Congressional Record, Volume 142 Issue 39 (Wednesday, March 20, 1996)

[Congressional Record Volume 142, Number 39 (Wednesday, March 20, 1996)]
[Senate]
[Pages S2422-S2431]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. JOHNSTON:
S. 1627. A bill to designate the visitor center at Jean Lafitte
National Historical Park in New Orleans, Louisiana as the ``Laura C.
Hudson Visitor Center''; to the Committee on Energy and Natural
Resources.

the laura c. hudson visitor center designation act of 1996

Mr. JOHNSTON. Mr. President, I am pleased today to introduce a
measure to designate the visitor center at 419 Rue Decatur in New
Orleans, LA, as the ``Laura C. Hudson Visitor Center.''
For almost 24 years I have been privileged to serve in the U.S.
Senate. For some 20 of those years I have been blessed with the able
assistance of Laura Hudson, who completed her Senate service last
August, as my legislative director and indispensable right hand.
In so many ways, Laura personifies the best tradition of Senate
service--beginning in one capacity and growing into so many more. The
young history postgraduate, who took a legislative-

[[Page S2423]]

correspondent position in my office in 1975, quickly grew beyond that
and has been my invaluable counsel on a variety of legislative
challenges over the years.
There are parks and preservation projects, in Louisiana and beyond
which exist solely because of the personal commitment and legislative
skill of Laura Hudson, whole regions of the globe, such as Micronesia,
routinely neglected by many in the Congress, receive a respect and
recognition in Washington due heavily to Laura's devotion. That
component closeup program, which brings hundreds of students and
teachers each year from the former trust territories of Micronesia, is
but one example of Laura's passion.
Moreover, I am convinced that the relationship between our country
and many of the developing and emerging economies, such as China,
Vietnam, and Indonesia, profit in immeasurable ways from the
understanding and leadership of staff persons such as Laura.
This is a woman, Mr. President, who has forsaken many opportunities
in the private sector because of a deep belief in the merits of public
service, and a belief in the simple tenet that she could make a
difference. More often than we acknowledge, it is the Laura Hudsons who
made a qualitative difference in our daily work product. In honor of
her unparalleled contributions, I am introducing this legislation
today.
I know that Laura will continue to contribute, as only she can, to
public policy. But I will miss her in a way immediate and direct, as
will so many of her longtime colleagues in the Senate. But I know they
join me in expressing appreciation and best wishes as Laura enters an
exciting new chapter of her life.
I ask unanimous consent that a copy of the bill appear in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1627

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

SECTION 1. LAURA C. HUDSON VISITOR CENTER.

The visitor center at Jean Lafitte National Historical
Park, located at 419 Rue Decatur in New Orleans, Louisiana,
is hereby designated as the ``Laura C. Hudson Visitor
Center.''

SEC. 2. LEGAL REFERENCES.

Any reference in any law, regulation, paper, record, map,
or any other document of the United States to the visitor
center referred to in subsection (a) shall be deemed to be a
reference to the ``Laura C. Hudson Visitor Center''.
______

By Mr. BROWN (for himself, Mr. Thomas, Mr. Faircloth, Mr.
Thurmond, and Mr. Helms):
S. 1628. A bill to amend title 17, United States Code, relating to
the copyright interests of certain musical performances, and for other
purposes; to the Committee on the Judiciary.

MUSIC LICENSING LEGISLATION

Mr. BROWN. Mr. President, I introduce legislation that would
lift a burden off of small businesses who currently pay fees to music
licensing organizations under a complicated and cumbersome copyright
law.
Introduction of this legislation reflects what I consider a fair
position. This bill acknowledges the different sides, and aims to reach
a compromise position. This legislation comes after hours and hours of
negotiations with different interests over the course of several
months.
Under current law, music licensing organizations are permitted to
collect fees from those who play a radio or television in their
commercial establishment. The music may be background music, or it may
be music played at half-time during a football game. The music license
fee applies to shoe stores, to diners, to shopping centers or any other
business establishment.
The artists who create this music certainly deserve compensation for
their intellectual property. In fact, those artists are compensated for
their labors. When a song is played over a radio or TV, the broadcaster
pays for the rights to play that song. When we are at home, and we turn
on the radio, we are not expected to pay a second fee. Yet, if a radio
is played at a commercial establishment for no commercial gain, a
second fee is charged for the music. This double-dipping smacks of
unfairness.
In addition, there is tremendous inequity in the way licensing
companies assess these fees. The businesses are unable to see a list of
the songs that are available for licensing. The businesses are unable,
because of the market inequity, to bargain for a fair price. Instead,
we have an anticompetitive environment where two or three licensing
companies control almost all of the music available. Small businesses
have two options: pay the preordained fee or turn off the radio or TV.
The approach I have taken to address this problem aims at leveling
this playing field. The legislation I am introducing would require the
licensing companies to make a list of their repertory available so
businesses can know what products they are paying for.
The legislation would exempt small businesses from paying the fee for
music played over radio and TV if a fee has already been paid. Where
music has already been paid for by the broadcaster, the copyright owner
has in fact been compensated.
In addition, the legislation would establish arbitration to resolve
disputes over fees. As it stands, if a retail store wishes to contest
the fees paid to one of the licensing companies, they have to go to a
court in New York. Moreover, full blown litigation in any case is often
prohibitively expensive.
The legislation would require the music licensing companies to offer
per period programming licenses--in other words allow radio stations to
purchase licenses for shorter time periods instead of 24 hours a day if
they are only playing music in short spots between religious, news, or
talk shows. I hope my colleagues will join me in leveling the playing
field and will support this bill.
I ask unanimous consent that letters in support of this bill from the
National Federation of Independent Business, the National Religious
Broadcasters, the National Restaurant Association, and the National
Retail Federation be included in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

National Federation of

Independent Business,

Washington, DC, March 20, 1996.
Hon. Hank Brown,
U.S. Senate, Washington, DC.
Dear Senator Brown: On behalf of the more than 600,000
members of the National Federation of Independent Business
(NFIB), I would like to express our support for your
compromise music licensing legislation. NFIB believes this
proposal will resolve many of the serious problems that exist
between the small business community and the music licensing
societies--ASCAP, BMI and SESAC.
In a recent NFIB survey, more than 92 percent of small-
business owners called for music licensing reform. The time
has come for fairness in music licensing.
While your bill is different from S. 1137, it addresses
many of the issues that are of great importance to small
business owners. It allows small businesses to play
incidental music on radios and TV's without violating federal
copyright law. In addition, the measure gives small business
owners the right to arbitrate fee disputes in local forums
rather than forced to file a lawsuit in New York City. Many
small businesses across the country cannot afford the added
expense of traveling to New York City to dispute fees levied
by BMI or ASCAP. The legislation does protect the nine state
music licensing laws that have been enacted and the other 15
states with legislation pending.
NFIB commends your efforts to fashion a workable compromise
and we look forward to working with you to enact music
licensing reform legislation.
Sincerely,

Donald A. Danner,

Vice President,
Federal Governmental Relations.
____

National Religious Broadcasters,

Manassas, VA, March 19, 1996.
Hon. Hank Brown,
U.S. Senate, Washington, DC.
Dear Senator Brown: On behalf of National Religious
Broadcasters, I want to commend you and Senators Thurmond,
Faircloth, Helms and Thomas for introducing legislation to
address the inequities and abuses in the current system for
licensing copyrighted music. Our organization, which
represents over 800 religious broadcast stations and program
providers, is grateful for your leadership and is prepared to
support you in any way possible to pass this bill in the
104th Congress.
Legislation is badly needed to rectify the injustices
forced upon Christian radio by the entertainment licensing
monopolies, ASCAP and BMI. For years, our members who use
limited amounts of music in their programming have tried to
negotiate a fair license that would allow them to pay simply
for the music they play and not be charged as if they played
copyrighted works all day long.

[[Page S2424]]

In the face of monopoly powers granted to ASCAP and BMI by
the federal government, and in the absence of clear
Congressional policy to guide competition in the licensing
arena, we find we have no leverage with which to negotiate a
fair ``per program license''. Your bill goes a long way
toward solving that problem.
We also understand your bill will require the music
licensing monopolies to disclose in a practical and user-
friendly way the songs for which they have the rights to
collect royalties, and it will not allow ASCAP, BMI or any
other licensing organization to bring infringement actions
against music users for songs that are not listed in their
publicly available data bases. These provisions, together
with an effective per program license, are critical to
establishing music licensing rules that bear some resemblance
to a free market system.
In addition to our strong support for your bill, I also
urge you and your cosponsors to block any copyright-related
legislation in the Senate that does not incorporate music
licensing reforms. It would be unconscionable for Congress to
enact any measures that enhance the economic clout of the
music licensing monopolies without first correcting their
abusive business practices. In the view of religious
broadcasters, the current system essentially forces Christian
radio stations to indirectly subsidize immoral, violent and
sexually explicit entertainers--entertainers who reap
millions in royalties from the unfair blanket licenses small
religious broadcasters are forced to buy. Please see the
attached resolution passed by the NRB Board of Directors in
February in this regard.
Thank you again for taking a stand for fairness in music
licensing. In doing so, you're also making a stand for the
positive, life-changing power of religious radio. The
millions of Americans whose lives are enriched every day by
religious broadcasts are watching this issue very carefully.
Sincerely,
E. Brandt Gustavson, L.L.D., President.
____

National Retail Federation,

Washington, DC, March 19, 1996.
Hon. Hank Brown,
U.S. Senate, Washington, DC.
Dear Senator Brown: On behalf of the National Retail
Federation and the 1.4 million U.S. retail establishments, I
am writing to support your compromise legislation to amend
federal copyright law to provide the nation's retailers with
protection against the arbitrary pricing, discriminatory
enforcement and abusive collection practices of music
licensing organizations.
Retailers of all sizes, particularly smaller establishments
in your state, are confronted daily by costly and
unreasonable demands from music licensing organizations.
These organizations have monopoly power to set rates and
therefore, retailers are frequently asked to pay outrageous
and unfair licensing fees to play music which is only
incidental to the purpose of their business.
Under your legislation, business establishments that use
radio or TV music with less than 5,000 square feet of public
space would be exempt from licensing fees as long as the
music was purely background or incidental to the purpose of
the business, and customers were not charged a fee to listen
to the music. While not all retailers are covered under this
compromise, we believe it represents significant progress.
Your bill also gives businesses the right to arbitrate fee
disputes in local forums rather than being forced to file
lawsuits in New York and requires music licensors to provide
consumers with full information about the music they are
purchasing.
Thank you for your leadership on behalf of America's Main
Street. Your efforts and those of your staff to provide
relief are greatly appreciated. We look forward to working
with you to enact this legislation.
Sincerely,

John J. Motley III,

Senior Vice President,
Government and Public Affairs.
____

National Restaurant Association,

Washington, DC, March 19, 1996.
Hon. Hank Brown,
U.S. Senate, Washington, DC.
Dear Senator Brown: On behalf of the National Restaurant
Association and the 739,000 foodservice establishments
nationwide, we would like to express our support for your
compromise music licensing legislation. We believe this
proposal will resolve many of the serious problems that exist
between the business community and the music licensing
societies--ASCAP, BMI, and SESAC.
As you know, your legislation represents major concessions
by the business community and is different from S. 1137, the
Fairness in Musical Licensing Act of 1995. More importantly,
however, you measure addresses many of the issues that are of
great significance to restaurateurs throughout the country.
These include:
Allowing for a logical expansion of current law to allow
small businesses to play incidental music on radios and TVs
without violating federal copyright law.
Giving businesses the right to arbitrate fee disputes in
local forums rather than being forced to file a lawsuit in
New York City.
Requiring music licensors to provide consumers with full
information on the product--the music--they are buying.
All of this is done while protecting the nine state laws
that have been enacted and the other 15 states with
legislation pending. As you know, S. 1619, introduced by
Senator Hatch would preempt all state music licensing laws.
It also, in our opinion, fails to address the number of the
problems that exist with the societies including arbitration
and access to repertoire.
Senator, as you know, restaurateurs from around the country
have faced harassment, frivolous lawsuits, and arbitrary and
onerous licensing fees. On behalf of the entire industry, we
want to thank you and your staff for the countless hours you
have devoted to reach a reasonable compromise. We fully
support your efforts and will work towards enactment of your
bill.
Sincerely,
Elaine Graham,
Senior Director, Government Affairs.

Katy McGregor,
Legislative Representative.
______

By Mr. STEVENS (for himself, Mr. Dole, Mr. Abraham, Mr. Bennett,
Mr. Brown, Mr. Coats, Mr. Cochran, Mr. Coverdell, Mr. Craig,
Mr. D'Amato, Mr. Faircloth, Mr. Grams, Mr. Gregg, Mr. Hatch,
Mr. Helms, Mrs. Hutchison, Mr. Inhofe, Mr. Inouye, Mr.
Kempthorne, Mr. Kyl, Mr. Nickles, Mr. Simpson, Mr. Smith, and
Mr. Thompson):
S. 1629. A bill to protect the rights of the States and the people
from abuse by the Federal Government; to strengthen the partnership and
the intergovernmental relationship between State and Federal
governments; to restrain Federal agencies from exceeding their
authority; to enforce the 10th amendment to the Constitution; and for
other purposes; to the Committee on Governmental Affairs.

the 10th amendment enforcement act of 1996

Mr. STEVENS. Mr. President, today, on behalf of 23 of my colleagues,
as well as Governors, attorneys general, State legislators, and mayors
across the Nation, I rise to introduce the 10th Amendment Enforcement
Act of 1996.
The 10th amendment was a promise to the States and to the American
people that the Federal Government would be limited, and that the
people of the States could, for the most part, govern themselves as
they saw fit.
Unfortunately, in the last half century, that promise has been
broken. The American people have asked us to start honoring that
promise again: to return power to State and local governments which are
close to and more sensitive to the needs of the people.
The 104th Congress and in particular, the Unfunded Mandates Reform
Act, started to shift power out of Washington by returning it to our
States and to the American people. Today we continue that process.
The 10th Amendment Enforcement Act of 1996 will return power to the
States and to the people by placing safeguards in the legislative
process, by restricting the power of Federal agencies and by
instructing the Federal courts to enforce the 10th amendment.
The act enforces the 10th amendment in five ways:
First, the act includes a specific congressional finding that the
10th amendment means what it says: The Federal Government has no powers
not delegated by the Constitution, and the States may exercise all
powers not withheld by the Constitution;
Second, the act states that Federal laws may not interfere with State
or local powers unless Congress declares its intent to do so and
Congress cites its specific constitutional authority;
Third, the act gives Members of the House and Senate the ability to
raise a point of order challenging a bill that lacks such a declaration
or that cites insufficient constitutional authority. Such a point of
order would require a three-fifths majority to be defeated;
Fourth, the act requires that Federal agency rules and regulations
not interfere with State or local powers without constitutional
authority cited by Congress. Agencies must allow States notice and an
opportunity to be heard in the rulemaking process;
Fifth, the act directs courts to strictly construe Federal laws and
regulations that interfere with State powers, with a presumption in
favor of State authority and against Federal preemption.
Before the bill was even introduced, I received letters of support
from many Governors and attorneys general--men and women from across
the Nation and from both parties who support our efforts to return
power to the States and to the people.
Mr. President, I ask unanimous consent that the text of the bill and
letters from Governors Allen, Bush,

[[Page S2425]]

Engler, Leavitt, Merrill, Racicot, Cayetano, and Thompson, and from
Attorneys General Bronster, Condon, and Norton be included in the
Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. STEVENS. Mr. President, as the Supreme Court has stated,

just as the separation and independence of the coordinate
branches of the Federal Government serves to prevent the
accumulation of excessive power in any one branch, a healthy
balance of power between the States and the Federal
Government will reduce the risk of tyranny and abuse from
either front.

The 10th Amendment Enforcement Act of 1996 will prevent overstepping
by all three branches of the Federal Government, and will focus
attention on what State and local officials have been advocating for so
long: the need to return power to the States and to the people.

Exhibit 1

S. 1629

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

SECTION 1. SHORT TITLE.

This act may be referred to as the ``Tenth Amendment
Enforcement Act of 1996.''

SEC. 2. FINDINGS.

The Congress finds that--
(a) in most areas of governmental concern, State
governments possess both the Constitutional authority and the
competence to discern the needs and the desires of the People
and to govern accordingly;
(b) Federal laws and agency regulations, which have
interfered with State powers in areas of State jurisdiction,
should be restricted to powers delegated to the Federal
Government by the Constitution;
(c) the framers of the Constitution intended to bestow upon
the Federal Government only limited authority over the States
and the People;
(d) under the Tenth Amendment to the Constitution, the
powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people;
(e) the courts, which have in general construed the Tenth
Amendment not to restrain the Federal Government's power to
act in areas of State jurisdiction, should be directed to
strictly construe Federal laws and regulations which
interfere with State powers with a presumption in favor of
State authority and against Federal preemption.

SEC. 3. CONGRESSIONAL DECLARATION.

(a) On or after January 1, 1997, any statute enacted by
Congress shall include a declaration--
(1) that authority to govern in the area addressed by the
statute is delegated to Congress by the Constitution,
including a citation to the specific Constitutional authority
relied upon;
(2) that Congress specifically finds that it has a greater
degree of competence than the State to govern in the area
addressed by the statute; and
(3) if the statute interferes with State powers or preempts
any State or local government law, regulation or ordinance,
that Congress specifically intends to interfere with State
powers or preempt State or local government law, regulation,
or ordinance, and that such preemption is necessary.
(b) Congress must make specific factual findings in support
of the declarations described in this section.

SEC. 4. POINT OF ORDER.

(a) In General.--
(1) Information required.--It shall not be in order in
either the Senate or House of Representatives to consider any
bill, joint resolution, or amendment that does not include a
declaration of Congressional intent as required under section
3.
(2) Supermajority required.--The requirements of this
subsection may be waived or suspended in the Senate or House
of Representatives only by the affirmative vote of three-
fifths of the Members of that House duly chosen and sworn. An
affirmative vote of three-fifths of the Members of the Senate
or House of Representatives duly chosen and sworn shall be
required to sustain an appeal of the ruling of the chair
on a point of order raised under this subsection.
(b) Rule Making.--This section is enacted--
(1) as an exercise of the rule-making power of the Senate
and House of Representatives, and as such, it is deemed a
part of the rules of the Senate and House of Representatives,
but is applicable only with respect to the matters described
in sections 3 and 4 and supersedes other rules of the Senate
or House of Representatives only to the extent that such
sections are inconsistent with such rules; and
(2) with full recognition of the Constitutional right of
the Senate or House of Representatives to change such rules
at any time, in the same manner as in the case of any rule of
the Senate or House of Representatives.

SEC. 5. EXECUTIVE PREEMPTION OF STATE LAW.

(a) In General.--Chapter 5 of title 5, United States Code,
is amended by inserting after section 559 the following new
section:

``SEC. 560. PREEMPTION OF STATE LAW.

``(a) No executive department or agency or independent
agency shall construe any statutory authorization to issue
regulations as authorizing preemption of State law or local
ordinance by rule-making or other agency action unless--
``(1) the statute expressly authorizes issuance of
preemptive regulations; and
``(2) the executive department, agency or independent
agency concludes that the exercise of State power directly
conflicts with the exercise of Federal power under the
Federal statute, such that the State statutes and the Federal
rule promulgated under the Federal statute cannot be
reconciled or consistently stand together.
``(b) Any regulatory preemption of State law shall be
narrowly tailored to achieve the objectives of the statute
pursuant to which the regulations are promulgated and shall
explicitly describe the scope of preemption.
``(c) When an executive branch department or agency or
independent agency proposes to act through rule-making or
other agency action to preempt State law, the department or
agency shall provide all affected States notice and an
opportunity for comment by duly elected or appointed State
and local government officials or their designated
representatives in the proceedings.
``(1) The notice of proposed rule-making must be forwarded
to the Governor, the Attorney General and the presiding
officer of each chamber of the Legislature of each State
setting forth the extent and purpose of the preemption. In
the table of contents of each Federal Register, there shall
be a separate list of preemptive regulations contained within
that Register.
``(d) Unless a final executive department or agency or
independent agency rule or regulation contains an explicit
provision declaring the Federal government's intent to
preempt State or local government powers and an explicit
description of the extent and purpose of that preemption, the
rule or regulation shall not be construed to preempt any
State or local government law, ordinance or regulation.
``(e) Each executive department or agency or independent
agency shall publish in the Federal Register a plan for
periodic review of the rules and regulations issued by the
department or agency that preempt, in whole or in part, State
or local government powers. This plan may be amended by the
department or agency at any time by publishing a revision
in the Federal Register.
``(1) The purpose of this review shall be to determine
whether and to what extent such rules are to continue without
change, consistent with the stated objectives of the
applicable statutes, or are to be altered or repealed to
minimize the effect of the rules on State or local government
powers.''.
(b) Any Federal rule or regulation promulgated after
January 1, 1997, that is promulgated in a manner inconsistent
with this section shall not be binding on any State or local
government, and shall not preempt any State or local
government law, ordinance, or regulation.
(c) Conforming Amendment.--The table of sections for
chapter 5 of title 5, United States Code, is amended by
adding after the item for section 559 the following:

``Sec. 560. Preemption of State Law.''.

SEC. 6. CONSTRUCTION.

(a) No statute, or rule promulgated under such statute,
enacted after the date of enactment of this Act, shall be
construed by courts or other adjudicative entities to
preempt, in whole or in part, any State or local government
law, ordinance or regulation unless the statute, or rule
promulgated under such statute, contains an explicit
declaration of intent to preempt, or unless there is a direct
conflict between such statute and a State or local government
law, ordinance, or regulation, such that the two cannot be
reconciled or consistently stand together.
(b) Notwithstanding any other provision of law, any
ambiguities in this Act, or in any other law of the United
States, shall be construed in favor of preserving the
authority of the States and the People.
(c) If any provision of this Act, or the application
thereof to any person or circumstance, is held invalid, the
validity of the remainder of the Act and the application of
such provision to other persons and circumstances shall not
be affected thereby.
____

State of Utah,

Office of the Governor,

Salt Lake City, March 18, 1996.
Hon. Ted Stevens,
Chairman, Government Affairs Committee,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Thank you for your recent correspondence
sharing with me your proposal to strengthen the 10th
Amendment by requiring the federal government to restrict its
legislative and regulatory activities to those powers
delegated to it under the Constitution.
As you know, I have spent a great deal of time over the
past few years working on 10th Amendment issues, and I am
very supportive of your proposed legislation. As I have
studied the history of the 10th Amendment, it has become
clear to me that we must act overtly to strengthen this
important precept of the Constitution, or it will continue to
erode away.
Let me provide some background on why I believe this is so
important. The founders of our country attempted to carefully
balance power between the competing interests of the states
and the national government. They worried that the national
government might gain too much power, so they gave

[[Page S2426]]

states tools, or rules, that if followed would maintain the
healthly tension necessary to protect self-governance by the
people and prevent any level of government from overstepping
its bounds.
Among those rules or tools given to states were these:
The 10th Amendment, which reserved any power not
specifically delegated to the national government to the
states and the people. Clearly, the founders intended the
national government to stay within the bounds of duties
enumerated in the Constitution.
The election of U.S. senators by state legislatures. Having
senators directly accountable to state legislatures would
keep the national government in check. If the national
government centralized authority or passed bills disliked by
the states, legislatures could call their senators in for an
accounting. It would not be likely for the Congress to usurp
state authority if senators owed their political lives to
state legislatures. The power was carefully balanced and the
tension was healthy.
The ability of state legislatures to initiate
constitutional amendments. This also would keep the national
government in check because if it got out of line the states
could take action to rein it in. It is clear that the
founders intended state leaders to have the ability to
initiate constitutional amendments.
The sense that state leaders would rise in indignation and
band together to oppose congressional centralization of
authority and usurpation of power. In Federalist 46, James
Madison predicted that ``ambitious encroachments of the
federal government on the authority of the state governments
. . . would be signals of general alarm. Every government
would espouse the common cause . . . plans of resistance
would be concerted.'' States would react as though in danger
from a ``foreign yoke,'' he suggested.
Those were some of the tools the founders put in place to
safeguard the roles of both levels of government and to
prevent either from becoming too dominant.
It would likely be a matter of some bitterness and
disappointment to the founders if they were to return today
to see what happened to the finely-crafted balance, the
healthy tension that they built into the Constitution. As
they see a national government that dictates to states on
nearly every issue and that is involved in every aspect of
citizens' lives, they might wonder what happened to those
tools and rules they established to maintain balance.
The sad fact is that each one of those tools has either
been eroded away, given away, or rendered impossible to use.
Thus, today there does not exist any restraint to prevent the
national government from taking advantage of the states. To
their credit, leaders of the Republican Congress have gone
out of their way to involve governors in important decisions.
But there is nothing permanent in that relationship. With a
change in leadership, state leaders could easily be relegated
to their past status as lobbyists and special interest
groups. Over the past several decades, they have had to
approach Washington hat in hand, hoping and wishing that
Congress will listen to them. There has been no balance of
power, no full partnership in a federal-state system. States
must accept whatever the Congress gives them. States have no
tools, no rules, ensuring them an equal voice.
Let's look at what happened to those tools and rules the
founders so carefully provided to ensure balance.
The 10th Amendment has been eroded to the point that in the
minds of most Washington insiders it barely exists. The
preponderance of congressional action and federal court
decisions over the past 60 years have rendered the 10th
Amendment nearly meaningless. It would barely be recognizable
by the founders. States did not defend or guard it properly
and it no longer protects states.
States gave away the power to have their U.S. senators
directly accountable to state legislatures. There was good
reason for this, as graft and corruption sometimes occurred
in the appointment of senators by legislatures. States
ratified the 17th Amendment making senators popularly
elected, and citizens should not be asked to give up the
right to elect their senators. But while it does not make
sense to try to restore that tool, it should be replaced
with something else more workable.
The ability of states to initiate constitutional amendments
has never been used and is essentially unworkable. Clearly,
the founders intended for state leaders to be able to
initiate amendments as a check on federal power, but it has
never happened and likely never will. The Congress sits as a
constitutional convention every day it is in session, and can
propose constitutional amendments any time it desires. But
many citizens have an enormous fear of state leaders coming
together to do the same thing, even though any amendment
proposed would require ratification by three-fourths of
states. Thus, this tool provided by the founders has become
impractical and does not protect states from federal
encroachment.
The fourth tool was the founders' belief that state leaders
would jealously guard their role in the system and rise up in
opposition to federal intrusions. That has not happened,
especially as state governments have become dependent on
federal dollars and have been willing to give up freedom for
money. States have proven themselves to be politically
anemic. Instead of mobilizing against federal encroachments,
state leaders have spent their time lobbying for money and
hoping for flexibility.
Thus, it is no wonder that states have little true clout as
budget cuts are made and as the pie is being divided in
Washington D.C. There is no healthy tension. States have no
tools or rules to protect themselves. What is passing for
federalism in Washington today is not a true sharing of
power, but a subcontracting of federal programs to states.
The federal government is merely delegating, not devolving
true authority.
Because the tools protecting states have been rendered
ineffective, it is important that Congress replace them with
new versions that accomplish what the Founders intended. That
is why I am so supportive of your Tenth Amendment Enforcement
Act. It would help prevent all three branches of the federal
government from overstepping their constitutional authority
and would help restore the careful balance put in place by
the Founders.
I thank you for your efforts to return power to the states
and to the people. Please count me among the supporters of
this legislation.
Sincerely,
Michael O. Leavitt,
Governor, State of Utah.
____

Commonwealth of Virginia,

Office of the Governor,

March 12, 1996.
Hon. Ted Stevens,
Member, U.S. Senate, Chairman, Committee on Governmental
Affairs, Washington, DC.
Dear Ted: Thank your for your letter regarding the Tenth
Amendment Enforcement Act of 1996.
Two centuries ago, the challenge to individual liberty came
from an arrogant, overbearing monarchy across the sea. Today,
that challenge comes all too often from our own federal
government, which has ignored virtually every constitutional
limit fashioned by the framers to confine its reach and thus
to guard the freedoms of the people.
In our day, the threat to self-determination posed by the
centralization of power in the nation's capital has been
dramatically demonstrated. Under my administration, Virginia
has challenged the constitutionality of federal mandates in
court, and I have testified before the Congress in support of
restoring powers to the States and the people.
The legislation you are proposing will help the States and
the people regain prerogatives usurped by an overbearing
federal government. I wholeheartedly support your efforts and
would be pleased to work with you to highlight the impact of
federal intrusion in Virginia.
With kind personal regards, I remain,
Sincerely,
George Allen.
____

State of Michigan,

Office of the Governor,

Lansing, MI, March 19, 1996.
Hon. Ted Stevens,
U.S. Senate,
Washington, DC.
Dear Senator Stevens: I am writing in support of the Tenth
Amendment Enforcement Act of 1996, which I understand you
intend to introduce this week. Congressional action of this
type is necessary to restore vigor to this often-neglected
provision of our constitution and I wholeheartedly support
your effort to do so.
Congress has over the years run roughshod over state
concerns and prerogatives and has generally lost sight of the
fact that ours is a federal system of government. In that
system, the federal government has only those powers
specifically delegated to it and enumerated in the
constitution, with the balance remaining with the states or
the people. Too often in our recent history the federal
government has ignored the meaning of the Tenth Amendment in
a mad rush to impose a one-size-fits-all approach in areas of
traditional state and local concern. This approach stifles
innovation and takes the policy debate further from the
people by centralizing decision-making in Washington, D.C.
A recent example of federal intrusion into a matter best
left to the states is the Motor Voter law, which imposes an
unfunded mandate on the states to offer voter registration
services at state social services offices. Michigan must
comply with this requirement even though nearly 90 percent of
its eligible population is already registered to vote. In
fact, Michigan demonstrated the states' superior ability to
craft innovative solutions in areas such as this when it
initiated the motor voter concept some 21 years ago by
offering voter registration services at Secretary of State
branch offices. The imposition of a federal ``solution'' in
this area ignores the fact that states are better positioned
to address the needs of their citizens and can do so without
prodding from the federal government.
The Tenth Amendment Enforcement Act of 1996 will help
restore the balance to our federal system that the framers of
the constitution intended. It will do so by requiring
congress to identify specific constitutional authority for
the exercise of federal power. This will have the salutary
effect of reminding the congress that it can legislate only
pursuant to an enumerated power in the constitution.
Requiring congress to state its intention to preempt existing
state or federal law or interfere with state power should
assist in limiting the intrusion the federal Motor Voter law
exemplifies.
I recently offered amendments to the National Governors'
Association's policy on

[[Page S2427]]

state-federal relations that the governors adopted at our
1996 winter meeting. That policy calls upon Congress to
``limit the scope of its legislative activity to those areas
that are enumerated and delegated to the federal government
by the constitution.'' The Tenth Amendment Enforcement Act of
1996 will help reinvigorate this fundamental constitutional
principle and for that reason enjoys my full support.
Sincerely,
John Engler,
Governor.
____

Office of the Governor,

State of Montana,

Helena, MT, March 6, 1996.
Hon. Ted Stevens,
Chairman, U.S. Senate Committee on Governmental Affairs,
Washington, DC.
Dear Chairman Stevens: I am writing in support of your
proposed legislation entitled the Tenth Amendment Enforcement
Act of 1996. I applaud your efforts to protect states from
federal legislation that, while perhaps unintentionally, has
had a strangling effect on the states' ability to act
effectively on behalf of their citizens.
The failure to respect states' rights takes a variety of
forms, from unfunded mandates to complex requirements that
prohibit states from adopting innovative programs to solve
problems that may be unique to the state or region. I am sure
it is difficult to determine which functions the federal
government should properly manage and which should be left to
state or local governments. I think most would agree,
however, with the intent of the Tenth Amendment--that a
better balance must be struck between the federal government
and each of the states.
The revitalization of government is essential in these
times of declining trust and diminishing respect of its
cities. The Tenth Amendment Enforcement Act of 1996 would
make government more responsive to our citizens and help
restore the public's faith in the policy process.
I hope your proposal is received well in Congress. I know
it would be received well in the states.
Sincerely,
Marc Racicot,
Governor.
____

State of Wisconsin,

Office of Federal/State Relations,

Washington, DC, March 5, 1996.
Hon. Ted Stevens,
Chairman, Rules & Administration Committee, U.S. Senate,
Washington, DC.
Dear Chairman Stevens: I am writing you in support of
legislation that you intend to introduce in your committee
regarding the Tenth Amendment. Your vision in regard to this
delegation of powers should be commended. Our founding
fathers would applaud your courageous efforts.
As you know, the Tenth Amendment restricts the federal
government's legislative and regulatory activities to those
powers delegated to the federal government under the U.S.
Constitution.
Since I have held elective office I have always been a
staunch supporter of States Rights' and a firm believer that
decisions are best made at the local level. Your bill
identifies the problems associated with the lack of
enforcement of the Tenth Amendment at present and aims to
amend some of these inconsistencies.
Under the Tenth Amendment, federal laws may not interfere
with state or local powers unless Congress declares its
intent to do so, and Congress cites its specific
constitutional authority. Allowing Members of Congress to
challenge future legislation that attempts to supersede the
Tenth Amendment in my opinion would be beneficial.
As Governor of the State of Wisconsin, I have always been a
firm believer that legislation is a far better course of
action than litigation. Your bill would do away with needless
regulation, infringement of states' abilities to provide
quality services to its residents', and encourage local
decision making opportunities.
The Tenth Amendment Enforcement Act of 1996 would prevent
confusion between the three branches of government and would
keep the pressure on Washington to address the concerns
Governors have been advocating for years; the need to return
power to the states and to the people.
Again, I would like to take this opportunity to thank you
for your support on this important legislative matter. Please
do not hesitate to contact me in the future.
Sincerely,
Tommy G. Thompson,
Governor.
____

State of New Hampshire,

Office of the Governor,

Concord, NH, February 26, 1996.
Hon. Ted Stevens,
U.S. Senate, Chairman, Committee on Governmental Affairs,
Washington, DC.
Dear Senator Stevens: Thank you for your letter outlining
your introduction of the Tenth Amendment Enforcement Act of
1996. I am pleased to offer my strong endorsement of this
piece of legislation.
The individual states have seen a continual degradation of
their power and sovereignty during the past 60 years.
Beginning with the creation of the welfare state through
President Roosevelt's New Deal in the 1930's, the federal
government has inappropriately usurped power traditionally
left to the states. Issues such as education, crime, commerce
and the environment have been co-opted at the federal level.
The result is an erosion of local control and the creation of
a system of twisted rules and regulations. This
overregulation has stifled State initiatives and innovations.
The time has come to say enough is enough.
In the State of New Hampshire, many examples exist of
federal overreaching. The most telling of these is our
continuing attempts at reforming welfare. Our ambitious
program would end welfare as we know it, putting people into
the workforce. It is based upon the simple notion that those
who are able to work for a living should do so. Instead of
collecting a welfare check, individuals would receive
unemployment benefits and job training. The result would be a
motivated workforce, properly trained and prepared to sustain
themselves instead of accepting government largesse.
Unfortunately, the federal government has gone out of its way
to hinder our efforts. New Hampshire is not alone in this
fight. Each state has a similar story to tell.
Liberty is defined by American Heritage as the ``condition
of being free of restriction or control.'' It is clear that
this definition does not relate to our current set of
circumstances. The individual states are the engines of
democracy, pushing new and exciting concepts which enrich the
country as a whole. The states have been thwarted in their
efforts to accomplish this. The time has come to reassert the
authority of the Tenth Amendment and to return power back to
the states and to the individual where it belongs. I believe
that the Tenth Amendment Enforcement Act of 1996 will do this
and strongly support its passage.
Very truly yours,
Stephen Merrill,
Governor.
____

State of Texas,

Office of the Governor,

February 27, 1996.
Hon. Ted Stevens,
U.S. Senate Committee on Governmental Affairs, Washington,
DC.
Dear Senator Stevens: I strongly support your legislation,
the Tenth Amendment Enforcement Act of 1996.
I applaud your efforts and hope to see this bill's passage
this year.
Sincerely,
George W. Bush.
____

State of South Carolina,

Office of the Attorney General,

Columbia, SC, March 14, 1996.
Hon. Ted Stevens,
U.S. Senate,
Washington, DC.
Dear Senator Stevens: Please accept this letter as a pledge
of support for the Tenth Amendment Enforcement Act of 1996,
which you are introducing in the Senate. This is clearly one
of the most important pieces of legislation to come before
Congress this year.
As attorney general of South Carolina, I see first-hand the
trouble that arises every time the federal government
oversteps its boundaries and intrudes on states' rights. In
fact, South Carolina can claim one of the most egregious
examples of the federal government meddling in states'
affairs with disastrous results.
Several years ago, when I was a solicitor in Charleston,
S.C., a local hospital approached me with a plea: Help us do
something about crack babies. In increasing numbers, pregnant
women were abusing crack cocaine and giving birth to addicted
newborns, who cry and shake uncontrollably, refuse to take
food and, too often, ultimately die in intensive care.
Working with the hospital, I developed a program to
aggressively confront pregnant women with the consequences of
their drug use. Over five years, we presented all pregnant
women who tested positive for cocaine with a choice: seek
drug treatment or face arrest and jail time.
The program was undeniably successful--until the federal
government intervened. Without offering any reasonable
alternative solutions for saving these crack babies, federal
officials came to Charleston and yowled about discrimination
and privacy rights. When we refused to back down, they
resorted to blackmail. They continued with the program.
So, now, once again, these crack babies cry unconsolably in
Charleston--thanks to the federal government's intrusion
where is has no business.
There are myriad other examples of ways the federal
government ignores the 10th amendment--with effects that
would be laughable if they didn't do so much harm. A
sampling:
The Hunley. The federal government claims it owns the H.L.
Hunley because it won the Civil War. However, the first
submarine to sink another vessel lies on soil that belonged
to the state of South Carolina even before the United States
came into existence. Although common and maritime law, as
well as state and federal statutes, point to South Carolina's
ownership of the sunken submarine, the federal government's
insistence on interfering in South Carolina affairs will cost
all of the nation's taxpayers. Worse, its meddling in this
matter has caused this war treasure to sit at the bottom of
the Atlantic Ocean, rusting away, until the issue can be
resolved with the federal government.
The Citadel. Traditionally, education has been a province
of the states. And polls show

[[Page S2428]]

that the majority of South Carolinians--both male and
female--want the option of single-gender education offered by
The Citadel. But the federal government thinks it knows
what's best for South Carolinians and is trying to destroy an
outstanding educational environment that South Carolinians
overwhelmingly support.
Tobacco regulation. The Food and Drug Administration is
trampling on states' turf with its new proposals for
regulating cigarettes and chewing tobacco. Perhaps its
silliest demand is that all advertising label cigarettes as
``a nicotine-delivery device.'' The fact is, Congress has not
given the FDA power to regulate tobacco except in limited
instances. Everything else is up to the states--at least,
it's supposed to be. We know the laws in South Carolina, and
we can enforce them without Washington's ``help.''
Garnishment of wages. The federal government is threatening
to sue South Carolina for not complying with a federal law
that authorizes the garnishment of wages of people who get
behind on student loans. The problem is, the law contains no
express provision applying its terms to state government. In
fact, its language attempts to override state laws
altogether. It provides no clear direction to state
governments, but now we're faced with the possibility of
defending South Carolina in a suit.
Motor Voter. South Carolina is one of seven states to
challenge the ``Motor Voter'' law that allows people to
register to vote when they obtain a driver's license. The
issue is not easy and accessible registration; we already
have that in place. The issues are the rights of sovereign
states and unfunded federal mandates. The federal government
demanded that South Carolina spend a million dollars to
expand its voter registration program--without giving the
state a dime. Then, when we began to implement the program,
the Justice Department demanded that the state contact all
the people who theoretically could have registered while we
were in litigation. And it ordered a monthly report on our
progress. This micro-management of state business by the
federal government should be an outrage to all U.S. citizens.
In closing, the legislation you are proposing promises a
meaningful solution to the federal government's continued
disregard of the 10th Amendment. Count me in as an
enthusiastic supporter of the bill, and let me know of
anything I can do to promote its passage.
With kindest personal regards,
Charles Molony Condon,
Attorney General.
____

State of Hawaii,

Department of the Attorney General,

Honolulu, HI, March 4, 1996.
Hon. Ted Stevens,
U.S. Senator, Chairman, Committee on Governmental Affairs,
Washington, DC.
Dear Senator Stevens: As the Attorney General for the State
of Hawaii, I am writing to express my strong support for the
Tenth Amendment Enforcement Act of 1996 (``TAEA'').
There have been far too many instances in which federal
laws impede, interfere with, or nullify state legislative or
administrative actions to the detriment of the interests of
the people of Hawaii. This has occurred in large part because
the federal courts have given much congressional legislation
very broad preemptive scope, in many cases far beyond what it
appears Congress itself intended. These preemption rulings
have prevented the states from enforcing and implementing
needed state policies in areas of traditional state concern,
while at the same time failing to serve any significant
federal interests.
In my fourteen month tenure as Attorney General of Hawaii,
examples of important state policies which were frustrated by
preemption rulings made by the federal courts include the
striking down of Hawaii's employment disability
discrimination laws as applied to airline pilots, see Aloha
Islandair v. Tseu, Civ. No. 94-00937 (D. Haw. 1995), appeal
filed, C.A. No. 95-16656 (9th Cir.), the overturning of state
labor department discretion to bar preexisting condition
limitations in state-wide employee health care plans,
Foodland Super Market v. Hamada, Civ. No. 95-00537 (D. Haw.
1996), appeal filed (9th Cir.), and the nullification of a
state law merely asking the State's two major newspapers,
granted the privilege of doing business under a joint
operating agreement with antitrust immunity, to turn over
their tax returns to the state Attorney General, for
subsequent disclosure to the United States Justice
Department, in order to assess the economic consequences of,
and the newspapers' continued need for, the antitrust
immunity, see Hawaii Newspaper Agency v. Bronster, Civ. No.
95-00635 (D. Haw. 1996), appeal filed, C.A. No. 96-15142 (9th
Cir.).
Enactment of the TAEA would be a significant step in
reversing this disturbing trend, and would help restore state
direction over areas of predominant, if not exclusive, state
concern. Under the TAEA (Section 6), preemption would only
occur when Congress has explicitly stated that a given area
is preempted. This would curtail the potentially unlimited
sweep of the ``implied preemption'' doctrine, and ideally
result in a more narrowly construed ``express preemption.''
Although certain provisions of the TAEA may pose procedural
difficulties, or raise some questions of interpretation, I
support the overall effect of, and goals behind, the TAEA,
and specifically endorse Section 6, which would do much to
minimize unwarranted preemption of state actions. I would,
however, broaden the language of Section 6(a) to clarify that
federal law shall not preempt ``State or local government
law, ordinance, regulation, or action,'' unless the statute
explicitly declares an intent to preempt. This should ensure
that all types of state action, including, for example, state
discretionary administrative actions not commanded by any
rule or statute, are not preempted without express
congressional statement of intent to do so.
Thank you for your support of these critical state
interests.
Very truly yours.
Margery S. Bronster,
Attorney General.
____

State of Colorado, Department of Law, Office of the
Attorney General,
Denver, CO, March 15, 1996.
Re Tenth Amendment Enforcement Act

Hon. Ted Stevens,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Dear Senator Stevens: I am writing to express my strong
support for the proposed Tenth Amendment Enforcement Act of
1996. The proposal is an important part of the continuing
effort to return to the States matters which properly belong
within their control.
Every state has a vast number of examples of federal laws
and regulatory actions which have interfered with state
powers and objectives. I will mention just a few examples
from Colorado.
The federal government has been especially intrusive into
state affairs in the area of the environment. The country
faces many environmental problems, from our quality problems
to hazardous waste cleanups. The states are diligently
working to solve these problems, while taking into account
local needs and concerns. Federal interference with state
efforts often results in less protection to the environment
and less experimentation by the states.
For example, in 1994, Colorado passed legislation which was
intended to encourage businesses to perform voluntary audits
of their environmental compliance and to promptly correct any
violations found. In exchange for these voluntary efforts,
state regulators will not impose penalties for the
violations. This program, which will be of great benefit to
the environment, is severely hampered by the federal
Environmental Protection Agency's refusal to give the same
assurances, that is, to refrain from prosecuting companies
that voluntarily report and correct violations.
Another example of EPA hindering state efforts at
experimentation concerns Colorado's attempts to put in place
a unique water quality testing program. Colorado was one of
the first states to attempt to employ a different
biomonitoring test. Rather than encouraging these efforts,
EPA continuously rejected Colorado's regulation implementing
the program until the state rule was drafted to be word-for-
word like a comparable federal regulation.
Another example in the area of the environment concerns air
quality. Our state has been developing strategies to deal
with air quality issues for years. But our problems and
solutions are unique since Colorado is a high elevation
state. A federal ``one size fits all'' approach does not work
here. The Environmental Protection Agency's answer--a
centralized emissions testing program--has created large
implementation costs and reduced state flexibility in
addressing pollution problems. Even though Colorado drivers
will expend hundreds of millions of dollars in testing costs
over the next few years, State officials have no practical
alternatives if the program does not work or if better
solutions are discovered.
Another example of federal intrusion into matters of state
concern arose recently in Colorado with regard to the
Medicaid program. As you know, Congress' 1993 change to the
Hyde Amendment made federal funds available for abortions
terminating pregnancies resulting from rape and incest, but
did not require that States pay for any abortions. However,
an official at the federal Health Care Financing
Administration wrote a letter concluding that states must pay
for the disputed abortions. Based solely upon this letter,
and without any change in federal statutes or regulations,
several federal appellate courts have required States to pay
for these procedures, notwithstanding state laws to the
contrary.
Colorado state officials are in an impossible dilemma
because our state constitution forbids the use of public
funds to pay for these procedures. To avoid violating the
state constitution but still be consistent with federal
mandates, state officials must either (1) withdraw from the
Medicaid program and forfeit hundreds of millions of dollars
in federal funds, thereby denying thousands of low income
Colorado residents access to needed medical care or (2) face
contempt citations from federal judges. This problem could
have been avoided if federal officials clearly understood
their own responsibility to protect state prerogatives.
The federal ``motor voter'' law presents a different type
of intrusion. This law doesn't treat States just like the
private sector, it actually imposes special burdens simply
because they are States. As the Supreme Court recognized in
Oregon v. Mitchell, 400 U.S. 112

[[Page S2429]]

(1970), it is peculiarly the right of States to establish the
qualifications of voters in state elections. In the absence
of a constitutional violation such as an outright denial of
the right to vote, the States should have control over voter
registration. This sort of unfunded mandate is simply not
justified, particularly since even though this law
unquestionably interferes with the States' internal
affairs, it has not appreciably increased turnout at the
polls.
The Tenth Amendment Enforcement Act helps turn the tide in
favor of State prerogatives. Particularly noteworthy is the
proposal's focus upon agency rulemaking. This is important in
two respects. First, many of the most intrusive instances of
federal preemption come not by virtue of congressionally-
enacted legislation, but through extensive regulations
promulgated by administrative agencies and expanding upon the
congressional authorization.
Second, statutes seeking to limit subsequent congressional
enactments are of limited efficacy, since each subsequent
Congress is not bound by the acts of its predecessors.
However, focusing upon the regulatory process does not
present this problem. My only suggestion would be to include
a review or sunset provision requiring every agency to ensure
that all of its current rules comply with this new
requirement by some date certain, or risk having them
invalidated. This would ensure that agencies review the
numerous existing federal regulations currently impinging
upon Tenth Amendment values--which is, after all, what led to
this proposal.
I appreciate your willingness to carry this proposal
forward, and encourage you to continue your efforts to
restore a proper balance in our federal system.
Sincerely,
Gale A. Norton,
Colorado Attorney General.
______

By Mr. WELLSTONE (for himself and Mr. Wyden):
S. 1630. A bill to prevent discrimination against victims of abuse in
all lines of insurance; to the Committee on Labor and Human Resources.

the victims of abuse insurance protection act

Mr. WELLSTONE. Mr. President, I am very pleased to be joined
by Senator Ron Wyden today in introducing the Victims of Abuse
Insurance Protection Act, legislation that will outlaw discrimination
by insurance companies against the victims of domestic violence in all
lines of insurance.
With this legislation, we are trying to correct an abhorrent practice
by many insurance companies--the denial of coverage to battered women.
It is plain, old fashioned discrimination. It is profoundly unjust and
wrong. And, it is the worst of blaming the victim. Denying women access
to the insurance they require to foster their mobility out of an
abusive situation must be stopped.
There are many stories of women who have been physically abused and
have sought proper medical care only to be turned away by insurance
companies who said they were too high risk to insure.
In Minnesota, three insurance companies denied an entire women's
shelter insurance because, ``as a battered women's shelter, we were
high risk.'' The Women's Shelter in Rochester, MN, was told that it was
considered uninsurable because its employees are almost all battered
women.
Another shelter in rural Minnesota purchased a car so that women and
children in danger who were trying to leave an abusive situation could
use this anonymous vehicle and thus the abuser could not track their
automobile to find them. The shelter could not find a company to
provide them with automobile insurance once the companies knew of the
risks surrounding battered women.
A woman in Iowa named Sandra was denied life insurance after the
company found out that she had been beaten up twice. In one incident,
she had been so badly beaten by an ex-boyfriend that her cheekbones
were splintered, and one of her eyes had to be put back in its socket.
Her mother, Mary, was the one who originally applied for the life
insurance policy, explaining

I didn't ask for a lot of coverage. I just wanted to apply
for thousand dollar coverage, just enough that if something
happened, God forbid, that we could at least bury her.

Mary was angry about the denial, so she wrote to State officials and
the Iowa Insurance Commissioners Office tried to intervene on their
behalf. In four separate letters, the insurance company officials
stated they denied the coverage because of a history of assaults. In
one letter they defended their decision by citing numerous documents
which showed that people involved in domestic violence incidents are at
a higher risk of death and injury than others, and, therefore, not a
good risk.
There are so many stories about victims of domestic abuse being
denied fire insurance, homeowners insurance, life insurance, and health
insurance--denied because they were victims of a crime. Domestic
violence is the leading cause of injury to women, more common than auto
accidents, muggings, and rapes by a stranger combined. It is the No. 1
reason that women go to emergency rooms.
This bill goes a long way toward treating domestic violence as the
crime that it is--not a voluntary risky behavior that can be easily
changed and not as a preexisting condition. Insurance company policies
that deny coverage to victims only serve to perpetuate the myth that
victims are responsible for their abuse.
In order to address the practice of insurers using domestic violence
as a basis for determining whom to cover and how much to charge with
respect to health, life, disability, homeowners and auto insurance,
this legislation prohibits insurance companies from discriminating
against victims in any of the following ways: Denying or terminating
insurance; limiting coverage or denying claims; charging higher
premiums; or terminating health coverage for victims of abuse in
situations where coverage was originally issued in the abuser's name,
and acts of the abuser would cause the victim to lose coverage.
This legislation also keeps victims' information confidential by
prohibiting insurers from improperly using, disclosing, or transferring
abuse-related information for any purpose unrelated to the direct
provision of health care services.
Mr. President, insurance companies should not be allowed to
discriminate against anyone for being a victim of domestic violence. We
may never know the full extent of the problem, but it is grossly unfair
practice and should be prohibited.
I ask unanimous consent that the full text of the bill be printed in
the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1630

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Victims of Abuse Insurance
Protection Act''.

SEC. 2. DEFINITIONS.

As used in this Act:
(1) The term ``abuse'' means the occurrence of one or more
of the following acts between household or family (including
in-laws or extended family) members, spouses or former
spouses, or individuals engaged in or formerly engaged in a
sexually intimate relationship:
(A) Attempting to cause or intentionally, knowingly, or
recklessly causing another person bodily injury, physical
harm, substantial emotional distress, psychological trauma,
rape, sexual assault, or involuntary sexual intercourse.
(B) Engaging in a course of conduct or repeatedly
committing acts toward another person, including following
the person without proper authority and under circumstances
that place the person in reasonable fear of bodily injury or
physical harm.
(C) Subjecting another person to false imprisonment or
kidnapping.
(D) Attempting to cause or intentionally, knowingly, or
recklessly causing damage to property so as to intimidate or
attempt to control the behavior of another person.
(2) The term ``abuse-related medical condition'' means a
medical condition which arises in whole or in part out of an
action or pattern of abuse.
(3) The term ``abuse status'' means the fact or perception
that a person is, has been, or may be a subject of abuse,
irrespective of whether the person has sustained abuse-
related medical conditions or has incurred abuse-related
claims.
(4) The term ``health benefit plan'' means any public or
private entity or program that provides for payments for
health care, including--
(A) a group health plan (as defined in section 607 of the
Employee Retirement Income Security Act of 1974) or a
multiple employer welfare arrangement (as defined in section
3(40) of such Act) that provides health benefits;
(B) any other health insurance arrangement, including any
arrangement consisting of a hospital or medical expense
incurred policy or certificate, hospital or medical service
plan contract, or health maintenance organization subscriber
contract;

[[Page S2430]]

(C) workers' compensation or similar insurance to the
extent that it relates to workers' compensation medical
benefits (as defined by the Federal Trade Commission); and
(D) automobile medical insurance to the extent that it
relates to medical benefits (as defined by the Federal Trade
Commission).
(5) The term ``health carrier'' means a person that
contracts or offers to contract on a risk-assuming basis to
provide, deliver, arrange for, pay for or reimburse any of
the cost of health care services unless the person assuming
the risk is accepting the risk from a duly licensed health
carrier.
(6) The term ``insured'' means a party named on a policy,
certificate, or health benefit plan as the person with legal
rights to the benefits provided by the policy, certificate,
or health benefit plan. For group insurance, such term
includes a person who is a beneficiary covered by a group
policy, certificate, or health benefit plan.
(7) The term ``insurer'' means any person, reciprocal
exchange, interinsurer, Lloyds insurer, fraternal benefit
society, or other legal entity engaged in the business of
insurance, including agents, brokers, adjusters, and third
party administrators. The term also includes health carriers,
health benefit plans, and life, disability, and property and
casualty insurers.
(8) The term ``policy'' means a contract of insurance,
certificate, indemnity, suretyship, or annuity issued,
proposed for issuance or intended for issuance by an insurer,
including endorsements or riders to an insurance policy or
contract.
(9) The term ``subject of abuse'' means a person to whom an
act of abuse is directed, a person who has had prior or
current injuries, illnesses, or disorders that resulted from
abuse, or a person who seeks, may have sought, or should have
sought medical or psychological treatment for abuse,
protection, court-ordered protection, or shelter from abuse.

SEC. 3. DISCRIMINATORY ACTS PROHIBITED.

(a) In General.--No insurer or health carrier may, directly
or indirectly, engage in any of the following acts or
practices on the basis that the applicant or insured, or any
person employed by the applicant or insured or with whom the
applicant or insured is known to have a relationship or
association, is, has been, or may be the subject of abuse:
(1) Denying, refusing to issue, renew or reissue, or
canceling or otherwise terminating an insurance policy or
health benefit plan.
(2) Restricting, excluding, or limiting insurance or health
benefit plan coverage for losses as a result of abuse or
denying a claim incurred by an insured as a result of abuse,
except as otherwise permitted or required by State laws
relating to life insurance beneficiaries.
(3) Adding a premium differential to any insurance policy
or health benefit plan.
(4) Terminating health coverage for a subject of abuse
because coverage was originally issued in the name of the
abuser and the abuser has divorced, separated from, or lost
custody of the subject of abuse or the abuser's coverage has
terminated voluntarily or involuntarily and the subject of
abuse does not qualify for extension of coverage under part 6
of subtitle B of title I or the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1161 et seq.) or 4980B of the
Internal Revenue Code of 1986. Nothing in this paragraph
prohibits the insurer from requiring the subject of abuse to
pay the full premium for the subject's coverage under the
health plan. The insurer may terminate group coverage after
the continuation coverage required by this paragraph has been
in force for 18 months if it offers conversion to an
equivalent individual plan. The continuation of health
coverage required by this paragraph shall be satisfied by any
extension of coverage under part 6 of subtitle B of title I
or the Employee Retirement Income Security Act of 1974 (29
U.S.C. 1161 et seq.) or 4980B of the Internal Revenue Code of
1986 provided to a subject of abuse and is not intended to be
in addition to any extension of coverage provided under part
6 of subtitle B of title I or the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1161 et seq.) or 4980B of the
Internal Revenue Code of 1986.
(b) Use of Information.--
(1) In general.--No insurer may use, disclose, or transfer
information relating to an applicant's or insured's abuse
status or abuse-related medical condition or the applicant's
or insured's status as a family member, employer or
associate, person in a relationship with a subject of abuse
for any purpose unrelated to the direct provision of health
care services unless such use, disclosure, or transfer is
required by an order of an entity with authority to regulate
insurance or an order of a court of competent jurisdiction or
by abuse reporting laws. Nothing in this paragraph shall be
construed as limiting or precluding a subject of abuse from
obtaining the subject's own medical records from an insurer.
(2) Authority of subject of abuse.--A subject of abuse, at
the absolute discretion of the subject of abuse, may provide
evidence of abuse to an insurer for the limited purpose of
facilitating treatment of an abuse-related condition or
demonstrating that a condition is abuse-related. Nothing in
this paragraph shall be construed as authorizing an insurer
or health carrier to disregard such provided evidence.

SEC. 4. REASONS FOR ADVERSE ACTIONS.

An insurer that takes any adverse action relating to any
plan or policy of a subject of abuse, shall advise the
subject of abuse applicant or insured of the specific reasons
for the action in writing. Reference to general underwriting
practices or guidelines does not constitute a specific
reason.

SEC. 5. LIFE INSURANCE.

Nothing in this Act shall be construed to prohibit a life
insurer from declining to issue a life insurance policy if
the applicant or prospective owner of the policy is or would
be designated as a beneficiary of the policy, and if--
(1) the applicant or prospective owner of the policy lacks
an insurable interest in the insured; or
(2) the applicant or prospective owner of the policy is
known, on the basis of police or court records, to have
committed an act of abuse.

SEC. 6. SUBROGATION WITHOUT CONSENT PROHIBITED.

Except where the subject of abuse has already recovered
damages, subrogation of claims resulting from abuse is
prohibited with the informed consent of the subject of abuse.

SEC. 7. ENFORCEMENT.

(a) Federal Trade Commission.--The Federal Trade Commission
shall have the power to examine and investigate any insurer
to determine whether such insurer has been or is engaged in
any act or practice prohibited by this Act. If the Federal
Trade Commission determines an insurer has been or is engaged
in any act or practice prohibited by this Act, the Commission
may take action against such insurer by the issuance of a
cease and desist order as if the insurer was in violation of
section 5 of the Federal Trade Commission Act. Such cease and
desist order may include any individual relief warranted
under the circumstances, including temporary, preliminary,
and permanent injunctive and compensatory relief.
(b) Private Cause of Action.--An applicant or insured
claiming to be adversely affected by an act or practice of an
insurer in violation of this Act may maintain an action
against the insurer in a Federal or State court of original
jurisdiction. Upon proof of such conduct by a preponderance
of the evidence, the court may award appropriate relief,
including temporary, preliminary, and permanent injunctive
relief and compensatory and punitive damages, as well as the
costs of suit and reasonable fees for the aggrieved
individual's attorneys and expert witnesses. With respect to
compensatory damages, the aggrieved individual may elect, at
any time prior to the rendering of final judgment, to recover
in lieu of actual damages, an award of statutory damages in
the amount of $5,000 for each violation.
______

By Mr. PELL:
S. 1631. A bill to authorize the Secretary of Transportation to issue
a certificate of documentation with appropriate endorsement for
employment in the coastwise trade for the vessel Extreme, and for other
purposes; to the Committee on Commerce, Science, and Transportation.

coastwise trading privileges legislation

Mr. PELL. Mr. President, I am introducing a bill today to direct that
the vessel Extreme, official No. 1022278, be accorded coastwise trading
privileges and be issued a coastwise endorsement under 46 U.S.C. 12106
through 12108.
The Extreme is 70.9 feet in length, 18 feet in breadth, has a depth
of 10.8 feet, and is self-propelled.
The purpose of the legislation I am introducing is to allow the
Extreme to engage in coastwise trade and fisheries of the United
States. When the owners purchased the boat, they were unaware of the
coastwise trade and fisheries restrictions of the Jones Act. They
assumed that there would be no restrictions on engaging the vessel in
such limited operation. Although the vessel was constructed in North
Carolina, it was built for a foreign customer; thus it did not meet the
coastwise license endorsement in the United States. Such documentation
is mandatory to enable the owner to use the vessel for its intended
purpose.
The owners of the Extreme are therefore seeking a waiver of the
existing law because they wish to engage the vessel in limited
commercial use. Their desired intentions for the vessel's use will not
adversely affect the coastwise trade in U.S. waters. If they are
granted this waiver, it is their intention to comply fully with U.S.
documentation and safety requirements.
Mr. President, I ask unanimous consent that the text of the bill and
my statement be printed in the Congressional Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 1631

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

SECTION 1. CERTIFICATE OF DOCUMENTATION.

Notwithstanding section 27 of the Merchant Marine Act, 1920
(46 U.S.C. App. 883),

[[Page S2431]]

section 8 of the Act of June 19, 1886 (24 Stat. 81, chapter
421; 46 U.S.C. App. 289), and sections 12106 through 12108 of
title 46, United States Code, the Secretary of Transportation
may issue a certificate of documentation with appropriate
endorsement for employment in the coastwise trade for the
vessel EXTREME, United States official number 1022278.

____________________