[Congressional Record Volume 142, Number 141 (Thursday, October 3, 1996)]
[Senate]
[Pages S12229-S12230]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             POINT OF ORDER

  Mr. LOTT. Mr. President, I understand that if a point of order were 
raised that the pending FAA conference report exceeds the scope of the 
conference committee, that the Chair would rule that the conferees did 
exceed the scope with respect to the so-called Federal Express 
provision. If the point of order is raised and sustained, the 
conference report would then fall.
  This would mean, as we pointed out earlier, billions of dollars lost 
in construction funds, hundreds of thousands of lost jobs, and a 
significant reduction in air traffic safety. That would be jeopardized.
  Needless to say, the Senate should not let this vital piece of 
legislation be killed on this point of order, and having just had a 
vote of 66 to 31 to cut off the filibuster. In order to facilitate the 
vote, I raise a point of order that the conference report exceeds the 
scope of the conference committee and ask unanimous consent that there 
now be 20 minutes for debate prior to the Chair's ruling, to be equally 
divided between Senators Kennedy and Stevens. Senator McCain will 
participate in that. I have discussed this with Senator Kennedy. He 
understands that I would make this point of order.
  The PRESIDING OFFICER. Is there objection?
  Mr. KENNEDY. Reserving the right to object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. KENNEDY. Reserving.
  The PRESIDING OFFICER. Reserving.
  Mr. KENNEDY. I do not intend to object. I want to point out that the 
rejection of the conference report does not mean the loss of money or 
jobs or safety. If the report is rejected, the Senate can quickly and 
unanimously pass the bill that is at the desk, enacting the FAA bill 
without the Federal Express provision. The House is still in session to 
receive and pass that bill. Having made that point of order, I have no 
objection to the unanimous consent request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. Parliamentary inquiry. I understand there would be the 
debate time which would be followed by a ruling from the Chair.
  The PRESIDING OFFICER. That is correct.
  Mr. LOTT. I yield the floor, Mr. President.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. As I understand it, I have 10 minutes. Is that correct?
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized 
for a period not to exceed 10 minutes.
  Mr. KENNEDY. Mr. President, we are moving toward the conclusion of 
this issue. But this is an extremely important issue, and I would 
invite our colleagues' attention.
  Mr. President, in just a few moments the Chair will rule whether this 
particular provision is inside the scope or outside the scope of the 
conference. I have every expectation that the Chair will rule that it 
was outside the scope of the conference. Then we are going to be asked 
whether we are going to sustain the Chair or overrule the Chair. I 
would like to address that issue and what it means in terms of the 
future of this institution and the future of various conference 
reports.
  Mr. President, I want to remind my colleagues of the long-term 
significance of a vote to overturn the ruling of the Chair on this 
important point. Last year the junior Senator from Texas, Senator 
Hutchison, offered an amendment regarding the Endangered Species Act to 
an appropriations bill. The Chair ruled that the amendment would 
constitute legislation on an appropriations bill, but the body 
overturned the ruling of the Chair.

  That vote set a precedent. As a result of that vote, a point of order 
that an amendment constitutes legislation on an appropriations bill is 
no longer available to Senators. To pass that single amendment, the 
Senate gave up an important aspect of our rules, one that has served to 
protect the rights of all Members of this body. The point of order 
before us right now provides an even more important protection to all 
Members.
  The rule that a conference committee cannot include extraneous matter 
is central to the way that the Senate conducts its business. When we 
send a bill to conference we do so knowing that the conference 
committee's work is likely to become law. Conference reports are 
privileged. Motions to proceed to them cannot be debated, and such 
reports cannot be amended.
  So conference committees are already very powerful. But if conference 
committees are permitted to add completely extraneous matters in 
conference, that is, if the point of order against such conduct becomes 
a dead letter, conferees will acquire unprecedented power. They will 
acquire the power to legislate in a privileged, unreviewable fashion on 
virtually any subject. They will be able to completely bypass the 
deliberative process of the Senate.
  Mr. President, this is a highly dangerous situation. It will make all 
of us less willing to send bills to conference and leave all of us 
vulnerable to passage of controversial, extraneous legislation any time 
a bill goes to conference.
  I hope the Senate will not go down this road. Today the narrow issue 
is the status of one corporation under the labor laws. But tomorrow the 
issue might be civil rights, States' rights, health care, education, or 
anything else. It might be a matter much more sweeping than the labor 
law issue that is before us today.
  So for this vital institutional reason, I strongly urge the Senate to 
uphold the ruling of the Chair on the point of order. This vote is not 
about the FAA, and it is not even about Federal Express; it is a vote 
about whether this body is going to be governed by a neutral set of 
rules that protect the rights of all Members, and by extension, the 
rights of all Americans. If the rules of the Senate can be twisted and 
broke and overridden to achieve a momentary legislative goal we will 
have diminished the institution itself.

  The PRESIDING OFFICER. The Chair recognizes the Senator from Alaska.
  Mr. STEVENS. Mr. President, this is a rather difficult situation. We 
have just passed, recently, a Defense appropriations bill. I was the 
chairman of that conference. Before it was over, we had a whole series 
of other bills, a series of legislative items. It was not necessary to 
raise a point of order. Everybody knew we exceeded the scope of the 
conference.
  I ask any chairman of a conference if he or she has ever really been 
totally restricted by this rule? This is an extraordinary time where we 
are in the last hours of this Congress. When the leader became aware 
that Senator Kennedy was going to raise this point of order, the leader 
determined to raise it himself. I take it that having done that, there 
is no question this is a rather significant occasion. I hope it will be 
a rather narrow precedent.
  I point out to the Senate that this provision is not the only matter 
that exceeds the scope of the conference. We had to include, at the 
administration's request, special authority for the executive branch to 
purchase and deploy explosive detection devices. We put in here the 
provisions that pertain to the rights of survivors of victims of air 
crashes. We put in provisions requiring passenger screening companies 
to be certified by the FAA. That is not required under any existing 
law. We put

[[Page S12230]]

in restrictions on underage pilots, following the one disaster that 
involved a young girl who was a pilot. We put in a provision requiring 
the FAA to deal with structures that interfere with air commerce.
  My point is, as we get to the end of a session, we, of necessity, 
include in a bill extraneous matters totally beyond the scope. We know 
they are beyond the scope. As the chairman of the Defense 
Appropriations Committee, I knew all those items we brought to the 
floor earlier this week were beyond the scope of the conference, but we 
did not anticipate anyone would raise a point of order.
  Anticipating that Senator Kennedy would bring this point of order 
before the Senate, the leader made this point of order. I ask the 
Senate to keep in mind this will be a rather limited precedent, in my 
opinion. I do not know whether the Chair will agree with me, but 
clearly when you get to the end of a Congress some things have to be 
done. We did not have time to take up separate bills. We held a hearing 
on the bill in the Senate Commerce Committee dealing with the rights of 
victim-survivors of air disasters. They pleaded with us to include that 
bill in this legislation. We have done so.
  In other words, this point of order is not only valid, in my 
judgment, against the amendment offered by Senator Hollings, but 
against the other provisions where we have exceeded the scope in 
various matters on this bill. I ask the Senate, when the time comes to 
vote, to overrule the Chair. It will not be debatable, but I clearly 
expect a ruling from the Chair that this report does exceed the scope 
of the conference under the rules and, in these circumstances, I ask 
that the ruling of the Chair be overturned.
  I yield to Senator McCain.
  Mr. McCAIN. Mr. President, I yield such time as remains to the 
Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, with respect to this particular point of 
order, it would not set any precedent relative to anything dealing with 
the merits of the matter. It is dealing, once again, basically with a 
fundamental mistake made in the drafting of a measure that was caught 
some 2 months later, never discussed, never voted on and, of course, 
there were no hearings, or what have you.
  So what we have done is taken this opportunity on a very germane 
matter, Federal Express is the sixth largest airline in the country, 
and brought in this particular correction. It has nothing to do with 
the merits of anything and no precedent will be set when we overrule 
this Chair.

  Mr. President, I can tell you categorically, if this kind of a point 
of order was made on Monday, we would have had to close down the 
Government. You can go down and list the various things--$249.8 million 
emergency appropriations for counterterrorism that was not in the bill 
or in the conference. The measure under discussion here was at least in 
the conference. The FBI with $60 million, the Prevention Council, 
various appropriations for the EDA, the SBA, I could go down the list.
  I am confident I can get support now when I remind the distinguished 
Senator from Massachusetts--the Massachusetts Biotechnology Research 
Institute, I am constantly getting a little card from my distinguished 
friend, and I love to do it. He said, you have to take care of me up 
there in Boston, and I said, I am glad to do it. It was not in either 
the House or the Senate, but I think we can get it in. We do that. I 
hope he can vote with me on this particular overriding of the Chair's 
ruling.
  Mr. STEVENS. Mr. President, on another matter, I announce we will 
have a Governmental Affairs Committee meeting as soon as this vote 
starts in S-128 to consider reporting a nomination at the request of 
the administration, for the Administrator of the General Service 
Administration, and other nominations. I ask unanimous consent that be 
in order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, I will not delay the resolution of this 
issue, but the issue is not germaneness. That is not the issue, whether 
this is germane. The issue is whether this material is outside the 
scope of what was sent to the Congress in the House and the Senate. 
That is the issue.
  Today, it is a labor provision. Tomorrow, it may be water in the 
West, it may be land in the West, it may be civil rights, it may be 
health care, it may be any other issues which Members have some 
interest in. There is no such thing as a narrow precedent. We have had 
the precedent that was established about legislation on an 
appropriation by Kay Bailey Hutchison. That has changed.
  Certainly, the rules that govern this institution for the better part 
of my service in the U.S. Senate--now we are talking about a very 
significant and important difference--whether these matters are outside 
the scope. That is the issue, not whether it is germane or not germane, 
but whether it is outside the scope. The House Parliamentarian ruled it 
was outside the scope, and that is why the House of Representatives had 
to have a separate vote.
  Now we are going to have a judgment about whether it is inside the 
scope or outside the scope. If the judgment is made that it is inside, 
I hope that would support the Chair. If it was made that it was 
outside, that we would support the Chair as well. It reflects, and will 
reflect for years to come, the whole basic institutional integrity of 
this body and how it will consider conference reports into the future. 
It is very important, significant, and powerful.
  How much time remains?
  The PRESIDING OFFICER. The Senator from Massachusetts has 4 minutes 
remaining.
  Mr. KENNEDY. I yield such time as the Senator may consume.
  Mr. FEINGOLD. I want a moment to say a word about the point-of-order 
issue. A point was made by the Senator from South Carolina, I believe, 
that the same type of point of order could have been raised with regard 
to the continuing resolution earlier this week. I have not examined the 
issue closely, but I imagine that is true. But we should reflect a 
moment on the concept of what that was about versus the willingness of 
this body, perhaps, to overturn its own rules on something that is so 
specific to one corporation that it seems almost astonishing.
  To what extent are we going to go as a body in the future in changing 
our rules, undoing our rules, overruling a point of order, to 
accommodate one provision that only has to do with one matter? I think 
there is a huge difference. I am not even sure it was appropriate with 
regard to the continuing resolution. I happen to have voted against it 
in part for that reason.
  Surely, for us to start engaging in overruling points of order to 
benefit the needs of one corporation to try to overturn what is a 
continuing litigation or to affect the results of continuing litigation 
is a very troubling precedent for this body, as the Senator from 
Massachusetts has indicated.
  I thank the Chair.

                          ____________________