[Congressional Record Volume 142, Number 38 (Tuesday, March 19, 1996)]
[Senate]
[Pages S2285-S2300]
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. 3553 to Amendment No. 3466
Mr. HATFIELD. Mr. President, I send to the desk the managers package,
as I have outlined it and explained it.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Oregon [Mr. Hatfield], for himself and Mr.
Byrd, proposes an amendment numbered 3553 to Amendment No.
3466.
Mr. HATFIELD. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The text of the amendment is printed in today's Record under
``Amendments Submitted.'')
Mr. HATFIELD. Mr. President, again, let me call to the Senate's
attention--as I have done now in the Republican caucus at lunch, and
others in the Democratic Caucus, I think, had similar material--that we
have put together, with the clearance of Senator Byrd on the Democratic
side of the aisle, a managers package to accommodate those Members who
were not present when a unanimous-consent agreement was entered into at
7:45 last Thursday night. The deadline was 8:05. So there were those
who were negotiating at that time with other colleagues.
I have recited those amendments and we have indicated very clearly
that people's rights to either modify, to change, second degree, or
strike were certainly open.
We have waited now close to half an hour for anyone to appear to take
advantage of that opportunity.
I ask unanimous consent that the statements that the following
statements and colloquies--I am just boxing those together--be placed
in the Record. As I recited before, there is a statement by Senator
Hutchison; a statement by Senator DeWine; a colloquy by Senators
Hatfield and Specter; a colloquy by Senators Stevens and Campbell; a
colloquy by Senators Specter and Pell; a colloquy by Senators Simon and
Specter; a colloquy by Senators Hollings, McCain, and Specter; a
colloquy by Senators McConnell and Leahy; a colloquy by Harkin,
Johnston, and Specter; a colloquy by Senators Simon and Specter; a
colloquy by Senators McCain and Burns, which I ask be placed in the
Record in the appropriate place following the Burns amendment that we
will have adopted in this package.
The PRESIDING OFFICER. Without objection, it is so ordered.
SEMATECH
Mrs. HUTCHISON. Mr. President, the purpose of my amendment is to
restore the funding level for Sematech to the full amount authorized in
the 1996 Defense authorization bill.
Mr. President, semiconductor manufacturing leadership is as critical
to America's national defense and economic security today as it was in
1987 when Sematech was formed. Sematech has proven to be a model for
government-industry cooperation. Unlike so many other programs,
Sematech has produced all that it has promised it would and then took
the unprecedented step of deciding to decline all future direct Federal
funding.
It is indeed ironic that as this program come to an end, our
competitors in Japan recently announced they are establishing a
consortium modeled after Sematech. They have publicly admitted that the
success of Sematech has resulted in America reclaiming world market
share leadership in both chips and the equipment used to manufacture
them and the Japanese now feel the need for their own Sematech.
We must never surrender our leadership or our resolve to be the
technology leader of the world. In this the final year of funding, I
believe we have an obligation to provide adequate funding to ensure
Sematech is able to complete its mission and finish research
[[Page S2286]]
project already underway that the industry and the Department of
Defense are counting on.
Criminal Justice Identification Systems
Mr. DeWINE. Mr. President, my amendment provides $11.8 million for
local governments for the development of criminal justice
identification systems and their linking to FBI databases.
Specifically, this amendment allows the FBI to grant funds to local
communities, in consultation with the States, to upgrade their criminal
identification systems. Through this funding, law enforcement agencies
could develop their criminal histories, and DNA, fingerprint, and
ballistics identification systems, and hook them up to the FBI national
databases. It would also allow local law enforcement to contribute
identification materials to the database in Washington. This proposal
is strongly supported by the FBI and State and local law enforcement
agencies and governments.
While the FBI's fingerprint and criminal histories systems are not
yet complete, State and local governments need these funds now to take
necessary steps to prepare their criminal records for connection to the
national database.
This language was also passed by the Senate in June, 1995, as part of
S. 735, the Senate's antiterrorism measure, and in October, 1995, as
part of H.R. 2076, the Commerce, Justice, State and the Judiciary
Appropriations.
I want to thank Senator McConnell for his tremendous efforts in
securing passage of this amendment. I also want to express my
appreciation to Senator Hatfield and Senator Gregg for accepting this
amendment.
Regional Educational Laboratories
Mr. HATFIELD. I am pleased to see that the Senate provided an
increase of funding for education research in fiscal year 1996. There
is not a more central and basic role for the Federal Government than to
be funding research and development activities. Within that increase,
have you provided for the regional educational laboratories?
Mr. SPECTER. We have provided $51 million for the regional
educational laboratories in the education research item. We have 10
laboratories across the Nation. This funding will provide them each
with a $1 million increase.
Mr. HATFIELD. Have you designated the purpose of these funds for the
laboratories?
Mr. SPECTER. The laboratories, by law, are to have their research
priorities and program of work determined totally by their regional
educational governing boards. These boards are responsible to meet the
education needs of their region. We are not giving a specific charge.
We expect the laboratory boards to determine what is needed.
Mr. HATFIELD. Does this mean that the Department of Education can
direct these funds in any way?
Mr. SPECTER. Senator Hatfield, the answer is that these funds are
intended for regional priorities only and only when the priority is
determined by a laboratory's board, and is a priority within the
general problem areas established in the law. None of these funds are
to be used for any other purpose. This is what Congress intended when
we reauthorized these laboratories. A key role of the Office of
Educational Research and Improvement is to guarantee that this
expectation is met, not only with the additional funds we provide this
year, but for all the funds for the regional educational laboratories.
National Test Facility
Mr. CAMPBELL. Would the Senator from Alaska yield a few moments at
this time to enter into a brief colloquy?
Mr. STEVENS. I would be happy to yield to the distinguished Senator
from Colorado.
Mr. CAMPBELL. I thank the Senator. As the Senator may recall, the
Senate report on the National Defense Authorization Act for Fiscal Year
1996 contained language concerning the $30,000,000 mandated cut from
the Ballistic Missile Defense Organization [BMDO] program management
and support program element. It is also my understanding that based on
the additional management requirement, the Defense Appropriations
Subcommittee directed that none of the program management and support
account reduction be applied to the programs, activities, or functions
of the Army Space and Strategic Defense Command. As a result of this
report language, the National Test Facility [NTF] will take
approximately a $4 million reduction in funding. As a result, there
will be insufficient funds to do the much needed upgrade of the
communications of the national test bed network. Also, a computer
essential to the NTF's mission may not be able to support its
operational requirements. I am advised that this facility is essential
to the BMDO's mission, and therefore, cannot withstand any further
reduction in funding.
I would like to ask the Honorable Chairman, Senator Stevens, if he
would work to include the National Test Facility as another program not
be affected by the BMDO program management and support account
reduction?
Mr. STEVENS. The Senator from Colorado raises important issues
regarding the NTF and I can assure him I will work in the conference
committee to address this issue. I also take this opportunity to thank
the Senator from Colorado for his diligent efforts as the newest member
of the Appropriations Committee.
international education
Mr. SPECTER. Senator Pell, we are pleased to be able to provide
support in the amount of $5 million in fiscal year 1996 for the
International Education Program in title VI of the Goals 2000: Educate
America Act. Since this sum is one-half of the originally authorized
amount for this program we would appreciate any guidance that you, as
the author of this legislation and the ranking minority member of both
the Senate Foreign Relations Committee and the Education Subcommittee,
might be able to provide on the use of these funds.
Mr. PELL. Thank you. First, I want to express to you my deep
appreciation for the efforts you have made on behalf of this program,
which provides critically important help in both civics and economic
education to the emerging democracies in Eastern Europe and the former
Soviet Union. Also I want to personally thank your staff member,
Bettilou Taylor, for the amount of time and work she put forth in this
area.
I very much appreciate the opportunity to provide guidance on how the
funds for this program should be used. In a colloquy with then-Chairman
Harkin in 1994, we agreed that the Department, given the limited funds,
should award one grant in each area--one in civic education and one in
economics education. I am pleased that the Department of Education
complied with this request, and I believe it is a practice that should
be continued.
Further, given the delay in reaching an agreement on a fiscal 1996
appropriations bill, I believe it advisable that the Department award
continuation grants to the two organizations that received awards last
year. These organizations, the National Council on Economic Education
in New York and the Center for Civic Education in California, have had
their grants for less than a year and should be given ample opportunity
to implement fully the programs they have initiated over the past
several months.
Mr. SPECTER. I thank the Senator for his kind words. Also, I believe
he has offered good, solid advice, and would concur with him that the
Department should award continuation grants for the two organizations
in question.
funding for library literacy
Mr. SIMON. I am concerned that funds for library literacy have been
eliminated in the committee report. This is a particularly important
program that supports literacy projects in over 250 libraries across
the country. I did note and do appreciate, however, that the committee
increased funding for library services.
Mr. SPECTER. My colleague is correct. Libraries are important in
promoting literacy and I want to make it clear that the committee
intends that library literacy projects continue to receive support
through the additional funds allocated for library services. I will
work in Conference Committee with the House to ensure that the
conference report reflects this intent.
Mr. SIMON. I thank my colleague. Though I obviously would feel more
comfortable if funds were appropriated
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specifically for this purpose, I appreciate my colleague's efforts to
accommodate my concerns regarding this important program.
medicare-medicaid databank
Mr. HOLLINGS. Mr. President, I rise for the purpose of engaging in a
short colloquy with the distinguished Senator from Pennsylvania and the
Senator from Arizona regarding the Medicare-Medicaid databank.
Mr. SPECTER. I am familiar with the issue and would be glad to
discuss it with my friends from South Carolina and Arizona.
Mr. HOLLINGS. Well, I do not believe that this is controversial
because it has been addressed in the past by the committee and by the
Senate. Last year, the committee report included report language
prohibiting the use of funds for the Medicare-Medicaid databank. This
year, the House fiscal year 1996 Labor, Health and Human Services,
Education, and Related Agencies Appropriations report again makes it
clear that the House committee does not intend for funds to be used for
this function, which could generate both needless paperwork and fines
for businesses across America. I just want to make the record clear
that the Senate continues to agree.
Mr. McCAIN. I share the concern of my friend from South Carolina and
have supported this prohibition from the start. Implementing the
databank clearly would burden business with costly reporting
requirements. In fact, I have introduced a bill to eliminate this
burdensome mandate and hope it could be passed by the end of the year.
Mr. SPECTER. I appreciate my colleagues raising this issue. I know
that language similar to the fiscal year 1996 House report language was
included in the Senate report last year, and certainly, the Senate
committee continues to agree.
Mr. McCAIN. I thank my friend from Pennsylvania for his
clarification.
Mr. HOLLINGS. I thank my colleagues and yield the floor
foreign operations
Mr. LEAHY. Mr. President, the chairman of the Foreign Operations
Subcommittee, Senator McConnell, and I have agreed to an amendment he
is offering to rescind $25 million in funds appropriated in Public Law
104-107, the fiscal year 1996 Foreign Operations bill, for the Export-
Import Bank. Those funds would then be eligible for transfer to the
Commerce, Justice, State Subcommittee for programs under the
jurisdiction of the Attorney General.
Senator McConnell and I have also agreed that if the $50 million
emergency supplemental appropriation for anti-terrorism assistance for
Israel that is contained in this omnibus appropriations bill is offset
with Defense Department funds or military construction funds, the $25
million transfer to the Commerce, Justice, State Subcommittee may
occur. However, if any of the Israel supplemental is offset with
Foreign Operations funds, the transfer will not occur. This ensures
that if the Israel supplemental is paid for with Foreign Operations
funds, the Export-Import Bank money would remain in the Foreign
Operations budget and would reduce the impact of that offset on Public
Law 104-107.
Mr. McCONNELL. Mr. President, the Senator from Vermont, Senator
Leahy, has accurately stated our understanding.
Mr. JOHNSTON. Mr. President, I would like to commend the
distinguished chairman, Senator Specter, and the distinguished ranking
member of the Labor, Health and Human Services Subcommittee on
Appropriations, Senator Harkin, for their guidance and cooperative
efforts in bringing this continuing resolution to the floor. There were
extreme differences of opinion on a variety of subjects within this
legislation, and both the chairman and ranking member deserve a great
deal of credit for their efforts.
Mr. President, I rise today to bring attention to a program that is
providing an indispensable service to Americans living underserved
rural areas. The committee has provided funding above request levels
for the Office of Rural Health Policy, and I applaud this decision.
Rural telemedicine is a novel initiative in that it provides people in
rural communities across the country access to physicians and instant
diagnosis. This is a particularly essential program given the declining
numbers of doctors who practice general medicine in our Nation's small
communities. Telemedicine research has been ongoing, with specific
efforts to determine the best and most efficient methods of delivering
these services to America's citizens.
One of the excellent telemedicine research projects which would have
been funded in 1995 was from Louisiana State University Medical Center
in New Orleans. LSU went through the competitive process and was highly
regarded on the merits, and I'm proud of their accomplishments, and the
work that they are doing in southeast Louisiana.
Mr. President, a number of telemedicine projects were approved last
year, but did not receive funding as a result of rescissions. The LSU
Telemedicine projects was just such a program. In order that LSU
Medical Center might continue its outstanding work, I would ask the
distinguished chairman and ranking member, and hope that they agree,
that consideration would be given to those programs that, after the
required peer review, should have received funding from the fiscal year
1995 appropriation, but were not based simply on timing.
Mr. SPECTER. I thank my distinguished colleague from Louisiana for
his comments, and for bringing this component of telemedicine research
to the subcommittee's attention. The subcommittee adjusted the funding
levels for the Office of Rural Health Policy because it felt that
programs, such as telemedicine, offer promise for improving services to
rural communities in the future. There is a need to evaluate how
telemedicine projects currently underway or under consideration fit
into the overall scheme of health care delivery in the areas being
served. Therefore, I think it would be consistent for the Health
Resources and Services Administration to consider previously approved
projects when it obligates Rural Health funding.
Mr. HARKIN. Mr. Chairman, I concur with your remarks. It would be
appropriate to continue these efforts to secure effective telemedicine
services for rural communities and to use existing, approved projects
where possible.
hcfa research and demonstrations
Mr. SIMON. Mr. Chairman, I want to bring to the attention of the
Senate and the committee language included in the Senate Appropriations
Committee Report accompanying H.R. 2127, the 1996 Labor, Health and
Human Service, Education Appropriations bill. It is my understanding
that unless specifically contradicted, all items in that committee
report are incorporated, by reference, in the committee report
accompanying the continuing resolution now being considered by the
Senate.
Mr. SPECTER. That is correct.
Mr. SIMON. Accordingly, language included in the Senate committee
report under the Health Care Financing Administration Research,
Demonstrations, and Evaluations account that encourages HCFA to give
``full and fair consideration'' to a proposal from Northwestern
Memorial for a ``3-year project to develop a comprehensive health care
information management system'' is incorporated by reference in the
report accompanying the continuing resolution now under consideration.
Mr. SPECTER. That is further correct. This is a project that warrants
full and fair consideration by HCFA, which should adhere to the
intentions of the Senate with regard to this important piece of report
language.
Mr. SIMON. At a time when the Congress is proposing--and HCFA will be
responsible for administering--significant reductions in Medicare and
Medicaid costs, this proposal is particularly timely. Specifically,
with the advent of managed care, and the resulting shift of patient
care from inpatient acute care to ambulatory and other primary care
settings, an integrated health care delivery system is essential. At
present, information management systems to measure cost outcomes--and
achieve cost savings--beyond the acute care setting are not
commercially available. The information management system recommended
in this report language would serve as a prototype for other health
care delivery systems, and offers the promise of cutting health care
costs while maintaining quality health care.
Mr. SPECTER. I share your interest in ensuring that HCFA has the
information necessary to reduce the costs of
[[Page S2288]]
health-related entitlements while maintaining quality care. I also
agree that the information management system referenced in the
committee report is precisely the kind of project that HCFA should be
exploring to achieve these objectives.
Mr. SIMON. Thank you for your interest in this important project.
flint creek
Mr. McCAIN. Mr. President, I would like to clarify for purposes of
the Record the amendment that we have just adopted.
First, the amendment gives the Federal Energy Regulatory Commission
[FERC] the discretion of whether to transfer the license for the Flint
Creek project. Second, in determining whether to transfer the license
the commission must determine whether the waiver of fees is warranted,
necessary and in the public interest.
In making these determinations FERC will ensure that the current
licensee receives no payment or consideration for the license transfer,
that no entity other than a political subdivision of the State of
Montana would accept the license if made available, and that a fee
waiver is necessary in order to transfer the license.
Mr. President, the proponents of this amendment inform me that
without a limited fee waiver, the Flint Creek project would be defunct,
the dam removed and that, accordingly, the Federal Treasury would
receive no fee revenues whatsoever, leaving both the people of the area
and the Federal Treasury worse off.
I trust that FERC will carefully examine the situation and exercise
its discretion to ensure fairness to the parties in Montana, the
Federal Treasury and all similarly situated projects. I ask my friend
from Montana, is that a correct reading of the amendment.
Mr. BURNS. My friend has described the amendment correctly.
cdbg funds
Mr. BOND. Mr. President, I support the amendment offered by the
Senators from South Dakota to earmark $13 million from the CDBG program
to enable the city of Watertown to replace a failed sewage treatment
plant without burdening that city with unfair additional debt and
devastating economic consequences. This grant will be matched by the
city.
The city of Watertown participated in an innovative wastewater
treatment project which failed. When that city undertook this
demonstration, it was with the encouragement of EPA, and with the
understanding that if the plant were to fail, that Federal grant funds
would be provided to enable the city to meet its secondary treatment
responsibilities.
Unfortunately, the plant has failed, and the authorization to make
such grants by EPA also has expired, since Congress has directed that
henceforth such assistance only be available in the form of formula
allocated capitalization of state revolving loan funds. It has been
argued that we should over-ride this statutory direction and make
specific grants to certain communities. Throughout the consideration of
this bill I have opposed such earmarks from the EPA state revolving
loan account, and I remain opposed to the diversion of EPA funding for
such site specific concerns.
Mr. President, despite my concern over such use of EPA revolving loan
funds, I reluctantly have accepted the argument of the Senators from
South Dakota that this city would be unfairly burdened with a massive
additional cost of financing a replacement wastewater treatment plant,
a cost that they were assured previously they would not have to pay.
More importantly, this additional cost, necessitated by the failure of
a technology recommended by the Federal Government, will have
devastating economic consequences for this city.
As such, amelioration of these consequences is one which the HUD CDBG
program was intended to address: that of creating or preserving
employment in a community. While I also am generally opposed to such
earmarks in the CDBG program, this is a program which has such purposes
under its current authorization, and as such, is a more appropriate
means of addressing the legitimate concerns of this community.
the committee for minority veterans and the committee on women veterans
Mr. AKAKA. Mr. President, would the Senator from Missouri, the
chairman of the VA, HUD, and Independent Agencies Subcommittee, yield
for a question?
Mr. BOND. I would be happy to yield for a question from the junior
Senator from Hawaii.
Mr. AKAKA. Is it the intention of the committee to include the
Committee for Minority Veterans and the Committee on Women Veterans
under the restrictions placed on the travel budget of the Secretary of
Veterans Affairs?
Mr. BOND. No, it was not.
Mr. AKAKA. Will the Committee for Minority Veterans and the Committee
on Women Veterans be able to meet their responsibilities, including
travel obligations, under the restrictions placed on the Secretary's
travel?
Mr. BOND. Yes, they will. I believe that the ranking member of the
Subcommittee, the Senator from Maryland, also supports this view.
Ms. MIKULSKI. That is correct. As a strong proponent of the Committee
on Women Veterans and the Committee for Minority Veterans, I fully
support their efforts and will make every effort to see that their
activities are not adversely affected.
Mr. AKAKA. I am most grateful for the Senator from Maryland's past
assistance in providing support and funding for the two centers.
As created by Congress, the centers were established to address the
special needs of women and minority veterans overlooked under the
Department's previous structure. Both centers and their respective
Advisory Committees have made great strides in identifying and
assisting minority and women veterans.
The Committee for Minority Veterans is required to meet at least
twice a year and submit a annual report no later than July 1. The
Committee on Women Veterans is scheduled to meet four times during a
fiscal year and is expected to submit its next annual report in January
1997. The projected costs for the two committee to hold meetings,
conduct public hearings, visit VA field facilities, and outreach to
minority and women veterans are estimated to be over $120,000 for the
remainder of the fiscal year. I am pleased that the provision in this
bill will not adversely affect the activities of the Center for
Minority Veterans and the Center on Women Veterans.
Mr. President, I thank the Senator from Missouri and the Senator from
Maryland for their assistance on this matter.
devils lake basin
Mr. CONRAD. I notice that the chairman and ranking member of the
Appropriations Subcommittee on VA-HUD and Independent Agencies are on
the floor and Senator Dorgan and I would like to engage them in a short
colloquy.
As you know, two amendments to the omnibus appropriations bill were
adopted on the floor on Monday providing much needed hazard mitigation
and disaster relief for the people of the Devils Lake Basin in North
Dakota. As Senator Dorgan and I stated on the floor prior to adoption
of those amendments, Devils Lake reached a 120-year high water level
last year, and the resulting flooding caused more than $35 million in
damages. Based on the most recent National Weather Service forecast on
March 1, we anticipate record high lake levels again this year. The
amendments which were adopted will go a long way toward preventing
another disastrous flood from occurring. We would like to know if
additional assistance might be available to North Dakota through the
Community and Development Block Grant Program.
Mr. DORGAN. We note that an additional $100 million dollars is
provided for the Community Development Block Grant Program in the
disaster supplemental portion, title II, of the pending bill. The State
of North Dakota, working with the affected counties of Benson and
Ramsey and the Devils Lake Sioux Tribe, have identified many homes that
will require relocation or acquisition to prevent them from being
damaged by floods later this year. A substantial portion of the
anticipated $50 million in flood damage could be prevented if homes in
the flood plain are acquired or moved prior to the flood. Senator
Conrad and I would like to inquire if CDBG block grant funds have been
used for acquisition and relocation in the past.
[[Page S2289]]
Mr. BOND. It is my understanding that CDBG funds have been used for
acquisition and relocation in the past and would be an allowable use of
these funds under HUD guidelines for the CDBG program.
Ms. MIKULSKI. I concur with the chairman of the subcommittee on the
use of CDBG funds for acquisition and relocation assistance. If Federal
dollars can be saved by taking action before flooding occurs, I think
we should do so.
Mr. CONRAD. I thank the chairman and ranking member for their
comments. We have one additional question for the chairman and ranking
member.
Mr. DORGAN. North Dakota has received a Presidentially declared
disaster declaration for each of the past 3 years. H.R. 3019 provides
disaster assistance for the Pacific Northwest and other recent natural
disasters. Could the chairman provide me with his view as to whether
the Devils Lake Basin would have eligibility for additional CDBG
assistance under the ``other recent disasters'' provision in title II
of H.R. 3019?
Mr. BOND. I believe the State of North Dakota would be eligible to
receive CDBG funding under title II of this bill, provided the
administration concurs with the congressional designation of the
appropriation as an emergency requirement pursuant to the Balanced
Budget and Emergency Deficit Control Act of 1985, and submission of an
official budget request to this end.
Ms. MIKULSKI. I believe the chairman's interpretation of the
provisions in the bill is correct.
Mr. CONRAD. I thank the chairman and ranking member of the
subcommittee for clarifying the intent of Congress regarding the
utilization of CDBG funds for flood mitigation efforts. I also want to
thank the chairman and ranking member of the full committee for their
help throughout this process.
Mr. DORGAN. I want to concur with the remarks of Senator Conrad. They
and their staffs have provided us with invaluable help in our efforts
to seek assistance to prevent flooding in the Devils Lake Basin in
North Dakota.
b-52 supplemental funding amendment
Mr. CONRAD. Mr. President, my distinguished colleague from North
Dakota and I offered an amendment reprogramming $44.9 million from Air
Force research and development, R&D, accounts to operations and
maintenance, O&M, earmarked for retention of our entire fleet of B-52H
aircraft in active status or a fully maintained attrition reserve.
Retention of these aircraft makes good sense. The B-52 is currently
our only dual-capable aircraft, capable of responding anywhere in the
world with advanced conventional precision guided munitions or in
support of our nuclear deterrent. The B-52 is our most proven bomber,
and as a result of consistent upgrades which are continuing, the B-52
is a thoroughly modern aircraft. Gen. Michael Low, former Commander of
the Air Combat Command, has stated that the B-52's airframe is good
until 2035. The B-52 is also cost effective, making it a good buy as we
work to balance the budget.
As my colleagues may be aware, the Air Force has announced its
intention to send up to 28 of these aircraft to the boneyard at Davis-
Monthan. This is clearly unwise. In the context of great uncertainty
over Russian ratification of START II, loss of the capability to
reconstitute the current force structure in a relatively short period
of time would likely decrease Russia's incentive for ratification. I
know that my colleagues shared this concern when they voted to pass the
fiscal year 1996 Defense Authorization Act, which included a provision
prohibiting the retirement of any B-52's or any strategic systems, with
fiscal year 1996 funds.
Recent events in the Taiwan Strait and frequent threatening Iraqi
military maneuvers near Kuwait since the gulf war highlight the wisdom
of this provision. In an era when we face the possibility of sudden
massive aggression that leaves us little time to deploy reinforcements,
the B-52's global reach is a valuable capability we ought not
sacrifice.
As many of my distinguished colleagues are aware, the Botton-Up
Review [BUR] found that 100 deployable conventional bombers are needed
to win one major regional conflict [MRC] before swinging to another
MRC. Because of the slow pace of conventional upgrades to the B-1 fleet
and the continuing production of the B-52, however, we could only
deploy 92 global range bombers if we had to go to war today. Sending
dual-capable B-52's to the boneyard when we are unable to meet our
requirements for even one MRC is unwise, if not dangerous.
Retention of these proven, cost effective, and highly capable bombers
is clearly in our interest, and I believe that this amendment is the
right way to do it. In light of the great budgetary pressure faced by
the Air Force in this time of fiscal austerity, I am pleased that a
portion of the Defense Department's unexpected inflation dividend was
available for reprogramming. No other valuable Air Force program will
be negatively affected by this amendment.
I urge my colleagues to support this amendment, and call on the
Department of Defense to respect Congress's prerogative to determine
the structure of our Armed Forces. In particular, I urge the Defense
Department to postpone inactivation of any part of our B-52 force until
Congress has completed all action on this year's defense budget,
including the reprogramming package currently under development by the
administration and supplemental appropriations legislation for fiscal
year 1996.
I thank my distinguished colleagues for their careful consideration
of this amendment, and yield the floor.
Mr. DORGAN. Mr. President, I rise to explain the amendment that I
have offered with Senator Conrad to ensure full funding for the B-52
bomber fleet. Let me outline what my amendment would do and then let my
colleagues know why the Senate should pass it.
We have 94 B-52 bombers in active service in the Air Force today. Our
experience in the Vietnam war and the Persian Gulf war shows that the
B-52 has long been our workhorse bomber. But despite what the B-52
continues to do for our national defense, the Air Force is considering
drawing down the B-52 fleet.
I am trying to prevent this from happening, and to keep B-52's up and
flying. My amendment would provide the Air Force with the funding to
operate and maintain 94 B-52 aircraft either in active status or in
attrition reserve. A plane in active status, of course, is part of a
combat coded squadron. A plane in attrition reserve is not in a
separate squadron but is cycled through active squadrons, and is
maintained in flyable condition.
In order to pay for full maintenance of the B-52 fleet, my amendment
would transfer $44.9 million in Air Force research and development
funds to Air Force operations and maintenance. The $44.9 million has
already been appropriated in the defense appropriations bill. The money
is available for transfer because the Defense Department's new
estimates of inflation led the Department to conclude that it can
accomplish its Air Force research and development with less money. In
fact, the Defense Department proposed that this $44.9 million be
rescinded as part of its supplemental appropriations and rescissions
request.
I have run my amendment by the Congressional Budget Office, and CBO
tells me two things that should cause my colleagues to support my
amendment. First, CBO believes that the $44.9 million funding transfer
will enable the Air Force to carry out my amendment's purpose of
maintaining 94 B-52's. So this amendment is fully funded. Second, CBO
has scored this amendment as saving $4 million in fiscal year 1996 and
as deficit neutral over the 5 years 1996 to 2000. CBO projects that
this amendment would actually save money in this fiscal year and be
deficit neutral over the next 5 years.
Having described my amendment, let me briefly tell my colleagues why
I think it is important that we retain our full, 94-plane B-52 fleet.
start ii treaty
The most important reason to keep 94 B-52's flying is that Russia has
not yet ratified the START II Treaty. START II is the arms control
treaty that requires both us and the Russians to cut our nuclear
stockpiles. It makes no sense to retire strategic weapons systems when
START II has not yet gone into effect. Disarmament should
[[Page S2290]]
not be unilateral. Members of the Russian Duma will doubtless ask
themselves why they should ratify START II if the United States is
cutting its strategic bomber force anyway.
congressional intent
Second, Congress has explicitly recognized the force of these START
II considerations. We wrote a provision into law, section 1404 of the
National Defense Authorization Act for Fiscal Year 1996, forbidding the
retirement of any strategic weapon system this year. We did that
because we knew that we should not cut our nuclear arsenal until Russia
subjects itself to the limits in START II. That is why section 1404
explicitly prohibits retiring B-52 bombers or even preparing to retire
them. My amendment simply backs up section 1404 with the funding the
Air Force needs to maintain the full B-52 bomber fleet. I seek to
enable the Air Force to carry out the intent of Congress.
capabilities of b-52 fleet
Third, I would remind my colleagues that B-52 bombers are long-range
force projectors. With maximum fuel load, the B-52 can fly 10,000 miles
without in-air refueling, which is over 33 percent further than the B-1
or B-2 bombers. With in-air refueling, the B-52 literally has a
worldwide range. The B-52 has been modified to carry up to 12 air-
launched cruise missiles externally and 8 internally. Alternatively, it
can carry up to 50,000 pounds of attack missiles and gravity bombs. A
bomber of such range and payload is vital in order to project air power
to areas where the United States lacks prepositioned equipment or bases
capable of handling heavy bombers.
To take an example, Mr. President, right now we face a crisis in
Southeast Asia, in the Taiwan Strait. China is firing live ammunition
and testing dummy missiles in a way that is calculated to disrupt
Taiwan's economy and rattle Taiwan's electorate. We have one carrier
task force in the area; we are moving a second carrier task force from
the Persian Gulf to Southeast Asia in order to keep the peace. Well,
the B-52 has already kept the peace in the Persian Gulf. And it can
keep the peace in Southeast Asia in one hop if need be. It makes no
sense to retire B-52's at a moment when our ability to project force
into every corner of the world is key to the peace of Southeast Asia.
bomber study ongoing
Last, my colleagues will recall that in February President Clinton
ordered the Defense Department to study the future of our long-range
bomber fleet. The Deep Attack Weapons Mix Study, which is headed by
Under Secretary of Defense for Acquisition and Technology Paul Kaminski
and Vice Chairman of the Joint Chiefs of Staff Gen. Joseph Ralston,
will examine both the munitions and the bombers used to strike deep
into enemy territory. That study includes a close look at the strategic
bomber force structure. It seems to me that any retirement of B-52
bombers would prejudge the results of the Deep Attack Weapons Mix
Study. I think my colleagues will agree that we should ensure that the
Air Force can await the results of the study before retiring any B-52
bombers.
In conclusion, Mr. President, I am asking the Senate to approve an
amendment that is paid for, that fulfills congressional intent, that
maintains America's strategic forces, and that keeps a capable bomber
in the air. I hope my colleagues will support this amendment.
Thank you, Mr. President. I yield the floor.
americorps
Mr. LEAHY. Mr. President, I support the mission of AmeriCorps. I
believe that engaging Americans of all ages to help communities solve
their own problems is a worthy goal.
One of the greatest threats facing our cities and towns today is the
loss of a sense of community responsibility. AmeriCorps invites
Americans to put something back into their communities--to reestablish
the local ties that have been so important to this country.
I am very concerned about the provision in this omnibus
appropriations bill which terminates AmeriCorps grants through Federal
agencies. Right now, about half of AmeriCorps participants in my home
State run through the USDA AmeriCorps Program. This includes the
Vermont Anti-Hunger Corps and a rural development team. These projects
have involved nonprofit groups, and a unique partnership of Federal,
State, and local organizations. All of which have contributed to their
success.
I want to clarify with the Chairman that this language would not
preclude these local programs currently funded through Federal agencies
to continue through national direct grants or through State
commissions.
Mr. BOND. Yes, the Senator is correct. If local programs currently
being funded through Federal agencies are doing a good job, then I
would encourage them to either work with national groups to apply for
funding or work with the commission in the State in which they reside.
These local programs have the experience and expertise to compete very
well for AmeriCorps grants. I expect the Corporation for National and
Community Service and the State commissions to take this experience
into consideration when reviewing new grantees. The bottom line is that
we do not want Federal agencies capitalizing on funds that should be
going directly to nonprofit organizations.
Mr. LEAHY. I thank the Chairman Senator Bond. I ask Senator Mikulski
if this is also her understanding?
Ms. MIKULSKI. I share the concern of the Senator, about the
termination of the grants to Federal agencies. Unfortunately, we lost
the public relations war in defining how these Federal agency grants
really work. These programs are not bloated bureaucracies, but a way
for small local programs to benefit from the technical expertise of
Federal agencies in designing programs to meet their own local needs. I
would urge any local program currently being funded through a Federal
agency to apply through the national direct grants or through their own
State commissions.
Mr. LEAHY. I thank Chairman Bond and Senator Mikulski. I plan to work
closely with these Vermont programs so that they can continue to
providing services through AmeriCorps. And I appreciate all of the work
the Senators have done to come to a bipartisan agreement on funding for
AmeriCorps. I look forward to continue working with them on this
important issue.
veterans health care
Mr. McCAIN. Mr. President, we need to take immediate steps to
implement a plan to better allocate health care funding among the
Department's health care facilities so that veterans, no matter where
they live or what circumstances they face, have equal access to quality
health care.
The amendment that I propose here today with my distinguished
colleague, Senator Bob Graham of Florida, will, I hope, finally direct
the Department of Veterans Affairs to do the right thing. That is, to
eliminate funding disparities among VA health care facilities across
the country.
Mr. President, inequity in veterans' access to health care is an
issue that I originally brought to Secretary Jesse Brown's attention in
March 1994. The Department of Veterans Affairs is currently using an
archaic and unresponsive formula to allocate health care resources. The
system must be updated to account for population shifts.
The veterans population in three States, including Arizona, is
growing, at the same time that it is declining in other parts of the
country. Unfortunately, health care allocations have not kept up with
the changes. The impact of disparate funding has been very obvious to
me during my visits to many VA medical centers throughout the country,
and particularly in Arizona, and was confirmed by a formal survey of
the Carl T. Hayden VA Medical Center in Phoenix, which was conducted by
the Veterans of Foreign Wars [VFW] in April 1994.
The problem has been further verified by the General Accounting
Office [GAO] in a report entitled ``Veterans Health Care: Facilities'
Resource Allocations Could Be More Equitable.'' The GAO found that the
Department of Veterans Affairs continues to allocate funding based on
past budgets rather than current needs, and has failed to implement the
Resource Planning and Management system [RPM] developed 2 years ago to
help remedy funding inequity.
[[Page S2291]]
Mr. President, the GAO cites VA data that the workload of some
facilities increased by as much as 15 percent between 1993 and 1995,
while the workload of others declined by as much as 8 percent. However,
in the two budget cycles studied, the VA made only minimal changes in
funding allocations. The maximum loss to a facility was 1 percent of
its past budget and the average gain was also about 1 percent.
This inadequate response to demographic change over the past decade
is very disturbing, and, I believe, wrong. To illustrate the problem, I
would point out that the Carl T. Hayden VA Medical Center experienced
the third highest workload growth based on 17 hospitals of similar size
and mission, yet was only funded at less than half the RPM process.
Mr. President, the GAO informs me that rather than implementing the
RPM process to remedy funding inequities in access to veterans health
care, the VA has resorted to rationing health care or eliminating
health care to certain veterans in areas of high demand.
The GAO says:
Because of differences in facility rationing practices,
veterans' access to care system wide is uneven. We found that
higher income veterans received care at many facilities,
while lower income veterans were turned away at other
facilities. Differences in who was served occurred even
within the same facility because of rationing.
The GAO also indicates that there is confusion among the Department's
staff regarding the reasons for funding variations among the VA
facilities and the purpose of the RPM system.
Mr. President, this problem must be addressed now. This amendment
compels the VA to take expeditious action to remedy this serious
problem and adequately address the changes in demand at VA facilities.
To conclude, I want to reiterate that I find it simply unconscionable
that the VA could place the Carl T. Hayden VA Medical Center at the
bottom of the funding ladder, when the three VA medical facilities in
the State of Arizona must care for a growing number of veterans, and
are inundated every year by winter visitors, which places an additional
burden on the facilities.
I ask unanimous consent that the VFW survey and the GAO summary
report be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Veterans of Foreign Wars of
the United States,
Washington, DC, April 7, 1994.
John T. Farrar, M.D.,
Acting Under Secretary for Health (10), Veterans Health
Administration, Department of Veterans Affairs,
Washington, DC.
Dear Dr. Farrar: A member of my staff, Robert F. O'Toole,
Senior Field Representative, conducted a survey of the
Phoenix, Arizona, Department of Veterans Affairs Medical
Center, on March 14-15, 1994. During his time at the medical
center, he was able to talk with many patients, family
members and staff. This enabled him to gather information
concerning the quality of care being provided and the most
pressing problems facing the facility.
While those receiving treatment in the clinics and wards
felt that the quality was good, they almost all commented on
the long waits in the clinics and the understaffing
throughout the medical center. In discussing their problem
with various staff members, it was noted that nurses were
under extreme stress. More than one was observed by Mr.
O'Toole in tears when completing their tour. The nursing
staff on evening shifts must rush continually through their
duties in an attempt to cover all their patients needs due to
the shortage in staffing in both support and technical
personnel.
In attempting to determine the reason for this problem, it
became apparent that the station was grossly underfunded.
Which means that the staff must either take unwanted
shortcuts or continue to work beyond the point expected of
staffs at the other medical centers. While it is well
understood that the Veterans Health Administration is
underfunded throughout the system, it is clear from the
comparisons that this facility has not received a fair
distribution of the available resources resulting in the
deplorable situation now facing the health care team.
Another problem in Phoenix that must be addressed is the
serious space deficiency, especially in the clinical areas.
The ambulatory care area was designed to handle 60,000 annual
visits. In fiscal year 1993, the station provided 218,000
annual visits, almost four times the design level. Many
physicians are required to conduct exams and provide
treatment from temporary cubicles set up inside the waiting
rooms. This bandaid approach has added to the already
overcrowding.
The other problem that we feel should be pointed out is
that of the staffing ceiling assigned to the Carl T. Hayden
Veterans Medical Center. Currently, the medical center has a
FTE of 1530 which is over the target staffing level. Based on
available reports, the medical center would need an
additional 61 registered nurses just to reach the average
Resource Program Management (RPM) within their group. This
facility operates with the lowest employee level in their
group when comparing facility work loads, and 158th overall.
To reach the average productivity level of the Veterans
Health Administration medical centers, they would need an
additional 348 full-time employees. While it is realized that
this station will never be permitted to enjoy that level of
staffing, it is felt that they, at the least, should have
been given some consideration for their staffing problems
during the latest White House ordered employee reductions.
To assist the medical center to meet their mandatory work
load, and the great influx of winter residents, it is
recommended that the $11.4 million which was reported to the
Arizona congressional delegation to have been given Phoenix
in addition to their FY 94 budget be provided. To enable the
station to handle the ever increasing ambulatory work load,
the Veterans Health Administration must approve the pending
request for leased clinic space in northwest Phoenix and, the
implementation plan for the use of the Williams Air Force
Base hospital as a satellite outpatient clinic, along with
the necessary funding to adequately operate the facility. In
addition, VHA should approve and fund, at a minimum, the
expansion of the medical centers clinical space onto the
Indian School land which was acquired for that purpose.
Approval of the above recommendations would make it much
easier for this medical center to meet the needs of the ever
increasing veteran population in the Phoenix area. There is
no indication that the increasing population trends will
change prior to the year 2020. This hospital cannot be
allowed to continue the downhill slide. The veterans of
Arizona deserve a fair deal and the medical staff should be
given the opportunity to provide top quality health care in a
much less stressful setting.
I would appreciate receiving your comments on the Phoenix
VA Medical Center at your earliest opportunity.
Sincerely,
Frederico Juarbe, Jr.,
Director, National Veterans Service.
______
U.S. General Accounting Office, Health, Education, and
Human Services Division,
Washington, DC, February 7, 1996.
Hon. John McCain,
U.S. Senate.
Dear Senator McCain: The Department of Veterans Affairs
(VA) is faced with the challenge of equitably allocating more
than $16 billion in health care appropriations across a
nationwide network of hospitals, clinics, and nursing homes.
The challenge is made greater by the shifting demographics of
veterans. While nationally the veteran population is
declining, veterans have migrated from northeastern and
midwestern states to southeastern and southwestern states in
the past decade, offsetting veteran deaths in these states.
VA has historically based its allocations to facilities
primarily on their past funding levels--providing incremental
increases to facilities' past budgets. In an effort to
improve its planning, allocation, and management processes,
VA made a considerable investment in implementing a new
system, called the Resource Planning and Management (RPM)
system, for use initially in fiscal year 1994. VA considers
RPM to be a management decision process to use to formulate
its budget, allocate most of its resources, and compare
facility performance.\1\ As the basis for resource
allocation, RPM classifies each patient into a clinical care
group, calculates average facility costs per patient, and
forecasts future workload. VA envisioned that the system
would improve VA's management of limited medical care
resources, better define future resource requirements, and
enable VA to explore opportunities to improve quality and
efficiency in its health care system. This vision included
improving the equity of its allocations by more closely
linking resources with facility workloads and alleviating
inconsistencies in veterans' access to care across the
system.
---------------------------------------------------------------------------
\1\ Footnotes at end.
---------------------------------------------------------------------------
Two recent events could have significant implications for
VA's resource allocation system. First, VA is restructuring
its organization to establish 22 veterans integrated service
networks (VISN) that will replace four regional offices and
assume the individual facilities' role as the basic budgetary
and planning unit for health care delivery. The new structure
will require some change in how resources are allocated.\2\
Second, the Senate passed your proposed amendment to the
VA appropriations bill that would require VA to develop a
plan for the allocation of health care resources among its
health care facilities to ensure that veterans have the
same access to quality health care.\3\
Because of your interest in this issue, you asked us to
review the equity of VA's resource allocation system,
particularly as it related to the allocations made to the
Carl T. Hayden Medical Center in Phoeniz, Arizona. More
specifically, you asked us to determine the following:
To what extent does VA's allocation system provide for an
equitable distribution of resources among VA facilities?
[[Page S2292]]
What are the causes of any inequity in the distribution of
resources, and what changes, if any, would help ensure that
the system more equitably distributes resources?
In September 1995, we sent you our preliminary
observations.\4\ This report presents our final results.
To accomplish our objectives, we first needed to apply a
definition of the term ``equity.'' We based our evaluation of
the equity of the system's distribution on VA's vision for
RPM.\5\ We considered the following two elements to be
characteristics of an equitable system:
It provides comparable resources for comparable workload.
It provides resources so that veterans within the same
priority categories have the same availability of care, to
the extent practical, throughout the VA health care system.
We then reviewed VA documents and analyzed RPM system data
to determine the degree to which these two elements were
present. We discussed potential reasons for any inequities in
allocations with VA Headquarters, the Boston Development
Center, the RPM Committee, and facility officials in several
locations. To assess potential changes to address inequities,
we discussed such changes with VA officials and reviewed VA
documents on its original plans for RPM and minutes of
several RPM committees and work groups. Further details of
our scope and methodology are in appendix I. We performed our
review between December 1994 and October 1995 in accordance
with generally accepted government auditing standards.
results in brief
The resource allocation system gives VA the ability to
identify potential inequities in resource distribution and to
forecast workload changes. Data generated by the system show
wide differences in operating costs among facilities that VA
considers comparable, even after factors such as locality
costs and patient mix differences are considered. VA's data
also show some facilities' overall patient workloads
increasing by as much as 15 percent between 1993 and 1995,
and others' workloads declining by as much as 8 percent.
However, in the two budget cycles in which RPM has been in
effect, VA used it to make only minimal changes in
facilities' funding levels--the maximum loss to any facility
was about 1 percent of its past budget and the average gain
was also about 1 percent. As such, VA's distribution of
resources has remained almost exclusively related to
incremental changes to the amount that each facility has
received in the past.
To date, VA has chosen not to use the RPM system to help
ensure resources are allocated more equitably. VA officials
indicated that larger reallocations were not made during the
first 2 years of RPM to allow facilities time to understand
the process. VA officials also cited several other reasons
that significantly larger reallocations among facilities
could not be made. Although VA is taking some actions on
these issues, it has not fully addressed concerns that (1)
facilities cannot efficiently adjust to large budget changes,
(2) VA needs a better understanding of the reasons for the
variations, and (3) resources allocated to facilities outside
the RPM process should also be considered in judging the
equity of distributions. VA's reasons for not using RPM to
even out differences in veteran access to care were less
clear as there appeared to be confusion within VA about
whether the resource allocation system was intended to
achieve this goal.
footnotes
\1\ VA in 1995 operated 172 hospitals, 375 ambulatory
clinics, 133 nursing homes, and 39 domiciliaries. For
resource allocation purposes, RPM combines certain health
care facilities that are managerially associated. In total
the RPM system develops allocations for 167 facilities.
\2\ VA officials indicated that as part of this change, the
resource planning and management processes it used would
change and the system would be renamed. At the time of our
review, the system was known as RPM.
\3\ On September 26, 1995, the Senate adopted amendment
number 2787 to the VA appropriations bill, which was in
conference at the time of our review. If it becomes law, the
provision would require the Secretary of VA to develop a plan
for the allocation of health care resources to ensure that
veterans having similar economic status, eligibility
priority, and/or similar medical conditions have similar
access to care regardless of the region in which the veterans
reside. The plan will include, among other things, procedures
to identify reasons for variations in operating costs among
similar facilities.
\4\ See VA's Medical Resource Allocation System (GAO/HEHS-95-
252R, Sept. 12, 1995).
\5\ This vision was described in the Secretary's statements
to the Congress on RPM and in other VA publications.
Mr. GRAHAM. Mr. President, I am here to offer my enthusiastic support
as an original cosponsor of Senator McCain's amendment. Mr. President,
as a nation, we have always been able to come together in times of
crisis--especially in times of war.
Despite our sometimes vehement disagreements, we as citizens of this
great country have always been able to put partisanship aside when our
young men and women are called to fight for democracy. For this--we can
all be very proud. But the strength of a nation is displayed not just
during war, but also in its aftermath. When the battles have long since
raged, and the memories of welcome home parades have faded, it is at
this time when our Nation can proudly display its commitment to those
who fought the battles to keep this country free--our Nation's
veterans. Mr. President, please take note when I say ``Our Nation's
Veterans.'' They are not Florida's veterans or Arizona's veterans or
New York's veterans. They are our veterans, and we as a nation have a
collective responsibility to honor the commitment we made to them. When
Members of this honorable body, including my esteemed colleague from
Arizona, volunteered to do battle for America's freedom, no one asked
what geographic region they came from. That question would have been so
insignificant as to border on the absurd.
Sadly, after our veterans returned home, and it is our turn to honor
our commitments to them--where they live matters a great deal. Mr.
President, just last month, the General Accounting Office published a
rather startling report.
Allow me to highlight a few of the report's findings.
The Department of Veterans Affairs has had a system in place for 3
years, known as RPM--Resource Planning and Management--designed to give
veterans better access to health care regardless of where they live.
While not perfect, the system as designed would go a long way toward
equal treatment for veterans.
However, despite the time, money, and effort put into designing such
a system--VA has chosen not to use it. Between 1993 and 1995, some VA
facilities' patient workloads have skyrocketed by as much as 15
percent. At other facilities, patient workloads have decreased by 8
percent.
Despite this wide disparity in patient workload change, the VA has
used its own resource allocation system to change any given facility's
budget by the minuscule total of plus or minus 1 percent.
The decision to pay homage to bricks and mortar rather than to our
Nation's veterans has its price--and our Nation's veterans pay it. GAO
reports that patient workload increases above historical workload are
funded at 17 cents on the dollar--so if a veteran moves from New York
to Florida--he will get 83 percent less care solely because he moved.
That is not right.
Surely, though, the VA must have compelling reasons for not acting on
the RPM system. Surely, there must be terrible consequences should VA
decide to forgo the status quo. Again, sadly--no. VA's justifications
for inertia are weak--but here they are.
First, VA claims that facility managers will have difficulty in
adjusting to the large budgetary changes that would come about should
resource allocation become more equitable. Mr. President, isn't
adjusting to budget fluctuations what makes for good management, and in
this case good government? In a private sector system, the chief
executive of the hospital makes budgetary decisions based on
forecasting patient workload on an annual basis. Why should we demand
any less from the VA? Further, any difficulties VA facility managers
have in adjusting to budgetary changes pale in comparison to the
difficulties our veterans face as a result of VA's inertia. This seems
to me, Mr. President, as a perfect example of the tail wagging the dog.
Second, the second justification for failing to treat veterans
equally is that VA doesn't understand why some facilities are able to
make do with less funding while others require more resources for the
same number of patients. VA reasons that until it understands why some
facilities are more efficient than others, the agency won't implement a
system that achieves fairness. Mr. President, it is a given that
facilities which receive more than their share of resources will use
all of these resources and facilities which receive less than their
share will struggle and make do as best they can--rationing care along
the way. But there are breaking points for even the most efficient
facilities. And the consequences for these facilities fall squarely on
our Nation's veterans and manifest themselves in concrete ways.
For instance, a veteran who would normally have to wait 2 weeks to
see an orthopedic surgeon may have to wait 6 months to see one should
he choose to retire to Florida and Arizona. Or, a veteran who used to
get free prescription glasses up North is laughed out of the VA
facility down South. Because of this disparity, some
[[Page S2293]]
veterans are forced to move back home to get the care to which they are
accustomed. Others simply give up in despair. Mr. President, we can
help to rectify this inequity today. Right now. Our amendment would
simply mandate that VA develop a plan for their fair allocation of
resources to ensure that veterans having similar economic status,
eligibility priority, and similar medical conditions have similar
access to care regardless of where they live. And in the end, providing
equal care to all our Nation's veterans is what the VA health care
system is all about.
We as politicians can quibble over such terms as construction
projects, resource allocation methodology, and patient workload, but
one thing is certain: We all have a stake in honoring our collective
commitment to our veterans--and they deserve no less.
Thank you, Mr. President.
Mr. CHAFEE. Mr. President, the managers' amendment to the omnibus
appropriations bill for fiscal year 1996 includes a provision--added on
behalf of myself and Senator Kempthorne--to increase the appropriation
for Endangered Species Act listing activities by the U.S. Fish and
Wildlife Serivce from $750,001 to $2,000,001. The total amount
available for the Fish and Wildlife Service's resource management
activities is increased by $1,249,999 to accommodate this addition to
the listing account. Senator Kempthrone and I proposed this amendment
in order to address concerns raised during debate last week on the
Endangered Species Act listing moratorium.
Let us review the bidding.
On March 13, the Senate approved a second-degree amendment offered by
Senator Hutchison and Senator Kempthorne to Senator Reid's underlying
amendment to strike the moratorium on final listings under the
Endangered Species Act. The Hutchison second-degree amendment imposes a
moratorium on final decisions to list species as threatened or
endangered and on final decisions to designate critical habitat.
However, the Hutchison amendment allows the Fish and Wildlife Service
to use funds appropriated under the omnibus bill to issue emergency
listings, to propose species for listing, and to review and monitor
species on the candidate list.
Mr. President, I oppose Senator Hutchison's second-degree amendment
because I believe that a moratorium on adding species to the threatened
and endangered list is wrong. Thus, I supported Senator Reid's
amendment to strike the provisions that would impose a moratorium on
adding new species to the threatened and endangered lists. Make no
mistake about it--I continue to oppose the provision in this bill that
would impose a moratorium on final decisions by the Secretary of the
Interior or the Secretary of Commerce to list a species or to designate
critical habitat under the Endangered Species Act.
During the March 13 debate on the ESA moratorium, it was pointed out
that the second-degree amendment offered by Senators Hutchison and
Kempthorne increased the authority of the Fish and Wildlife Service, as
compared to that included in the underlying bill, but provided only $1
in new funding. This would have resulted in a difficult situation for
the Fish and Wildlife Service as appropriations for listing activities
would have been sorely inadequate to meet the needs and requirements of
the law. In other words, it would have been nearly impossible for the
Service to perform the tasks that are authorized under the Hutchison
language--tasks such as decisions on emergency listings or responses to
citizen petitions--without an increase in funding. The $1,249,999 that
is added to the listing account under this amendment is intended to
provide the U.S. Fish and Wildlife Service with funding necessary to
perform emergency listings and other listing activities that are
authorized under the Hutchison amendment.
Mr. President, it was a pleasure to work with Senator Kempthorne and
Senator Hutchison on this amendment. And, while I oppose the ESA
listing moratorium, I believe that--working together to secure
additional funding for listing activities--we have improved the
prospects for orderly, effective research and conservation efforts by
the Fish and Wildlife Service. It is my hope that we can continue to
work together to enact responsible legislation to reauthorize the
Endangered Species Act later this year.
I would like to thank Senators Hatfield and Gorton and their
Appropriations Committee staff for their assistance with this
amendment. Also, I very much appreciate the willingness of Senator
Hatfield and of Senator Byrd to include this provision in the managers'
amendment.
hiv-positive servicemembers
Mr. NUNN. Mr. President, the National Defense Authorization Act for
fiscal year 1996, which was signed into law by the President on
February 10, 1996, contains a provision which mandates the discharge of
every member of the Armed Forces who is HIV positive within 6 months.
At the present time, the services have in place procedures for
medically separating HIV-positive personnel who are physically
disabled. Those who are not disabled are placed in a nondeployable
status but continue to perform military duties.
This is similar to the status of others whose medical condition--such
as cancer, heart disease, asthma, and diabetes--restrict deployability
but not the capability to provide valuable military service.
The new procedure would require the Armed Forces to discharge, not
later than August 31, 1996, those who are physically capable of
performing their military duties and who are, today, providing valuable
service to the Nation.
The new mandatory discharge policy rejects the judgment of the Armed
Forces that HIV-positive servicemembers should be treated no
differently from others whose medical condition renders them
nondeployable.
That judgment was made by the Joint Chiefs of Staff during the Reagan
administration, and was recently reemphasized by Secretary of Defense,
Bill Perry, and JCS Chairman, Gen. John Shalikashvili.
The new policy represents a sharp break with the traditional military
practice of considering medical discharge on a case-by-case basis. In
my judgment, the new policy is unnecessary, wasteful, unfair, and
unwise.
The new policy is unnecessary because HIV-positive personnel
represent a tiny fraction of our Armed Forces. Out of the 1.4 million
members of the Armed Forces on active duty, only 1,150 are HIV
positive. That is less than one-tenth of 1 percent.
Moreover, these HIV-positive servicemembers constitute only one-fifth
percent of the 5,000 personnel in the military who are permanently non-
deployable for medical reasons.
If we can usefully accommodate some 4,000 individuals who are non-
deployable for reasons other than HIV, there is no reason why we should
discharge the small additional fraction who are HIV positive.
The policy is wasteful because it will be throwing away the large
investment the military has made in the training and experience of
individuals who can still make a valuable contribution to the Armed
Forces. Why throw away that investment at the peak of an individual's
career?
Not only will the new policy waste our recruitment and training
dollars, it will throw away invaluable experience.
Consider the case of the sergeant who has been married for 10 years,
who has a child, and who is HIV positive. His service record is full of
honors, including an award for automating a warehouse system that saved
the Navy an estimated $2 million over a 2-year period.
He has 12 years of service and has been HIV positive for 5
years. There is reasonable likelihood that he could serve for many more
years, with the potential to develop systems that will save millions
more for the Navy.
This new policy will deprive him of his livelihood and deprive the
taxpayers of the contributions that he can make to greater efficiency
and savings.
The new policy is unfair because it will leave many servicemembers
without employment for themselves and health care for their families.
There is a sergeant with 13 years of service who is married, with three
children. He is HIV positive, as is his wife and two of the three
children.
Under the new policy, he is the only one of the family who will
retain a right to DOD medical care. His family, including his HIV
positive wife and two HIV positive children, will be excluded from any
DOD health care.
[[Page S2294]]
As a result of the bill, he will be discharged from service, lose his
employment, loss his retirement potential, and lose his family's
medical care.
This is an individual who is perfectly capable of performing military
duties, yet we are going to throw away our investment in him and place
him in dire financial straits--even though those who are non-deployable
for reasons other than HIV will remain in service. That is unfair.
The new policy is unwise, because it could undermine the traditional
doctrine of judicial deference to Congress in the realm of military
personnel policy.
In a 1994 essay in the Wake Forest Law Review, I examined the Supreme
Court's precedents and concluded that the Court's jurisprudence
reflected ``the highest degree of deference to the role of Congress and
respect for the judgment of the Armed Forces in the delicate task of
balancing the interests of national security and the rights of military
personnel.''
I also noted, however, that the Supreme Court emphasized that
Congress is not free to disregard the Constitution when it acts in the
area of military affairs. Consequently, it is essential that Congress
act with care when it establishes procedures that would impose
conditions on military service that would be constitutionally
impermissible in civilian life.
In the case of the new HIV discharge policy, we have not acted with
care. It is instructive to contrast the development of the new policy
with the process followed in 1993 when the legislative and executive
branch considered the policy on homosexuality in the Armed Forces.
In February 1993, Congress rejected an amendment that would have
imposed a policy without any hearings of deliberation. Instead, we
provided for a 6 month detailed review within the executive branch and
Congress.
That period provided an opportunity for the Department of Defense and
Congress to hold hearings, receive testimony from the members of the
Armed Forces, legal and academic experts, and interested members of the
public. The Senate Armed Services Committee alone complied a record of
more than 1,000 pages in testimony.
The hearing process and DOD reviews in 1993 were followed by
the development of a proposed DOD policy and specific legislation,
including detailed legislative findings. The findings focused on clear
expert testimony on the impact on unit cohesion, morale, discipline,
and military effectiveness.
The civilian and military leadership of the Department of Defense
supported the legislation; it was overwhelmingly approved after
thorough debates in both the House and the Senate, was signed into law
by the President, and has been defended by the Department of Justice in
the face of several legal challenges.
Although there may be disagreement on the merits of the 1993 policy,
the process ensured careful and thorough review by the legislative and
executive branches of the relevant policy and constitutional issues.
The process was designed to provide for careful and thorough review.
The contrast to the development of the new HIV policy could not be more
striking.
There has been no review within the executive branch. In fact, the
military leadership views the policy as unnecessary and unfair.
The House did not develop a detailed legislative record, and the
provision was not even included in the Senate-passed bill.
There is not a clearly articulated legislative basis for treating
HIV-positive personnel in a manner that differs from the treatment of
other nondeployables.
In the absence of careful legislative consideration, it could be
difficult for the new policy to survive a constitutional challenge--
particularly in terms of the weak arguments for the policy.
Supporters of the provision have relied primarily on three reasons to
justify the provision.
First, they believe that the retention of HIV-positive personnel
degrades unit readiness. There has been no showing, however, that the
small fraction of nondeployable personnel who are HIV positive have a
significantly greater impact in this regard than the large number of
persons who are nondeployable for other reasons.
The second reason given for the policy is to establish deployment
equity on the grounds that if a person is nondeployable, other
servicemembers stand a greater risk of deployment. That concern might
be appropriate if the numbers were significantly greater and if the HIV
positive personnel were the only nondeployables. For example, if the
number of HIV positive personnel in the Marine Corps were to become a
significant percentage, then the HIV policy would have to be
reconsidered together with the policies that retain servicemembers who
are medically nondeployable for reasons such as cancer, diabetes,
asthma, and heart disease.
This however, is not the case today. The numbers are tiny and the
persons who are nondeployable for other reasons greatly outnumber those
who are HIV positive.
The third rationale offered by supporters of the policy is that
discharge is warranted because, it is asserted, persons who are HIV
positive likely contracted the infection through sexual misconduct or
drug abuse.
There are two problems with this argument. First, it ignores the
well-established medical fact that HIV can and often is
transmitted through actions that do not involve military misconduct,
such as blood transfusions and heterosexual conduct.
Second, there are ample administrative and judicial procedures in the
Armed Forces to discipline those who engage in misconduct involving sex
and drugs. The record does not establish a military need to discharge
all who are HIV positive in order to maintain good order and
discipline.
The administration, believing the new provision to be
unconstitutional, has determined that it will obey the law but not
defend it in court.
As a result, the judiciary will be thrust into the midst of a
constitutional debate on a controversial military personnel matter with
a sparse legislative record and a severe split between Congress and the
President.
It is an invitation to undermine the doctrine of deference, which has
served so well and so long to ensure that the Armed Forces have the
tools necessary to maintain good order and discipline without
interference from the courts.
For that reason alone, the provision should be repealed.
This provision was not part of the Senate-passed authorization bill.
I opposed this provision during the conference with the House of
Representatives on the authorization bill and I spoke out against it on
the floor of the Senate during debate on the conference report.
Today, I support the amendment that would repeal this provision.
Mrs. BOXER. Mr. President, despite my objections to the omnibus
appropriations bill, I am pleased that it includes an amendment
overturning the prohibition on military service by HIV-positive
personnel. As my colleagues are aware, this grossly unfair prohibition
was established in the fiscal year 1996 DOD authorization bill and will
become effective this summer.
I opposed the fiscal year 1996 DOD authorization bill largely because
of this provision. The day the Senate approved that provision, I vowed
to mount an effort for repeal. I am pleased that today, the full Senate
has joined in that fight.
The policy now in effect--developed in the Reagan and Bush
administration--works well. The amendment contained in this bill
reinstates the current policy, in which military personnel who test
positive for the HIV virus are permitted to keep their jobs, so long as
they are physically able.
Currently, HIV-positive personnel are treated in the same manner as
other soldiers with chronic ailments such as diabetes and heart
disease. Only about 20 percent of the roughly 6,000 worldwide
nondeployable troops are HIV positive.
Dismissing all HIV-positive soldiers makes no sense. Why should the
Pentagon fire military personnel who perform their duties well and
exhibit no signs of illness? This would waste millions of tax dollars
in unnecessary separation and retraining costs.
Backers of this provision argue that HIV-provision personnel degrade
readiness because they are not eligible for worldwide deployment. This
argument is absurd. Can anyone seriously contend that about 1,000
personnel--less than 0.1 percent of the active force--could have a
meaningful impact on readiness?
[[Page S2295]]
Assistant Secretary of Defense Fred Pang clearly expressed the
Department's position, writing,
As long as these members can perform their required duties,
we see no prudent reason to separate and replace them because
of their antibody status. However, as with any Service
member, if their condition affects their performance of duty,
then the Department initiates separation action . . . the
proposed provision would not improve military readiness or
the personnel policies of the Department.
Lt. Gen. Theodore Stroup, Jr., Army Deputy Chief of Staff for
Personnel has echoed these sentiments, writing,
It is my personal opinion that HIV-infected soldiers who
are physically fit for duty should be allowed to continue on
active duty.
I ask unanimous consent that a column I wrote on this subject for the
Los Angeles Times be printed at this point in the Record.
[From the Los Angeles Times, Feb. 6, 1996]
Congress Misses the ``Magic'' Show
military: a bill ousting the hiv-positive has nothing to do with
readiness; it's simply discrimination
(By Barbara Boxer)
Americans cheered last week as Earvin ``Magic'' Johnson
triumphantly returned to the Los Angeles Lakers. In just 27
minutes, he scored 19 points and dispelled any remaining
doubt about his ability to compete at the highest level.
To their credit, Magic's fans, coaches, teammates and even
his NBA opponents welcomed him back with open arms. Imagine
how absurd it would be if Congress, just as Magic
demonstrated his Hall of Fame talent, passed a law requiring
the NBA to fire all basketball players who have the HIV
virus.
This past week, Congress did something just that absurd.
A little-noticed provision of the annual military spending
bill requires the Pentagon to fire all soldiers, sailors and
Marines who test positive for the HIV virus, even if they
perform their duties as skillfully as Magic Johnson makes a
no-look pass. The military strongly objected to this
provision, but Congress did not care. The president has
called the new policy unfair, but because it is part of a
larger bill that includes urgently needed funding for our
troops in Bosnia, he will sign it into law.
Under current policy, military personnel with the HIV virus
are permitted to remain in the services as long as they are
able to perform their duties. If their health deteriorates,
the military initiates separation procedures and provides
disability benefits and continued health insurance coverage
for them and their dependents. So they can remain near health
care providers, military personnel with HIV are placed on
``worldwide nondeployable status,'' which means that they
cannot be sent on overseas missions. Soldiers with other
serious chronic illnesses, such as severe asthma, cancer and
diabetes are also nondeployable. In fact, only about 20
percent of the more than 5,000 nondeployable personnel are
infected with HIV.
The congressional authors of the new policy, led by Rep.
Robert K. Dornan of Orange County, argue that nondeployable
personnel degrade military readiness because they cannot be
sent overseas. However, their true motive appears to be less
lofty than protecting the readiness of our forces. The new
policy irrationally singles out military personnel with HIV.
If backers truly believe that nondeployable personnel harmed
readiness, why wouldn't they seek to oust soldiers with
diabetes and asthma? The only conceivable answer is that
readiness is not their real motivation. Their motivation is
discrimination, pure and simple.
Can anyone seriously contend that 1,059 HIV-positive
soldiers--less than 0.1 percent of the total force--can
meaningfully affect readiness? The Pentagon doesn't think so.
Its top personnel policy expert, Assistant Defense Secretary
Fred Pang, recently wrote that ``as long as these members can
perform their required duties, we see no prudent reason to
separate and replace them . . . The proposed provision would
not improve military readiness or the personnel policies of
the department.''
If Magic Johnson can run and leap with the best of them,
why can't a military clerk file with the best of them, or a
military driver drive with the best of them?
Perhaps the worst aspect of the new policy is its total
rejection of the compassion and camaraderie for which the
armed forces are rightfully praised. The United States of
America does not kick its soldiers when they are down. We
have a proud tradition of standing by those courageous enough
to dedicate their careers to the defense of our nation. That
tradition will end the day this new policy is enacted.
Military personnel discharged under the new policy will
lose their jobs even if they exhibit no signs of illness.
They will lose their right to disability benefits and their
spouses and children will lose their health care coverage.
This policy is worse than wrong, it is un-American.
The same day that President Clinton signs the bill that
includes this new policy, a bipartisan group of senators will
introduce legislation to repeal it. The president and our
senior military leaders support repeal. Despite their strong
support, the odds are unclear. But I am certain about one
thing: Those who vote ``no'' should take a good look in the
mirror.
disaster-related funds
Mr. McCAIN. Mr. President, my amendment will require that any
disaster-related funds earmarked in this bill for specific projects by
Federal agencies will be allocated according to the established,
priority-based procedures of those agencies.
This amendment would ensure that funds disaster-related funding
allocated by the Economic Development Administration, the U.S.
Department of Agriculture, the Department of Housing and Urban
Development, the Small Business Administration, and the National Park
Service, will be awarded based on need--and not according to
unauthorized earmarks.
This amendment will not reduce the funding in this bill, nor direct
these agencies to give preferential priority to any particular project,
State, or region of the country.
This proposal is entirely fair and equitable to all of the States and
communities that we represent. It plays no favorites, and offers no
advantages to individuals who may be well-intentioned in their desire
to receive funding for a local project. This amendment will simply
ensure that taxpayer funding made available under this appropriations
bill will be spent according to recognized priorities, as opposed to
congressionally mandated earmarks.
Let me discuss just one example of what I believe is an inappropriate
expenditure of taxpayer dollars that was added to the legislation
before us. Last week, an amendment was offered to this bill, and
adopted without a recorded vote, that would provide a total of $13.8
million for an unauthorized flood control project.
That amendment directs the Economic Development Administration [EDA]
to spend $10 million for flood control work at Devil's Lake Basin in
North Dakota; it also directs the U.S. Fish and Wildlife Service to
spend $3.8 million for related work at Devils Lake Basin. The
approximately $14 million in new taxpayer dollars for this project was
not requested by the agencies to be funded in this bill, nor was the
project subjected to any competitive evaluation process by the EDA or
HUD.
Mr. President, I don't think this is how the Senate should be doing
business. And I definitely don't think this is how we should be
spending taxpayer's dollars, at a time when we have scarce resources
with which to address many serious disaster needs across the country.
I believe earmarking funds for a specific project is unfair,
especially with respect to vital flood control programs. It clearly
undermines the competitive-review process that ensures that the most
urgent needs of distressed cities and townships all across America are
properly addressed.
While I'm sure that this situation in North Dakota is worthy of
attention, we have no way of knowing that it represents the most
serious need for Federal emergency assistance.
As most of my colleagues are aware, the Economic Development
Administration [EDA] provides grants for infrastructure programs and
community projects in economically distressed areas. In doing so, the
EDA is barraged with hundreds and hundreds more requests for Federal
aid than they can possibly fulfill. In fact, Mr. President, the EDA has
such a backlog on official funding requests that they stopped accepting
additional applications almost a year ago.
The EDA makes its funding awards through its regional offices on a
competitive, agency-review basis. Right now the EDA has almost 600
funding requests awaiting final decisions--600. These requests
represent the pleas of communities across the United States for help
from the Federal Government due to military base closures, job losses,
natural disaster, and declining local economies. Nationally, the EDA
has received over $320 million in community-based funding requests that
local officials and residents are anxiously awaiting an answer on.
Clearly, the EDA has an extremely difficult task in deciding which
projects to fund. They do so by considering factors such as an areas'
per capita income; unemployment rate; the local poverty level; the loss
of population in the community; and the general distress level of
residents in the area. There will always be more disappointed
applicants than there are
[[Page S2296]]
winners in a competitive system, but at least the EDA is utilizing a
set of economic criteria to ensure that the taxpayer dollars it
administers are scrutinized, and flow to the projects which represent
truly compelling needs.
Mr. President, we have before us a mammoth new appropriations bill
which presents an inviting target for Members to evade this competitive
system, and bypass its reasonable guidelines for the expenditure of
taxpayer dollars. The earmark added to this bill effectively sweeps
aside higher priority requests, and arbitrarily puts one unauthorized
project at the head of the line. Instead of a community receiving flood
control assistance because it's needs are urgent and meritorious, this
one project will prevail over hundreds of others because it secured
political support. Well intentioned support, I'm sure, but unfair
nonetheless.
As I have said many times on this floor, Mr. President, during one of
my many unsuccessful attempts to curb the Congress's seemingly
unquenchable thirst for more spending, my criticisms about this
specific project is about process. I in no way contend that the Devils
Lake Basin flood control program is unnecessary. I fully recognize that
the Senators from North Dakota are affirmatively responding to requests
for assistance from some of their constituents.
What I do contend is that the Senate should not respond to such
requests--requests that all 100 Members of this body receive on a daily
basis--in a manner that circumvents a thorough, merit-based process,
and substitutes quick-and-easy earmarks in yet another emergency
spending bill.
While I am opposed to the Senate again condoning what I feel is an
indefensible process, let me state that I have not offered this
amendment out of any respect for endless bureaucratic analysis; I offer
it because there are dire problems facing our communities and the
taxpayers who support them, and it is wrong to subvert their efforts to
play by the rules when they are in need of Federal disaster aid.
Again, I don't question the possible benefits of the Devil's Lake
Basin project. I do question the wisdom in the Senate boosting it to
the head of the line for funding from the Economic Development
Administration, when there are 84 other project's among North Dakota's
neighboring States that are also anxiously awaiting funding. Unlike
Devil's Lake Basin, however, these communities are properly competing
for funding from the EDA for their disaster needs.
I have been advised by the EDA, Mr. President, that they did not
request funding for the Devil's Lake Basin project, nor have the
project's sponsors officially filed a request for funds with the EDA's
Denver Regional Office, which allocates funding to North Dakota and
nine other Western and Midwestern States. Therefore, dozens of
communities in States such as Colorado, Kansas, Missouri, South Dakota,
Iowa, Wyoming, and Utah will continue to have their needs go
unaddressed by EDA, while $10 million in new moneys they might have
competed for will instead be diverted to a single project.
I am not talking about mere pennies, either. The total earmark for
the Devils Lake Basin project in this bill is larger than the entire
expected budget of the EDA's Denver Regional Office for fiscal year
1996. This one project will receive almost $13 million in Federal aid,
while 84 communities in the above 9 States will have to compete with
each other for the $11 million that the Denver office is anticipating
for this year. Without a doubt, a number of these requests are
emergency projects.
Regrettably, many communities who have developed meritorious
proposals, and are willing to play by the rules by competing for scarce
taxpayer dollars, will never get a dime from the EDA.
Obviously, Mr. President, every Senator in this body is interested in
receiving Federal funds for infrastructure and disaster aid for their
State. I'm certainly no exception. Arizona has over $6 million in
requests pending with the EDA, some of which have been pending for
several years. For Arizona to even have a chance at having one project
funded, communities in my State must compete with 115 requests from
seven other States in Region 7, which includes California, Idaho,
Alaska, and Hawaii. These States currently have over $100 million in
requests pending at the EDA. Most of these will be rejected due to the
intense competition, yet Devils Lake Basin is guaranteed $10 million
without having to face any competition.
The $3.8 million earmark for the Devils Lake Basin project in this
bill from the Fish and Wildlife Service is similar in the respect that
it was not officially requested by the agency, in its submission to the
Appropriations Committee for inclusion in this bill. There are other
earmarks in the bill, as well.
The amendment I am offering is very simple, and entirely fair to
every Member of this body, and every State in our Nation. It simply
says that funding provided in this bill to the EDA, the Fish and
Wildlife Service, HUD, and other agencies will be awarded according to
the established prioritization process of those agencies.
Mr. KENNEDY. Mr. President, I rise to express my deep concern about
the title VIII of the pending appropriations bill, the so-called Prison
Litigation Reform Act [PLRA].
Its proponents say that the PLRA is merely an attempt to reduce
frivolous prisoner litigation over trivial matters. In reality, the
PLRA is a far-reaching effort to strip Federal courts of the authority
to remedy unconstitutional prison conditions. The PLRA is itself
patently unconstitutional, and a dangerous legislative incursion into
the work of the judicial branch.
In my view, the effort to enact this proposal as part of an omnibus
appropriations bill is inappropriate. Although a version of the PLRA
was introduced as a free-standing bill and referred to the Judiciary
Committee, it was never the subject of a committee mark-up, and there
is no Judiciary Committee report explaining the proposal. The PLRA was
the subject of a single hearing in the Judiciary Committee, hardly the
type of thorough review that a measure of this scope deserves.
At the hearing, Associate Attorney General John Schmidt expressed
serious concerns about the feasibility and consequences of the PLRA.
While Mr. Schmidt did not take issue with provisions in the PLRA that
merely seek to curb frivolous prison litigation, he noted that other
aspects of the proposal would radically and unwisely curtail the power
of the Federal courts to remedy constitutional and statutory violations
in prisons, jails, and juvenile detention facilities.
I understand that my colleague from Illinois intends to include
relevant excerpts of Mr. Schmidt's testimony in the Record, but I will
just highlight several of the objections that he raised, all of which I
share. Mr. Schmidt observed that:
The effort to terminate all existing consent decrees
``raise[s] serious constitutional problems'' under doctrines
reaffirmed by the Supreme Court as recently as this year;
Provisions limiting the power of federal courts to issue
relief in prison conditions cases would ``create a very
substantial impediment to the settlement of prison conditions
suits--even if all interested parties are fully satisfied
with the proposed resolution.'' ``This would result in
litigation that no one wants . . . and could require judicial
resolution of matters that would otherwise be more promptly
resolved by the parties in a mutually agreeable manner'';
The proposal to terminate relief two years after issuance
is misguided because, in those cases where the problems have
not been remedied, the ``Justice Department and other
Plaintiffs would have to refile cases in order to achieve the
objectives of the original order, and defendants would have
the burden of responding to these new suits. Both for reasons
of judicial economy, and for the effective protection of
constitutional rights, we should aim at the resolution of
disputes without unnecessary litigation and periodic
disruption of ongoing remedial efforts.''
All of these problems remain in the legislative language before us
today.
In addition, I call to the attention of my colleagues an assessment
prepared by the Administrative Office of the United States Courts dated
June 21, 1995. The Office found that the ``potential annual resource
costs of [the bill] could be more than $239 million and 2,096
positions, of which at least 280 would be judicial officers--Article
III judges and/or magistrate judges.'' The bill appropriates no funds
to the Federal judiciary to offset this enormous fiscal impact.
Finally, I note with great concern that the bill would set a
dangerous precedent for stripping the Federal courts of the ability to
safeguard the
[[Page S2297]]
civil rights of powerless and disadvantaged groups.
I do not intend to offer an amendment to this bill, because it is
clear that a majority of the Senate would not vote to strike the
provision, and I do not believe the Senate is positioned to consider
detailed improvements to the PLRA during debate on this omnibus
appropriations bill. But the abbreviated nature of the legislative
process should not suggest that the proposal is noncontroversial in
Congress.
It is my hope that after the President vetoes this bill, as I expect
he will, that the administration seek to negotiate changes in the PLRA
that remedy the profound constitutional, fiscal, and practical problems
outlined by Mr. Schmidt and other experts.
I ask unanimous consent that a copy of a letter sent by myself and
four other Senators to the Attorney General on this subject be printed
in the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
U.S. Senate,
Committee on the Judiciary,
Washington, DC, February 2, 1996.
Hon. Janet Reno,
Attorney General of the United States, Department of Justice,
Washington, DC.
Dear Madam Attorney General: We write to express our
concern about aspects of the Prison Litigation Reform Act
(PLRA), which has passed Congress as title VIII of the
Commerce, State, and Justice Departments Appropriations bill.
President Clinton vetoed this appropriations bill on December
18, but it is our understanding that issues such as the PLRA
may be the subject of negotiations between the Administration
and members of the Appropriations Committees in the coming
weeks.
We do not take issue with provisions in the PLRA that
merely seek to curb frivolous prison litigation. But in other
respects, the PLRA is far reaching legislation that would
unwisely reduce the power of the federal courts to remedy
constitutional and statutory violations in prisons, jails,
and juvenile detention facilities.
PLRA was considered as one of many issues on the
appropriations bill. For this reason, PLRA passed on a voice
vote following relatively brief debate. But the manner in
which the bill passed the Senate should not suggest to you
that the Senate considers the proposal to be entirely
noncontroversial.
In particular, we share some of the concerns that Associate
Attorney General John R. Schmidt raised in his testimony
before the Senate Judiciary Committee on July 27, 1995. Mr.
Schmidt noted that provisions limiting the power of federal
courts to issue relief in prison conditions cases would
``create a very substantial impediment to the settlement of
prison conditions suits--even if all interested parties are
fully satisifed with the proposed resolution.'' ``This would
result in litigation that no one wants . . . and could
require judicial resolution of matters that would otherwise
be more promptly resolved by the parties in a mutually
agreeable manner.''
Mr. Schmidt also pointed out that the proposal to terminate
relief two years after issuance is troublesome because, in
those cases where the problems have not been remedied, the
``Justice Department and other Plaintiffs would have to
refile cases in order to achieve the objectives of the
original order, and defendants would have the burden of
responding to these new suits. Both for reasons of judicial
economy, and for the effective protection of constitutional
rights, we should aim at the resolution of disputes without
unnecessary litigation and periodic disruption of ongoing
remedial efforts.''
These problems have not been remedied by the changes made
to the proposal since Mr. Schmidt's testimony.
We also call to your attention an assessment prepared by
the Administrative Office of the United States Courts dated
June 21, 1995. The Office found that the ``potential annual
resource costs of [the bill] could be more than $239 million
and 2,096 positions, of which at least 280 would be judicial
officers (Article III judges and/or magistrate judges).'' The
bill appropriates no funds to the federal judiciary to offset
this enormous fiscal impact.
We suggest that the Administration negotiate changes in the
PLRA that remedy the serious fiscal and practical problems
outlined by Mr. Schmidt and other experts.
Thank you for your attention to this important matter.
Sincerely,
Fred Thompson.
Jim Jeffords.
Ted Kennedy.
Joe Biden.
Jeff Bingaman.
Mr. SIMON. Mr. President, I join Senator Kennedy in raising my strong
concerns about the Prison Litigation Reform Act, a section of S. 1594.
In attempting to curtail frivolous prisoner lawsuits, this legislation
goes much too far, and instead may make it impossible for the Federal
courts to remedy constitutional and statutory violations in prisons,
jails, and juvenile detention facilities. No doubt there are prisoners
who bring baseless suits that deserve to be thrown out of court. But
unfortunately, in many instances there are legitimate claims that
deserve to be addressed. History is replete with examples of egregious
violations of prisoners' rights. These cases reveal abuses and inhumane
treatment which cannot be justified no matter what the crime. In
seeking to curtail frivolous lawsuits, we cannot deprive individuals of
their basic civil rights. We must find the proper balance.
My colleague from Illinois, Associate U.S. Attorney General John
Schmidt, testified before the Senate Judiciary Committee on July 27,
1995, and raised numerous concerns about this legislation. I have
included a copy of his comments for my colleagues to review. I should
also note that at the same hearing, former Attorney General Barr of the
Bush administration, agreed with the assertion that there are
constitutional problems with the bill as drafted which have not yet
been addressed.
As outlined in Mr. Schmidt's testimony, the bill has so many problems
that I cannot list them all here. So let me describe just a few. First,
the bill severely limits the options available to States and courts in
remedying legitimate complaints. For example, the bill makes it
virtually impossible for States to enter into consent decrees even when
the consent decree may well be in the State's best interest for both
fiscal and policy reasons. Similarly, this legislation, by creating new
and burdensome standards of review, would effectively prohibit courts
from placing population caps on prisons. Prison overcrowding obviously
creates a serious threat to the general public, as well as to prison
staffs and the inmates themselves. We must not exacerbate this problem.
Furthermore, the bill places undue burdens on States and courts by
requiring that relief be terminated 2 years after issuance even in
cases where the problems have not been remedied
I am very discouraged that this legislation was considered as one of
many issues on an appropriations bill. Legislation with such far
reaching implications certainly deserves to be thoroughly examined by
the committee of jurisdiction and not passed as a rider to an
appropriations bill. I urge the White House to carefully review these
provisions and work with Congress to make the necessary changes to
remedy the myriad of constitutional and practical problems found in
this far-reaching legislation.
I ask unanimous consent that the relevant portions of Mr. Schmidt's
testimony be printed in the Record.
There being no objection, the testimony was ordered to be printed in
the Record, as follows:
Testimony of John Schmidt
reforms relating to prisoner litigation
The Department also supports improvements of the criminal
justice system through the implementation of other reforms.
Several pending bills under consideration by the Senate
contain three sets of reforms that are intended to curb
abuses or perceived excesses in prisoner litigation or prison
conditions suits.
The first set of provisions appears in title II of H.R. 667
as passed by the House of Representatives, and in Sec. 103 of
S. 3. These provisions strengthen the requirement of
exhaustion of administrative remedies under the Civil Rights
of Institutionalized Persons Act (CRIPA) for state prisoner
suits, and adopt other safeguards against abusive prisoner
litigation. We have endorsed these reforms in an earlier
communication to Congress.\1\ We also recommend that parallel
provisions be adopted to required federal prisoners to
exhaust administrative remedies prior to commencing
litigation.
---------------------------------------------------------------------------
\1\ Letter of Assistant General Shalla F. Anthony to
Honorable Henry J. Hyde concerning H.R. 3, at 17-19 (January
26, 1995).
---------------------------------------------------------------------------
The second set of provisions appears in a new bill, S. 866,
which we have not previously commented on. The provisions in
this bill have some overlap with those in Sec. 103 of S. 3
and title II of H.R. 667, but also incorporate a number of
new proposals. We support the objectives of S. 866 and many
of the specific provisions in the bill. In some instances, we
have recommendations for alternative formulations that could
realize the bill's objectives more effectively.
The third set of provisions appears in S. 400, and in title
III of H.R. 667 as passed by the House of Representatives,
the ``Stop Turning Out Prisoners'' (STOP) proposal. The
Violent Crime Control and Law Enforcement Act of 1994 enacted
18 U.S.C. 3626, which limits remedies in prison conditions
litigation. The STOP proposal would amend this section to
impose various additional conditions and restrictions. We
support the
[[Page S2298]]
basic objective of this legislation, including particularly
the principle that judicial caps on prison populations must
be used only as a last resort when no other remedy is
available for a constitutional violation, although we have
constitutional or policy concerns about a few of its specific
provisions.
A. The Provisions in Sec. 103 of S. 3 and H.R. 667 title II
As noted above, we support the enactment of this set of
provisions.
The Civil Rights of Institutionalized Person Act (42 U.S.C.
Sec. 1997e) currently authorizes federal courts to suspend
Sec. 1983 suits by prisoners for up to 180 days in order to
require exhaustion of administrative remedies. Section
103(a)-(b), (e) of S. 3 strengthens the administrative
exhaustion rules in this context--and brings it more into
line with administrative exhaustion rules that apply in other
contexts--by generally prohibiting prisoner Sec. 1983 suits
until administrative remedies are exhausted.
As noted above, we recommend that this proposal also
incorporate a rule requiring federal prisoners to exhaust
administrative remedies prior to commencing litigation. A
reform of this type is as desirable for federal prisoners as
the corresponding strengthening of the exhaustion provision
for state prisoners that now appears in section 103 of S. 3.
We would be pleased to work with interested members of
Congress in formulating such a provision.
Section 103(c) of S. 3 directs a court to dismiss a
prisoner Sec. 1983 suit if the court is satisfied that the
action fails to state a claim upon which relief can be
granted or is frivolous or malicious. A rule of this type is
desirable to minimize the burden on states of responding
unnecessarily to prisoner suits that lack merit and are
sometimes brought for purposes of harassment or recreation.
Section 103(d) of S. 3 deletes from the minimum standards
for prison grievance systems in 42 U.S.C. 1997e(b)(2) the
requirement of an advisory role for employees and inmates
(at the most decentralized level as is reasonably
possible) in the formulation, implementation, and
operation of the system. This removes the condition that
has been the greatest impediment in the past to the
willingness of state and local jurisdictions to seek
certification for their grievance systems.
Section 103(f) of S. 3 strengthens safeguards against and
sanctions for false allegations of poverty by prisoners who
seek to proceed in forma pauperis. Subsection (d) of 28
U.S.C. 1915 currently reads as follows: ``The court may
request an attorney to represent any such person unable to
employ counsel and may dismiss the case if the allegation of
poverty is untrue, or if satisfied that the action is
frivolous or malicious.'' Section 103(f)(1) of S. 3 amends
that subsection to read as follows: ``The court may request
an attorney to represent any such person unable to employ
counsel and shall at any time dismiss the case if the
allegation of poverty is untrue, or if satisfied that the
action fails to state a claim upon which relief may be
granted or is frivolous or malicious even if partial filing
fees have been imposed by the court.''
Section 103(f)(2) of S. 3 adds a new subsection (f) to 28
U.S.C. 1915 which states that an affidavit of indigency by a
prisoner shall include a statement of all assets the prisoner
possesses. The new subsection further directs the court to
make inquiry of the correctional institution in which the
prisoner is incarcerated for information available to that
institution relating to the extent of the prisoner's assets.
This is a reasonable precaution. The new subsection concludes
by stating that the court ``shall require full or partial
payment of filing fees according to the prisoner's ability to
pay.'' We would not understand this language as limiting the
court's authority to require payment by the prisoner in
installments, up to the full amount of filing fees and other
applicable costs, where the prisoner lacks the means to make
full payment at once.
B. S. 866
Section 2 in S. 866 amends the in forma pauperis statute,
28 U.S.C. 1915, in the following manner: (1) The authority to
allow a suit without prepayment of fees--as opposed to
costs--in subsection (a) is deleted. (2) A prisoner bringing
a suit would have to submit a statement of his prison account
balance for the preceding six months. (3) A prisoner would be
liable in all cases to pay the full amount of a filing fee.
An initial partial fee of 20% of the average monthly deposits
to or average monthly balance in the prisoner's account would
be required, and thereafter the prisoner would be required to
make monthly payments of 20% of the preceding month's income
credited to the account, with the agency having custody of
the prisoner forwarding such payments whenever the amount in
the account exceeds $10. However, a prisoner would not be
barred from bringing any action because of inability to pay
the initial partial fee. (4) If a judgment against a prisoner
includes the payment of costs, the prisoner would be
required to pay the full amount of costs ordered, in the
same manner provided for the payment of filing fees by the
amendments.
In essence, the point of these amendments is to ensure that
prisoners will be fully liable for filing fees and costs in
all cases, subject to the proviso that prisoners will not be
barred from suing because of this liability if they are
actually unable to pay. We support this reform in light of
the frequency with which prisoners file frivolous and
harassing suits, and the general absence of other
disincentives to doing so.
However, the complicated standards and detailed numerical
prescriptions in this section are not necessary to achieve
this objective. It would be adequate to provide simply that
prisoners are fully liable for fees and costs, that their
applications must be accompanied by certified prison account
information, and that funds from their accounts are to be
forwarded periodically when the balance exceeds a specified
amount (such as $10) until the liability is discharged. We
would be pleased to work with the sponsors to refine this
proposal.
In addition to these amendments relating to fees and costs,
Sec. 2 of S. 866 strengthens 28 U.S.C. 1915(d) to provide
that the court shall dismiss the case at any time if the
allegation of poverty is untrue or if the action is frivolous
or malicious or fails to state a claim. This is substantially
the same as provisions included in Sec. 103 of S. 3 and title
II of H.R. 667, which we support.
Section 3 of S. 866 essentially directs courts to review as
promptly as possible suits by prisoners against governmental
entities or their officers or employees, and to dismiss such
suits if the complaint fails to state a claim or seeks
monetary relief from an immune defendant. This is a desirable
provision that could avoid some of the burden on states and
local governments of responding to nonmeritorious prisoner
suits.
Section 6 provides that a court may order revocation of
good time credits for federal prisoners if (1) the court
finds that the prisoner filed a malicious or harassing civil
claim or testified falsely or otherwise knowingly presented
false evidence or information to the court, or (2) the
Attorney General determines that one of these circumstances
has occurred and recommends revocation of good time credit to
the court.
We support this reform in principle. Engaging in malicious
and harassing litigation, and committing perjury or its
equivalent, are common forms of misconduct by prisoners. Like
other prisoner misconduct, this misconduct can appropriately
be punished by denial of good time credits.
However, the procedures specified in section 6 are
inconsistent with the normal approach to denial of good time
credits under 18 U.S.C. 3624. Singling out one form of
misconduct for discretionary judicial decisions concerning
denial of good time credits--where all other decisions of
this type are made by the Justice Department--would work
against consistency in prison disciplinary policies, and
would make it difficult or impossible to coordinate sanctions
imposed for this type of misconduct with those imposed for
other disciplinary violations by a prisoner.
We accordingly recommend that Sec. 6 of S. 866 be revised
to provide that (1) a court may, and on motion of an adverse
party shall, make a determination whether a circumstance
specified in the section has occurred (i.e., a malicious or
harassing claim or knowing falsehood), (2) the court's
determination that such a circumstance occurred shall be
forwarded to the Attorney General, and (3) on receipt of such
a determination, the Attorney General shall have the
authority to deny good time credits to the prisoner. We would
be pleased to work with the sponsors to refine this proposal.
Section 7 of S. 866 strengthens the requirement of
exhaustion of administrative remedies under CRIPA in prisoner
suits. It is substantially the same as part of Sec. 103 of S.
3, which we support.\2\
---------------------------------------------------------------------------
\2\ However, there is a typographic error in line 22 of page
8 of the bill. The words ``and exhausted'' in this line
should be ``are exhausted.''
---------------------------------------------------------------------------
C. The STOP Provisions
As noted above, we support the basic objective of the STOP
proposal, including particularly the principle that
population caps must be only a ``last resort'' measure.
Responses to unconstitutional prison conditions must be
designed and implemented in the manner that is most
consistent with public safety. Incarcerated criminals should
not enjoy opportunities for early release, and the system's
general capacity to provide adequate detention and
correctional space should not be impaired, where any feasible
means exist for avoiding such a result.
It is not necessary that prisons be comfortable or
pleasant; the normal distresses and hardships of
incarceration are the just consequences of the offenders' own
conduct. However, it is necessary to recognize that there is
nevertheless a need for effective safeguards against inhuman
conditions in prisons and other facilities. The
constitutional provision enforced most frequently in prison
cases is the Eighth Amendment's prohibition of cruel and
unusual punishment. Among the conditions that have been found
to violate the Eighth Amendment are excessive violence,
whether inflicted by guards or by inmates under the
supervision of indifferent guards, preventable rape,
deliberate indifference to serious medical needs, and lack of
sanitation that jeopardizes health. Prison crowding may also
be a contributing element in a constitutional violation. For
example, when the number of inmates at a prison becomes so
large that sick inmates cannot be treated by a physician in a
timely manner, or when crowded conditions lead to a breakdown
in security and contribute to violence against inmates, the
crowding can be addressed as a contributing cause of a
constitutional violation. See generally Wilson v. Seiter, 501
U.S. 294 (1991); Rhodes v. Chapman, 452 U.S. 337 (1981).
[[Page S2299]]
In considering reforms, it is essential to remember that
inmates do suffer unconstitutional conditions of confinement,
and ultimately must retain access to meaningful redress when
such violations occur. While Congress may validly enact
legislative directions and guidance concerning the nature and
extent of prison conditions remedies. It must also take care
to ensure that any measures adopted do not deprive prisoners
of effective remedies for real constitutional wrongs.
With this much background, I will now turn to the specific
provisions of the STOP legislation.
The STOP provisions of S. 400 and title III of H.R. 667--in
proposed 18 U.S.C. 3626(a)--provide that prospective relief
in prison conditions suits small extend no further than
necessary to remove the conditions causing the deprivation of
federal rights of individual plaintiffs, that such relief
must be narrowly drawn and the least intrusive means of
remedying the derivation, and that substantial weight must be
given to any adverse impact on public safety or criminal
justice system operations in determining intrusiveness. They
further provide that relief reducing or limiting prison
population is not allowed unless crowding is the primary
cause of the deprivation of a federal right and no other
relief will remedy that deprivation.
Proposed 18 U.S.C. 3626(b) in the STOP provisions provides
that any prospective relief in a prison conditions action
shall automatically terminate after two years (running from
the time the federal right violation is found or enactment of
the STOP legislation), and that such relief shall be
immediately terminated if it was approved or granted in the
absence of a judicial finding that prison conditions violated
a federal right.
Proposed 18 U.S.C. 3626(c) in the STOP provisions requires
prompt judicial decisions of motions to modify or terminate
prospective relief in prison conditions suits, with automatic
stays of such relief 30 days after a motion is filed under 18
U.S.C. 3626(b), and after 180 days in any other case.
Proposed 18 U.S.C. 3626(d) in the STOP provisions confers
standing to oppose relief that reduces or limits prison
population on any federal, state, of local official or unit
of government whose jurisdiction or function includes the
prosecution or custody of persons in a prison subject to
such relief, or who otherwise may be affected by such
relief.
Proposed 18 U.S.C. 3626(e) in the STOP provisions prohibits
the use of masters in prison conditions suits in federal
court, except for use of magistrates to make proposed
findings concerning complicated factual issues. Proposed 18
U.S.C. 3626(f) in the STOP provisions imposes certain
limitations on awards of attorney's fees in prison conditions
suits under federal civil rights laws.
Finally, the STOP provisions provide that the new version
of 18 U.S.C. 3626 shall apply to all relief regardless of
whether it was originally granted or approved before, on, or
after its enactment.
The bills leave unresolved certain interpretive questions.
While the revised section contains some references to
deprivation of federal rights, several parts of the section
are not explicitly limited in this manner, and might be
understood as limiting relief based on state law claims in
prison conditions suits in state courts. The intent of the
proposal, however, is more plausibly limited to setting
standards for relief which is based on claimed violations of
federal rights or imposed by federal court orders. If so,
this point should be made clearly in relation to all parts of
the proposal.
A second interpretive question is whether the proposed
revision of 18 U.S.C. 3626 affects prison conditions suits in
both federal and state court, or just suits in federal court.
In contrast to the current version of 18 U.S.C. 3626, the
proposed revision--except for the new provision restricting
the use of masters--is not, by its terms, limited to federal
court proceedings. Hence, most parts of the revision appear
to be intended to apply to both federal and state court
suits, and would probably be so construed by the courts. To
avoid extensive litigation over an issue that goes to the
basic scope of the proposal, this question should be clearly
resolved one way or the other by the text of the proposal.
The analysis of constitutional issues raised by this
proposal must be mindful of certain fundamental principles.
Congress possesses significant authority over the remedies
available in the lower federal courts, subject to the
limitations of Article III, and can eliminate the
jurisdiction of those courts altogether. In the latter
circumstance, state courts (and the U.S. Supreme Court on
review) would remain available to provide any necessary
constitutional remedies excluded from the jurisdiction of the
inferior federal courts. Congress also has authority to
impose requirements that govern state courts when they
exercise concurrent jurisdiction over federal claims, see
Fielder v. Casey, 487 U.S. 131, 141 (1988), but if Congress
purports to bar both federal and state courts from issuing
remedies necessary to redress colorable constitutional
violations, such legislation may violate due process. See,
e.g., Webster v. Dob, 486 U.S. 592, 603 (1988); Bowen v.
Michigan Academy of Family Physicians, 476 U.S. 667, 681
n.12 (1986); Bartlett v. Bowman, 816 F.2d 695, 703-07
(D.C. Cir. 1987). We therefore examine the proposal's
various remedial restrictions from that perspective.
Proposed 18 U.S.C. 3626(a)(1) in the proposal goes further
than the current statute in ensuring that any relief ordered
is narrowly tailored. However, since it permits a court to
order the ``relief . . . necessary to remove the conditions
that are causing the deprivation of . . . Federal rights,''
this aspect of the proposal appears to be constitutionally
unobjectionable, even if it constrains both state and federal
courts.
Proposed 18 U.S.C. 3626(a)(2) bars relief that reduces or
limits prison population unless crowding is the primary cause
of the deprivation of a federal right and no other relief
will remedy the deprivation. We strongly support the
principle that measures limiting prison population should be
the last resort in prison conditions remedies. Remedies must
be carefully tailored so as to avoid or keep to an absolute
minimum any resulting costs to public safety. Measures that
result in the early release of incarcerated criminals, or
impair the system's general capacity to provide adequate
detention and correctional space, must be avoided when any
other feasible means exist for remedying constitutional
violations.
Certain features of the formulation of proposed 18 U.S.C.
3626(a)(2) however, raise constitutional concerns. In certain
circumstances, prison overcrowding may result in a violation
of the Eighth Amendment, see Rhodes v. Chapman, 452 U.S. 337
(1981). Hence, assuming that this provision constrains both
state and federal courts, it would be exposed to
constitutional challenge as precluding adequate remedy for a
constitutional violation in certain circumstances. For
example, severe safety hazards or lack of basic sanitation
might be the primary cause of unconstitutional conditions in
a facility, yet extreme overcrowding might be a substitute
and independent, but secondary, cause of such conditions.
Thus, this provision could foreclose any relief that reduces
or limits prison population through a civil action in such a
case, even if no other form of relief would rectify the
unconstitutional condition of overcrowding.
This problem might be avoided through an interpretation of
the notion of a covered ``civil action'' under the revised
section as not including habeas corpus proceedings in state
or federal court which are brought to obtain relief from
unconstitutional conditions of confinement. See e.g., Preiser
v. Rodriguez, 411 U.S. 475, 499 (1973). However, this depends
on an uncertain construction of the proposed statute, and the
proposal's objectives could be undermined if the extent of
remedial authority depended on the form of the action (habeas
proceedings vs. regular civil action). Since the relief
available in habeas proceedings in this context could be
limited to release from custody, reliance on such proceedings
as an alternative could carry heavy costs in relation to this
proposal's evident objective of limiting the release of
prisoners as a remedy for unconstitutional prison
conditions.
A more satisfactory and certain resolution of the problem
would be to delete the requirement in proposed 18 U.S.C.
3626(a)(2) that crowding must be the primary cause of the
deprivation of a federal right. This would avoid potential
constitutional infirmity while preserving the requirement
that prison caps and the like can only be used where no other
remedy would work.
Proposed 18 U.S.C. 3626(b)--which automatically terminates
prospective relief after two years, and provides for the
immediate termination of prospective relief approved without
a judicial finding of violation of a federal right--raises
additional constitutional concerns. It is possible that
prison conditions held unconstitutional by a court may
persist for more than two years after the court has found the
violation, and while the court order directing prospective
relief is still outstanding. Hence, this provision might be
challenged on constitutional grounds as foreclosing adequate
judicial relief for a continuing constitutional violation.
However, we believe that this provision is constitutionally
sustainable against such a challenge because it would not cut
off all alternative forms of judicial relief, even if it
applies both to state court and federal court suits. The
possibility of construing the statute as not precluding
relief through habeas corpus proceedings has been noted above
(as has the possibility that habeas may provide only limited
relief), More importantly, the section does not appear to
foreclose an aggrieved prisoner from instituting a new and
separate civil action based on constitutional violations that
persisted after the automatic termination of the prior
relief.
A more pointed constitutional concern arises from the
potential application of the restrictions of proposed 18
U.S.C. 3626(b) to terminate uncompleted prospective relief
ordered in judgments that became final prior to the
legislation's enactment. The application of these
restrictions to such relief raises constitutional concerns
under the Supreme Court's recent decision in Plauty,
Spendthrift Farm, Inc., 115 S.Ct. 1447 (1995). The Court held
in that case that legislation which retroactively interferes
with final judgments can constitute an unconstitutional
encroachment on judicial authority. It is uncertain whether
Plaut's holding applies with full force to the prospective,
long-term relief that is involved in prison conditions cases.
However, if the decision does fully apply in this context,
the application of proposed 18 U.S.C. 3626(b) to orders in
pre-enactment final judgments would raise serious
constitutional problems.
While we believe that most features of that STOP proposal
are constitutionally sustainable, at least in prospective
effect, we find two aspects of the legislation to be
particularly problematic for policy reasons.
[[Page S2300]]
First, the proposal apparently limits prospective relief to
cases involving a judicial finding of a violation of a
federal right. This could create a very substantial
impediment to the settlement of prison conditions suits--
even, if all interested parties are fully satisfied with the
proposed resolution--because the defendants might effectively
have to concede that they have caused or tolerated
unconstitutional conditions in their facilities in order to
secure judicial approval of the settlement. This would result
in litigation that no one wants, if the defendants were
unwilling to make such a damaging admission, and could
require judicial resolution of matters that would otherwise
be more promptly resolved by the parties in a mutually
agreeable manner.
Second, we are concerned about the provision that would
automatically terminate any prospective relief after two
years. In some cases the unconstitutional conditions on which
relief is premised will not be corrected within this
timeframe, resulting in a need for further prison conditions
litigation. The Justice Department and other plaintiffs,
would have to refile cases in order to achieve the objectives
of the original order, and defendants would have the burden
of responding to these new suits. Both for reasons of
judicial economy, and for the effective protection of
constitutional rights, we should aim at the resolution of
disputes without unnecessary litigation and periodic
disruptions of ongoing remedial efforts. This point applies
with particular force where the new litigation will revisit
matters that have already been adjudicated and resolved in an
earlier judgment.
Existing law, in 18 U.S.C. 3626(c), already requires that
any order of consent decree seeking to remedy an Eighth
Amendment violation be reopened at the behest of a defendant
for recommended modification at a minimum of two year
intervals. This provision could be strengthened to give
eligible intervenors under the STOP proposal, including
prosecutors, the same right to periodic reconsideration of
prison conditions orders and consent decrees. This would be a
more reasonable approach to guarding against the unnecessary
continuation of orders than imposition of an unqualified,
automatic time limit on all orders of this type.
Mr. HATFIELD. Mr. President, for the better part of an hour we have
notified Members through the communication system that we are ready to
go to third reading and finalize, first of all, the managers' package--
for the better part of an hour. And I think it has now reached a
reasonable period of time to bring this to a halt.
So I want to say that at 5:05--in 15 minutes--I will ask for the
lifting of the quorum and the Chair will put the question. So that will
mean we have waited for an hour and 10 minutes for anyone to exercise
their parliamentary right. I think that is a fairly good test of
knowing if anyone is interested in doing so. Then we will move to the
third reading following the adoption of the managers' package.
Mr. FAIRCLOTH addressed the Chair.
The PRESIDING OFFICER. The Senator from North Carolina.
Mr. FAIRCLOTH. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator is recognized.
____________________