[Congressional Record Volume 141, Number 159 (Friday, October 13, 1995)]
[House]
[Page H10051]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          THE ISTOOK PROPOSAL

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Colorado [Mr. Skaggs] is recognized for 5 minutes.
  Mr. SKAGGS. Mr. Speaker, I want to talk this morning about one of the 
many, many provisions, hidden, dirty little secrets to use the phrase 
of the gentleman from Indiana [Mr. McIntosh], the gentleman from 
Oklahoma [Mr. Istook], and the gentleman from Maryland [Mr. Ehrlich], 
who are proposing this legislation, buried in their proposal designed 
to shut down a large part of a cherished American tradition of open and 
free political speech and political debate. That part of their proposal 
has to do with compliance and enforcement.
  Mr. Speaker, one of the revered principles of American law is the 
presumption of innocence. One of the bizarre aspects of my colleagues' 
proposal is that it would create a presumption of guilt. How would it 
do that? I will tell my colleagues how. In order to be able to be in 
compliance with these draconian provisions restricting the ability of 
Americans and American organizations to engage in the political life of 
this country, everyone covered by this proposal would be put to the 
burden of proving compliance, that is, proving their innocence.
  Most times when we might be accused or challenged for an alleged 
violation of law, civil or criminal, it is the burden on those making 
that allegation, bringing the charges, to prove a violation, but not 
here. Here the tables are turned and anyone that is challenged on their 
compliance with the Istook proposal would have to prove compliance, 
prove their innocence.
  Mr. Speaker, that is bad enough, but I want to tell Members something 
more, another dirty little secret hidden in this proposal. That is not 
only would each of us have to prove our innocence, our compliance, that 
we are not speaking too much in this country, that we are not too fully 
engaged in the political life of America, but we would have to sustain 
a burden of proving that by what the lawyers call clear and convincing 
evidence.
  Most times in civil cases, if you have the burden of proof, all that 
you have to do is show that your side is right by what is called a 
preponderance of evidence. You might think of that as 51 percent. But 
not here. Here you would have to demonstrate your compliance by clear 
and convincing evidence and, again to give it a kind of quantitative 
feel, most lawyers would say that is 70, 75, 80 percent.
  So that is the kind of really bizarre provision buried in this 
proposal. Again, that would be bad enough if we were dealing with some 
normal kinds of enforcement issue, have we violated an environmental 
law or done something else that has to do with the normal course of 
business in this country. But this is a regulation designed, intended, 
constructed to curtail political expression.
  I know, Mr. Speaker, you are saying this cannot be true. How can 
anyone in a freedom loving country like ours write a law intended to 
constrain, to regulate political expression? But that is what this 
does.
  It would limit what we can do to a percentage of our income, almost 
all Americans are likely to be covered because of the way this thing is 
written, and, again, we would be put to the task of proving that we 
have not overdone it, that we have not been hyperactive politically, 
and if we cannot prove our compliance, not just by 51 percent but by 
this clear and convincing evidence standard, what happens? Well, we 
could be subject to treble damages, to have to pay three times the 
value of what we might have gotten in value from the Federal Government 
in any number of different ways of having exceeded our political 
expression limits for the year.
  Mr. Speaker, can my colleagues imagine anything more unfair, more un-
American that this kind of intrusion on the hallowed, hallowed 
principles of freedom of expression, freedom of association guaranteed 
to each of us by the Constitution of the United States?

                          ____________________