for 6, 7, minutes as in morning business at this point.
The PRESIDING OFFICER. Without objection, it is so ordered.
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