[Congressional Record Volume 142, Number 37 (Monday, March 18, 1996)]
[Senate]
[Pages S2240-S2243]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  BALANCED BUDGET DOWNPAYMENT ACT, II

  The Senate continued with the consideration of the bill.


                           Amendment No. 3551

  Mr. REID. Mr. President, I would like to discuss, again, the ruling 
of the Chair. The Parliamentarian has ruled that an amendment is not 
relevant. A unanimous-consent request was entered allowing the calendar 
item to go forward, as set forth on page 3 of Monday's Calendar of 
Business.
  A number of relevant amendments were allowed to be offered under the 
confines of the unanimous-consent request. Every Senator here agreed to 
this. Every Senator said only relevant amendments could be offered.
  It seems rather unusual now that in spite of a unanimous-consent 
agreement--that does not mean 99 percent of the Senators, that does not 
mean 99 Senators, that means every Senator agreed to this unanimous-
consent request--it seems rather unusual now we have some Senators who 
say that the referee, the Parliamentarian, ruled that this amendment is 
not relevant, ``But I'm going to do it my way anyway. I really didn't 
mean it when I agreed to that unanimous-consent request.''
  For this body to rule otherwise--that is, to overrule the 
Parliamentarian--would be putting not only the Senate but certainly the 
Chair in a very, very awkward position, because it is clear that this 
amendment is not in order.
  Mr. President, if the Parliamentarian is overruled, it would be like 
playing a

[[Page S2241]]

basketball game and you have Dennis Rodman as one of the players and 
you do not have a referee. Or you decide before any game, ``Let's just 
not have any referees. Let's just have a free-for-all.'' That is, in 
effect, what this will wind up doing. That is why we will never ever 
have another unanimous-consent agreement this year.
  I think the Senators, especially the majority, really have to look at 
what precedent this sets. Every Senator has agreed that amendments can 
only be offered that are relevant. The referee, the Parliamentarian, 
through the Chair, has said an amendment is not relevant. To think now 
that we could come back as a body and overrule the referee does not 
seem very fair to me, or I think to most everyone it does not seem 
fair. I think it is going to be real hard to get work done around here.
  Mr. President, I do not know, but I would think that the chairman of 
the Appropriations Committee, the distinguished senior Senator from 
Oregon--although I do not know--I have to think he would vote to 
sustain the Parliamentarian. For the chairman to vote otherwise would 
put this bill certainly at jeopardy and the precedents of this body.
  I almost guarantee, although I have not talked to him, that the 
ranking member of the Appropriations Committee, the senior Senator from 
West Virginia, would vote to sustain the Chair. I think those of us who 
have not been in this body very long should follow these two great 
Senators.
  There have been a number of statements made in the debate today, but 
let me speak now as a Senator from Nevada. Nevada wants no part of this 
split. We share a border that is 1,000 miles with the State of 
California--a 1,000-mile border. We do not want to stop having legal 
intercourse with the State of California. That would be wrong.
  Mr. President, if, in fact, there is a commission like the Senator 
from California has talked about establishing that would come back and 
give reasons for why we should split off from the State of California 
in this circuit, I would be very strongly inclined to go along with 
that, but right now we have nothing.

  As we have established clearly in the debate today, more circuits 
does not mean we are going to handle more cases. Quite frankly, it 
means just the opposite.
  I think, if we have a fair study of the circuits, I do not know what 
can happen. We may want to combine circuits. We might wind up, instead 
of having 12 circuits, having 14 circuits, or instead of having 12 
circuits, we might wind up having 8 circuits. I do not know. But let us 
have a good study by people appointed by the Chief Justice of the U.S. 
Supreme Court, by the President, by the legislative body, having 
adequate staff so that they can work on this matter.
  The majority party, the Chair included, I have heard on a number of 
occasions make statements about how important it is to balance this 
budget. The Presiding Officer today may feel more strongly about other 
things, but as far as I am concerned, having worked and served with the 
Presiding Officer, I do not know of a thing the Chair feels more 
strongly about than balancing the budget, because I heard remarks made 
on a continuing, repetitive basis from this floor about how important 
it is to get this Nation's financial house in order.
  Using that as a foundation for what is important in this body, how 
can we justify without a hearing, without a commission made up of 
academics or judges or the private sector, how can we justify spending 
up to $60 million creating this new circuit with added expenses of 
millions of dollars every year? You cannot justify that. This must be 
laughable to the American public.
  If the jury were the American public and we presented this to them, 
they would return a verdict very quickly saying, ``Well, I'm not sure 
there should be a split, but let's at least study the issue before that 
decision is made.''
  To spend $60 million after we have already spent $100 million just 
renovating a building so that we can take care of this large ninth 
circuit does not make a lot of sense. So instead of spending $100 
million, we are going to spend $160 million, plus the yearly increase 
in cost. It does not make sense to the American public. It certainly 
does not make sense to this Senator.
  My staff handed me something earlier today that says: ``Further 
Information Relating to the Issue of Splitting the Ninth Circuit.'' I 
have not had a chance to read all this, but neither has anyone else in 
this body. We have had no hearings. There has been no commission set up 
to determine if we are doing the right thing, but there has been a lot 
said as to why we are doing the wrong thing: editorials, academics, 
judges. Just from this piece of paper that I have here, there are some 
things that I think we should be aware of in this body.

  The American Bar Association Appellate Practice Committee, 
Subcommittee To Study the Circuit Size. I read an excerpt from that 
today saying that they thought it was a bad idea.
  Thomas Baker wrote in the Arizona, I assume this is the Law Review 22 
Ariz. S.L.J. 917 (1990) ``On Redrawing Circuit Boundaries--Why the 
Proposal To Divide the United States Court of Appeals for the Ninth 
Circuit Is Not Such a Good Idea.'' It is something of which we should 
be aware.
  Carl Tobias, Emory Law School Law Review, 1995. His is entitled ``The 
Impoverished Idea of Circuit Splitting.''
  The Honorable Clifford J. Wallace, who for many years was the chief 
judge of the ninth circuit and now is retired, wrote an article saying: 
``The Ninth Circuit Should Not Be Split.''
  There are a number of other references in this piece of paper 
indicating why the circuit should not be split.
  But let us determine that from a basis rather than the seat of our 
pants in the Senate. We should do it with congressional hearings, but 
if you do not want to go the congressional hearing route, I am willing 
to go along with the suggestion of the Senator from California that we 
have a commission, because splitting the ninth circuit is a piecemeal 
approach, it is not the answer to a nationwide problem. We need to look 
at all the circuits. The 1996 legislation should not be based on a 
report that is 23 years old.
  I would not even feel as upset if this amendment had followed the 
Hruska report that is 23 years old. They do not even do that. The 
Hruska report said you should split the State of California in two. 
They did not do that. They lumped California all together. As the 
Senator from California pointed out, there has never been anything done 
like that before.
  Creating a new circuit is a costly proposition. The bench and bar 
oppose the ninth circuit split. Regionalism and ideology should play no 
part in the boundaries of circuits. The division of the fifth circuit 
provides no precedent for dividing the ninth circuit. The Hruska report 
shows that a large circuit can operate effectively, as the ninth 
circuit has done. The ninth circuit is doing a very good job.
  But even on the merits, Mr. President, even if we are totally wrong 
and my friend from the State of Montana is totally right--that we are 
all wrong, assuming that for the purposes of this argument--we must 
sustain the point of order. The Parliamentarian has ruled this 
amendment is not germane--I am sorry, not relevant. So we should uphold 
the Chair. It is the only way we are going to have order in this body. 
To have this Senate overrule the ruling of the Chair would set a 
precedent that we would learn to regret. We would come to regret it.
  So I hope that we will follow the recommendation, as I am confident 
will be of the chairman of the Appropriations Committee and the ranking 
member of the Appropriations Committee, and vote to uphold the ruling 
of the Chair and have this matter declared, once and for all, not 
relevant.
  Mr. BRYAN. Mr. President, today I rise in strong opposition to the 
second-degree amendment introduced by the junior Senator from Montana 
to his original amendment to split the Ninth Circuit Court of Appeals, 
while also calling for a restructuring study of all the U.S. circuit 
courts of appeal.
  I commend the Chair's ruling on the two points of order brought by 
both Senator Feinstein and Senator Reid earlier today to hold the Burns 
amendment irrelevant to this omnibus appropriations bill.
  This amendment is the fourth attempt to break up the ninth circuit 
since 1983. These same drums have been

[[Page S2242]]

beaten before--the circuit is too big--the cases are not decided in a 
timely manner.
  But this is, I fear, only a smokescreen for the real reason splitting 
the ninth circuit is proposed from time to time.
  Many simply do not like the decisions rendered by the circuit.
  Surely not all of the decisions in the ninth circuit, or for that 
matter, in any circuit come down the way all of us would like. I have 
even cosponsored legislation to reverse some ninth circuit decisions.
  But I do not believe differences over the decisions rendered by the 
ninth circuit are adequate grounds to split the circuit.
  What kind of precedent would Congress then be setting? Would a 
circuit court of appeals face possible reconfiguration, whenever 
Congress does not like the decisions being rendered? Does this Congress 
really want to support what is essentially judicial gerrymandering? I 
think not.
  The ninth circuit serves nine western States, and has been one 
circuit for over 100 years. Whenever the issue of splitting the circuit 
is put to a vote of the judges and lawyers in the circuit, the vote is 
overwhelming to retain the circuit as it is currently.
  Who better than those judges whose decisions are appealed to, and 
those lawyers who represent clients whose cases are heard by the ninth 
circuit to determine whether the circuit is working or not? It has been 
my experience that judges and lawyers have never been shy about stating 
an opinion when they think something needs to be changed.
  The last study of the Federal circuit courts of appeal was the 1973 
Hruska Commission. A fellow Nevadan, the Honorable Charles Wiggins, a 
ninth circuit court judge, served as a member of that Commission.
  Judge Wiggins, a former Republican Congressman, originally supported 
a split of the ninth circuit. In his recent letter to Senator 
Feinstein, however, he stated:

       My understanding of the role of the circuit courts in our 
     system of federal justice has changed over the years from 
     that which I held when the Hruska Commission issued its final 
     report in 1973. At that time, I endorsed the recommendations 
     of the Commission calling for a division of the 5th and 9th 
     Circuits. I have grown wiser in the succeeding 22 years.''

  We should heed Judge Wiggins experience--act wisely and not split the 
ninth circuit.
  The last time a circuit court of appeals was split was 1980, when the 
fifth circuit was divided. And it should be noted that the judges of 
the fifth circuit unanimously requested the split --a situation we do 
not have with the ninth circuit.
  Judge Wiggins recently wrote me,

       Circuit division is not the answer. It has not proved 
     effective in reducing delays. The former 5th Circuit ranked 
     sixth in case processing times just prior to its division 
     into the 5th and 11th Circuits. Since the division, the new 
     5th Circuit is still ranked sixth or seventh, while the new 
     11th circuit now ranks 12th, the slowest of all the circuits. 
     The 9th circuit Court of Appeals judges are the fastest in 
     the nation in disposing of cases once the panel receives the 
     case.

  The ninth circuit has taken administrative steps to manage its 
caseload through innovative ways that other circuits use as models. The 
ninth circuit disposes of cases in 1.9 months from oral argument to 
rendering a decision.
  This is 2 weeks less than the national average. This currently makes 
the ninth circuit the second most efficient circuit. It is obvious the 
circuit has recognized court management areas that needed improving, 
and has successfully addressed them.
  I find it particularly ironic in this current political atmosphere 
with extremely tight Federal budget restraints that a proposal is being 
made to create a new circuit court. As my colleagues before me have 
discussed, it is estimated to cost $60 million to construct another 
Federal court house, and set up another circuit court. An additional $2 
to $3 million is estimated to be needed to provide for the transition 
period. And thereafter, we would face the continuing costs of operating 
an additional circuit court. This makes no sense.
  I reiterate my opposition to the proposal to split the ninth circuit. 
This circuit has worked well for the nine western States it serves, and 
will continue to do so into the future.
  For those who believe the ninth circuit must be split, let the 
proposed commission to review all the U.S. circuit courts go forward. 
When the information necessary to determine whether any circuits need 
their geographical jurisdiction changed is available, we can then 
debate this issue intelligently.
  But let us not split the ninth circuit prematurely. To implement the 
ninth circuit split at the same time as a commission is gathering the 
information to make that decision simply would make no sense.
  This issue is simply too important to debate without all necessary 
information. I would hope my colleagues would join me tomorrow in 
voting to uphold the Chair's rulings on the irrelevancy of the Burns 
amendment.
  Mr. SANTORUM addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.


               Amendments Nos. 3484, 3485, 3486, and 3487

  Mr. SANTORUM. Mr. President, I rise to discuss an issue that I spoke 
about at great length last week. I want to speak very briefly about the 
amendments that I have put forward that are pending concerning the 
disaster relief portion of this bill and the emergency spending 
declaration that was attached to those spending provisions.
  I really want to focus on just sort of the broad outline of what I am 
trying to accomplish in these amendments. There are really three 
subjects that the amendments deal with. The first subject really is the 
immediate subject, which is, are we going to offset the money that we 
spent here in the Senate bill with other spending reductions in the 
bill so we do not add to the deficit this year? That is the first 
issue.
  The second issue is, do we get a bill out of conference that does not 
add to the deficit?
  Third, what do we do long term to deal with the issue of disaster 
relief?
  Let me address all three of those, if I can, and discuss the 
amendments that I have to take those subjects on. First, the Senate 
bill. We had an amendment by the Senator from Texas and me. Senator 
Gramm and I put forward an amendment to offset the spending with an 
across-the-board cut in all the nondefense discretionary appropriations 
accounts. We had 45 votes on that, which I consider is a pretty good 
showing, but not good enough.
  We are continuing to look. I have three amendments filed, and, in 
fact, am working on a fourth with the Appropriations Committee and the 
leadership, to try to come up with a way where we can pass a bill here 
in the U.S. Senate that does not add to the deficit this year.
  So I am hopeful that in the end, whether we do it with the amendments 
that I have pending or whether we can come up with a modification to 
one of those amendments to accomplish a deficit-neutral bill in this 
bill that we are working on, I am confident that we can make that 
happen. That is No. 1.
  No. 2 is the issue in conference. In the Senate, as I said before, I 
am hopeful we can get a bill that comes out of here that does not add 
to the deficit. The House has already put forward a bill that does 
not--that does not--increase the deficit. So I have a sense-of-the-
Senate resolution which would instruct the conferees to hold firm and 
come out with a bill that is within the budget caps that we set in the 
budget resolution last year, so we do not add additional red ink in 
this round of trying to finish the appropriations process for the rest 
of this year. So we have something that clearly states the Senate is on 
record that we should pay for the disaster relief funds in this bill.

  Third--and this gets to, I think, a very important issue, and I am 
hopeful we can get very broad support for this--is another sense-of-
the-Senate that the Congress and the relevant committees examine how we 
deal with disaster relief. How we deal with disaster relief now is--
actually, we do not. We appropriate a few hundred million dollars, very 
little money relative to the amount of disasters that we have in this 
country, that are eligible for Federal relief. We appropriate a few 
hundred million dollars a year to FEMA and then, as the disasters come 
along, as they certainly do--whether they are earthquakes in California 
or whether they are fires in Texas or whether they are floods in 
Pennsylvania or hurricanes in South Carolina, we

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have them--we have a Federal role to play in helping the people who 
have been hurt, whether it is physically or whether it is their 
property or with the public roads or bridges, infrastructure.
  There is a Federal role to play in assisting an area, a community, 
that has been hit. So the question is, how do we pay for it? How do we 
budget for it? And what we do right now is we do not budget for it, and 
we pay for it by putting it on the next generation's credit card, so to 
speak. The difference with the next generation's credit card is that 
unlike most credit cards we have to pay after 30 days--we get charged 
interest, but eventually we pay it back--this credit card, we never pay 
it back, we just keep paying interest on it forever, and the future 
generations pay forever and ever and ever.
  So what we ask is, look at a long-term solution. How can we, within 
the budget, allocate resources as disasters come up, to make sure we 
can be fiscally responsible, and at the same time provide the needed 
assistance for disasters as they occur across this country? That is the 
last leg or last subject area that I am trying to address with these 
amendments that I have on the floor.
  I am hopeful we can get support for all three subjects, fixing the 
Senate bill, getting a bill out of conference and to the President's 
desk that does not add to the deficit, and No. 3, coming up with a 
suggestion to the Congress that the relevant committees do some good 
work and determine how we can begin to pay for disasters within the 
budget.
  Senator Gramm and I mentioned last week when we were debating his 
amendment that over the past 7 years, we have added $100 billion to the 
deficit--$100 billion to the deficit--in disaster declarations. They 
have been things from very serious, as I said before--floods, 
earthquakes, hurricanes, tornadoes, et cetera--to things such as 
declaring an emergency because we had a 6-percent rate of unemployment 
and we wanted to pay extended unemployment compensation benefits.

  There really is a very loose standard of what is an emergency. In 
fact, there is no standard of what an emergency is. It is whatever the 
President declares, whatever the Congress declares. I think we need to 
do a little better than that. I think we have to have some guidelines 
and we have to have some procedures by which we are going to declare 
emergencies and which would cause us to increase the deficit. That is 
an appropriate standard.
  That is something, frankly, we should have done when we put together 
the emergency provisions in the 1990 Budget Act in the first place, but 
we did not. Those who argued for some sort of parameters to define an 
emergency hearkened back then that we were going to see everything that 
was politically popular for the moment declared an emergency and thrown 
on the deficit. I think their fears have been brought to fruition. We 
have, as I said before, $100 billion of such spending.
  I want to make it very clear that we have an obligation here to 
provide emergency disaster relief for communities in States that are 
hit. I am for that. I want to make sure that we can do that and we do 
it properly, but I think we have to make sure we do it within the 
confines of trying to get to a much more responsible fiscal policy here 
in Washington, to a balanced budget, to a better America and, again, 
avoiding this knee-jerk reaction we have had in this town for a long, 
long time, that if we have a problem, and we do not want to take money 
from some area of the budget that may have your name attached to a 
program, or whatever the case may be, and put it to where the emergency 
is, that instead we just add it to the deficit.
  I think that is irresponsible behavior, and it is certainly not in 
keeping with the changes that have occurred since the 1994 election. We 
focused so much of our time and energy on trying to balance this 
budget, but when an emergency comes along that we frankly should have 
budgeted for but did not budget for, we are the first to run, even now, 
and talk about, well, we have just got to put it on the deficit. I 
think it is talking out of both sides of your mouth and is not what we 
should be doing here, or what the public expects us to be doing.

  We are talking $1.2 billion out of $1.6 trillion that we will spend 
this year. Somewhere around we can find some money in a lot of areas of 
Government to put where it should go, which is to pay for this 
emergency. The three things I am hoping to accomplish tomorrow, whether 
we can do it, and I hope we can, by agreement or consent on both sides 
of the aisle, is something frankly that both Democrats and Republicans 
should be for: Fiscal responsibility, a long-term solution, and more of 
a structure to funding emergencies and standing up for the Senate not 
to be fiscally irresponsible and adding to the deficit in this 
appropriations process.
  I yield the floor.


                           Amendment No. 3551

  Mrs. FEINSTEIN. Mr. President, not to belabor the point, but earlier 
I made the point about the duplicative costs of the ninth circuit split 
proposal, the inordinate costs of the proposal, the unnecessary costs 
of the proposal, the unfair division that the Burns bill presents.
  I would like to just clarify what I said. What I said was that 
California, Hawaii, Guam, and Northern Marianas have currently 62 
percent of the caseload; Alaska, Arizona, Nevada, Washington, Oregon, 
Idaho, and Montana have 38 percent. In the Burns proposal, the group of 
States with 62 percent of the cases get 15 judges, and the States with 
only 38 percent of the caseload get 13 judges. The States with 62 
percent of the cases end up getting proportionately fewer judges 
relative to caseload. According to ninth circuit statistics for 1995, 
the proposed new twelfth circuit would have only 765 filings per three-
judge panel, whereas the ninth circuit would have 1,065 filings per 
three-judge panel. How this huge caseload is going to be handled with a 
disproportionately low number of judges should cause some concern 
because this will still remain a very large circuit. It will be unable 
to function due to a heavy backlog of cases.
  I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Burns). Without objection, it is so 
ordered.

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