[Congressional Record Volume 143, Number 30 (Tuesday, March 11, 1997)]
[House]
[Pages H822-H828]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                ANNOUNCEMENT BY THE SPEAKER PRO TEMPORE

  The SPEAKER pro tempore. (Mr. Goodlatte). The Chair would remind all 
Members to refrain from the use of profanity in their speech on the 
floor.
  Mr. CRANE. Mr. Speaker, I yield 2 minutes to our distinguished 
colleague, the gentleman from Louisiana [Mr. Tauzin].
  (Mr. TAUZIN asked and was given permission to revise and extend his 
remarks.)
  Mr. TAUZIN. Mr. Speaker, let me say no one needs to be beamed up on 
this vote. This is a vote to confirm not only the appointment of 
Charlene Barshefsky, who is now our Deputy Trade Representative, to the 
Trade Representative, but also to pass a waiver that is necessary for 
that confirmation to be complete.
  I want to first congratulate her on a near unanimous confirmation in 
the Senate and the near unanimous vote in the Senate on behalf of this 
resolution.
  Let me point out that Charlene Barshefsky was already at USTR as 
Deputy Trade Representative when the law in question was passed last 
year. So this grandfathering is in fact a recognition of her already 
and continuous service at the USTR.
  Let me also state that as chairman of the Subcommittee on 
Telecommunications and Trade of the Committee on Commerce, we have all 
been extraordinarily impressed with the caliber of service that this 
ambassador has already provided to this country. She has worked 
cooperatively with our committee in keeping us informed and interacting 
with us throughout all the WTO negotiations in Geneva that led to the 
successful passage of the recent agreement in Geneva on 
telecommunications and opening up those markets all over the world to 
U.S. investment.
  That action alone is going to create opportunities for American jobs 
and businesses throughout the world in telecommunications. It is 
patterned very much after the 1996 Telecommunications Act that this 
House and the Senate so unanimously joined in just 1996 to create an 
open market for the United States in telecommunications.

[[Page H823]]

  I look forward as chairman of the subcommittee very soon to receiving 
the testimony of Ms. Barshefsky before our subcommittee, in not only 
reporting on that successful negotiation of which we are all so proud, 
but on the continuing efforts to bring other countries in with new and 
improved offers so that we can continue to open up markets for 
telecommunications services throughout the world for American 
businesses and American jobs. I urge the adoption of this resolution.
  Mr. RANGEL. Mr. Speaker, I have no further requests for time.
  Mr. CRANE. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in support of Senate Joint Resolution 5 in the 
nomination of Ambassador Charlene Barshefsky to serve as U.S. Trade 
Representative. I have had the pleasure of working with Ambassador 
Barshefsky over the last few years. I cannot say enough about her 
toughness, her tenacity and her aggressive advocacy on behalf of U.S. 
interests.
  I know Ambassador Barshefsky is tough because the companies in my 
district have benefited from her toughness. The Eighth Congressional 
District of Illinois, my district, is home to some of the leading high-
technology companies in the country, and they have gained market share, 
increased their export sales, and hired new workers in part due to 
Ambassador Barshefsky's tenacity. It is because of her toughness that 
the cellular phone market in Japan is now more open than ever, that 
China has signed a rigorous agreement protecting intellectual property 
rights, and that Motorola, to take just one example from my district, 
has gained greater access to the Chinese market.
  I have seen her in action. A year ago Ambassador Barshefsky started 
building support among the Quad nations for a landmark information 
technology agreement. At the WTO ministerial meeting in Singapore last 
December, I watched her work around the clock to hold together an 
alliance and put in place an unprecedented market-opening agreement. It 
was an honor and a pleasure to see her rolling up her sleeves, getting 
the nitty-gritty detail and coming out with a superior deal. She does 
not give up and she does not give in. I am very hopeful that under her 
leadership at USTR we would be able to pass fast-track legislation that 
would permit the negotiation of further market-opening initiatives.
  It has been a real pleasure to work with Ambassador Barshefsky in 
large part because of her rare ability to reach across party lines and 
work with Members from both sides of the aisle to craft good deals that 
best serve our companies and our workers. Good jobs and a strong 
economy are American goals, not Republican or Democrat goals. 
Ambassador Barshefsky helps us reach those goals together by putting 
aside politics and hammering out good policy that opens markets, 
increases exports, creates jobs and strengthens the American economy so 
that we can remain the world's most competitive Nation into the next 
century and beyond.
  Mr. Speaker, I agree with the gentleman from Texas [Mr. Archer], 
chairman of the Committee on Ways and Means, that we should not be 
forced to consider a waiver today because the underlining provision 
that we seek to waive is ill-advised and should not be in place. I 
would like to place in the Record a resolution and report recently 
adopted by the American Bar Association which clearly and cogently set 
forth the arguments in opposition to the preemployment restrictions 
imposed by the underlying provision.
  Mr. Speaker, I strongly support the nomination of Ambassador 
Barshefsky as U.S. Trade Representative and urge my colleagues to vote 
for the waiver on Senate Joint Resolution 5.

  American Bar Association Section of International Law and Practice 
                Recommendation to the House of Delegates


                             recommendation

       Be it resolved, That the American Bar Association urges the 
     Government of the United States to proceed as follows:
       I. Congress should avoid statutory provisions that 
     disqualify senior executive or judicial appointees on the 
     basis of clients they have previously represented.
       II. Congress and the Administration should continue to 
     utilize traditional mechanisms (including the Senate's power 
     of confirmation), rather than special pre- or post-employment 
     rules, to ensure that senior executive and judicial positions 
     are filled only by highly qualified persons who will fulfill 
     the responsibilities of their positions with complete 
     integrity.
       III. Ethics-in-government rules, whether addressed to pre- 
     or post-government employment activities, should not single 
     out foreign policy or trade functions for special, 
     restrictive treatment. Congress should repeal the 1995 
     amendments to 18 U.S.C. Sec. 207 and 19 U.S.C. Sec. 2171(b), 
     whose effect is to restrict the pre- and post-employment 
     activities of U.S. Trade Representatives (``USTRs'') and 
     Deputy USTRs on behalf of foreign interests, and should not 
     extend those provisions to cover other senior government 
     positions.
                                  ____


  American Bar Association Section of International Law and Practice 
                    Report to the House of Delegates


                            i. introduction

       On July 24, 1995, while debating the Lobbying Disclosure 
     Act of 1995 (``LDA''),\1\ the Senate accepted an amendment 
     creating a new restriction on who could serve as United 
     States Trade Representative (``USTR'') or Deputy USTR.\2\ 
     Specifically, the statute defining the positions of USTR and 
     Deputy USTR, 19 U.S.C. Sec. 2171(b), was amended to 
     disqualify from eligibility anyone who at any time in the 
     past had directly represented, aided or advised a foreign 
     government or political party in a trade negotiation or trade 
     dispute with the United States. A related section of the LDA 
     created new restrictions on the post-employment conduct of 
     persons who have served as USTR or Deputy USTR. Prior law had 
     contained a special restriction, enacted in 1992, against a 
     former USTR's representing, aiding or assisting any foreign 
     government within three years of having served as USTR.\3\ 
     The LDA extended the ban's duration to a lifetime ban and its 
     coverage to include Deputy USTRs.
---------------------------------------------------------------------------
     Footnotes at end of article.
---------------------------------------------------------------------------
       The Senate accepted these two provisions (hereinafter the 
     ``USTR Amendment,'' reproduced in full at Appendix I to this 
     Report) virtually without debate, and the provisions passed 
     the House after some unsuccessful attempts to expand their 
     reach. The President signed the Lobbying Disclosure Act, 
     including the USTR Amendment, while recognizing the Justice 
     Department's concern that the new pre-government employment 
     restrictions may unconstitutionally impinge on the 
     President's appointments power. In 1996, more bills were 
     introduced to expand these restrictions to other government 
     officials, but none were enacted.
       The American Bar Association (``ABA'') urges repeal of the 
     USTR Amendment. While both the pre- and post-employment 
     restrictions are objectionable, as discussed below, it is the 
     pre-employment disqualification that raises the most serious 
     issues, and it is this provisions that most urgently should 
     be repealed. The provision sets a dangerous precedent for 
     limiting the availability of qualified candidates to serve in 
     the U.S. Government. It automatically disqualifies potential 
     nominees solely based on a prior relationship with a 
     particular type of client. Such a rule, which effectively 
     equates an advocate's personal views with those of his or her 
     client, reflects an unwarranted and incorrect view of the 
     lawyer/client relationship, especially in view of the 
     ethical obligations of lawyers and the constitutionally-
     recognized right to counsel. In addition, such a rule 
     takes no account of the nature, length, significance or 
     contemporaneity of the relationship with the former 
     client. With regard to the new lifetime post-employment 
     restrictions for USTRs and Deputy USTRs, there has been no 
     demonstration that such a ban is needed to address any 
     real problem, and there are compelling reasons not to 
     restrict the post-employment conduct of trade negotiators 
     in such an unusual and severe manner.
       In sum, the Report supports the accompanying ABA resolution 
     urging that the Congress: avoid enacting disqualifications 
     for service in the U.S. Government which presume that lawyers 
     and other advisors take on the views of their clients; avoid 
     singling out foreign policy and trade functions for extra-
     restrictive pre- or post-government employment rules; and 
     promptly repeal the USTR Amendment.


                  II. THE PRE-EMPLOYMENT RESTRICTIONS

       The new pre-employment restriction is unique among 
     provisions in the U.S. Code creating ``primary officers'' of 
     the U.S. Government (i.e., positions requiring nomination by 
     the President and the advice and consent of the Senate). Of 
     the hundreds of appointees in this category, only USTR and 
     Deputy USTR candidates can be disqualified based solely on 
     the identity of their former clients.
       There is a serious constitutional objection to this new 
     pre-employment restriction, in that it infringes on the 
     President's appointments power. The ABA notes, but does not 
     rest its concerns on, that objection. The new pre-employment 
     restriction is also troubling on several policy grounds: (1) 
     it arbitrarily limits the flexibility of the President to 
     choose and the Senate to confirm, the best possible person 
     for a particular government position; (2) it presumes, 
     without justification, that a person advising a foreign 
     government personally embraces and retains views antithetical 
     to those of the U.S. Government; (3) it creates perverse 
     anomalies unconnected to any legitimate interest in

[[Page H824]]

     ensuring the loyalty of senior appointees; and (4) comparable 
     disqualifications could easily be enacted, based on the same 
     flawed rationale, for other government positions.

      A. The New Disqualification Is of Doubtful Constitutionality

       As mentioned above, there is virtually no legislative 
     history accompanying the USTR Amendment and thus, unlike the 
     debate surrounding provisions restricting post-government 
     employment activities, no discussion by the Congress of the 
     legality of the new pre-employment restriction. As also noted 
     above, before the USTR Amendment there were no statutory 
     provisions disqualifying any class of persons from service as 
     USTR or Deputy USTR.
       It is well accepted that the Congress has the 
     constitutional responsibility for creating the various 
     government offices not specifically enumerated in the 
     Constitution.\4\ Further, it is well accepted that the 
     Congress can attach qualifications to those government 
     offices:
       While Congress may not appoint those who execute the laws, 
     it may lay down qualifications of age, experience and so on. 
     Sometimes these qualifications significantly narrow the field 
     of choice. However, any Congressionally imposed 
     qualifications must have a reasonable relation to the office. 
     Otherwise, Congress would be, in effect, creating the 
     appointing power in Congress, rather than in the President.
       Congress may, in short, create the office but may not 
     appoint the officer. To distinguish between these two powers, 
     the Court has developed a germaneness test.\5\
       The Department of Justice articulated just such serious 
     constitutional concerns with the USTR Amendment as it relates 
     to the President's appointments power:
       The Department of Justice has long opposed broad 
     restrictions on the President's constitutional prerogative to 
     nominate persons of his choosing to senior executive branch 
     positions. The restriction in the bill is particularly 
     problematic because it operates in an area in which the 
     Constitution commits special responsibility to the President, 
     who ``is the constitutional representative of the United 
     States in its dealings with foreign nations.'' See, e.g., 
     United States v. Louisiana, 363 U.S. 1, 35 (1960). The 
     officers in question perform diplomatic functions as the 
     direct representative of the President, a fact that Congress 
     itself has recognized by providing that they should enjoy the 
     rank of ambassador. 19 U.S.C. Sec. 2171(b). Regardless of 
     whether the President would, as a policy matter, be willing 
     to accept this particular restriction, Congress would exceed 
     its constitutionally assigned role by setting such a 
     broad disqualification. See, e.g., Civil Service 
     Commission, 13 Op. Att'y Gen. 516, 520-21 (1871).\6\
       After passage of the Lobbying Disclosure Act by both the 
     Senate and the House, Justice continued to express serious 
     concerns about the new pre-employment provision, but did not 
     recommend that the President veto the Act on this basis.\7\ 
     The President in signing the bill noted the constitutional 
     issue.\8\
       The new disqualification raises serious separation of 
     powers questions. When such provisions are enacted without 
     hearings, with virtually no floor debate or legislative 
     history, and despite constitutional objections noted by the 
     Department of Justice, the justifications underlying them 
     should be carefully examined. Where such provisions are not 
     only constitutionally suspect but also premised on a mistaken 
     and troublesome view of the lawyer-client relationship, they 
     should be removed.

B. It Is In The Public Interest for the President to Be Free to Appoint 
     the Most Highly Qualified Nominees, Regardless of Past Clients

       The new disqualification rules out many qualified 
     individuals who could otherwise serve the nation effectively 
     as senior trade negotiators. The best qualified candidate for 
     a particular USTR or Deputy USTR appointment may be someone 
     who has some experience advising foreign clients. (We note, 
     in this regard, the adage that it is useful for a prosecutor 
     to have experience serving as defense counsel.) Yet, the USTR 
     Amendment would prevent such a person from serving.
       While it is wrong to presume a link between advocacy and 
     personal belief, it is even more wrong to freeze such a 
     presumption into a statute. Categorical and difficult-to-
     amend statutory disqualifications cannot take into account 
     the nuances of a particular candidate's history. These are 
     precisely the factors that the President should weigh in 
     choosing a nominee and the Senate should review in the 
     confirmation process.
       The new disqualification does not only restrict the 
     President's appointments power. It also represents a failure 
     to respect the Senate's constitutional role to consider, and 
     where appropriate disapprove, the President's nominees. The 
     Senate should preserve its prerogative to consider a 
     particular nominee's record of advocacy for foreign clients, 
     or foreign government clients, in the confirmation process 
     and to determine whether anything in that record is 
     sufficiently troubling to justify withholding 
     confirmation.\9\

 C. The Unstated Premise of the New Disqualification--That An Advocate 
  is Either Tainted By or Continuously Captive to the Interests of a 
     Former Client--Is Inconsistent with U.S. Traditions and Values

       During the 1974 Senate consideration of legislation to 
     establish the office of special prosecutor and to 
     depoliticize the position of Attorney General, former Supreme 
     Court Justice Arthur Goldberg described the attorney-client 
     relationship in the following manner: \10\
       One of the traditional concepts applicable to the bar at 
     large is too often overlooked in senatorial confirmation 
     hearings involving nominees for Attorney General, Assistant 
     Attorney General, Deputy, and U.S. Attorneys. That concept--
     which I fear, Mr. Chairman, in the day of the organization 
     man and big interests which lawyers are called upon to serve, 
     is too often overlooked--is that the bar is independent, that 
     it is not a servant of a client, but services a client; and 
     that the men and women of the bar are independent and give 
     counsel and advise independently. The principal law 
     enforcement officers of the Government should be lawyers in 
     that sense, . . .. Any nominee of a different mind or 
     character should not be confirmed by the Senate.
       For just such reasons, it is widely accepted that a lawyer 
     should not be ineligible for nomination as a judge solely 
     because of past representation of, for example, criminal 
     defendants.
       The USTR Amendment, and the proposals to extend the 
     disqualification so that it applies to other government 
     positions, adopts a different and inaccurate view of the 
     relationship between advocates and their clients. It is wrong 
     to assume that an outside adviser, such as a lawyer, 
     necessarily concurs with the views or actions of his or her 
     client, or will apply those views in carrying out the duties 
     of a public office. Certainly, if someone represents more 
     than one group of clients--for example, foreign governments 
     in some matters and U.S. corporations in others--it cannot 
     fairly be presumed that the foreign government representation 
     determines or more accurately represents the person's own 
     beliefs.
       When an individual leaves the private sector and becomes a 
     government official, he or she takes on totally new 
     responsibilities and must move beyond all prior client 
     interests--those of domestic and foreign clients alike. Other 
     than preserving their confidences, an appointee has no 
     continuing obligation to prior clients. The USTR Amendment 
     wrongly ignores this aspect of public service.
       Reflecting its inconsistency with U.S. traditions and 
     values, the new disqualification is utterly without precedent 
     in the U.S. Code. Appendix 2 to this Report identifies 126 
     statutory provisions, relating to U.S. Government civilian 
     offices, that impose qualifications in addition to Senate 
     confirmation.\11\ As shown there, those 126 provisions fall 
     into seven groupings: 3 provisions requiring that appointees 
     be U.S. citizens; 19 provisions requiring that appointees be 
     civilians at the time of their appointment; provisions that 
     establish minimum representation on a board or commission of 
     certain constituent groups; provisions requiring technical 
     expertise; 6 provisions imposing ``cooling off'' periods to 
     ensure civilian control of the military; 7 provisions 
     imposing other temporary ``cooling off'' periods (e.g., 
     sitting members of the U.S. Postal Service Board of Governors 
     may not simultaneously be representatives of ``special 
     interests using the Postal Service''); and 2 provisions 
     containing permanent, uncurable, disqualifications. Of these, 
     only the USTR disqualification is based on advocacy 
     activities. The other provides that members of the permanent 
     board of the Federal Agriculture Mortgage Corporation shall 
     not be, or have been, officers or directors of a financial 
     institution.

         D. The New Disqualification Creates Perverse Anomalies

       Before the USTR Amendment, there were no statutory 
     qualifications upon who could be nominated and confirmed to 
     serve as USTR or Deputy USTR. Not even U.S. citizenship, or a 
     record free of criminal behavior, was (or is) statutorily 
     required. Thus, the effect of the new pre-government 
     employment restriction is that a non-citizen, a felon or even 
     a juvenile could in principle be nominated and confirmed as 
     USTR, while a highly skilled trade specialist who briefly 
     advised a foreign government twenty years ago could not.
       Such a rule could also deprive the nation of highly skilled 
     and effective public servants. Had it been in effect at the 
     time, the USTR Amendment might have disqualified one of 
     President Reagan's USTRs, Dr. Clayton K. Yeutter, for 
     activities that apparently did not dominate his pre-
     government professional work.\12\ Extending the principle, as 
     some have proposed, to representing, aiding or advising 
     foreign private companies might have disqualified 
     President Bush's USTR, Carla Hills.\13\ Again, to the 
     extent that questions arise in a particular case about the 
     overlap between prior advocacy efforts and the advocate's 
     own current beliefs, such questions can be effectively 
     explored during the Senate confirmation process.
       Broad and seemingly arbitrary interpretations of the USTR 
     Amendment are possible given the lack of definitions, in 
     either the statute or the legislative history, for crucial 
     and open-ended terms such as, but not limited to, ``aided'' 
     and ``advised.'' For example, if a Senator meets with foreign 
     government officials in an attempt to find a mutually 
     advantageous solution to a particular bilateral trade 
     dispute, it could be argued that he or she has ``aided'' or 
     ``advised'' the foreign government in such a manner as to 
     trigger disqualification from future service as USTR. On the 
     other hand, it has been observed that the USTR Amendment 
     would not

[[Page H825]]

     prevent appointment of a corporate executive who, in order to 
     increase profits at his ailing company, negotiates an 
     enormous tax subsidy from a foreign government in order to 
     move parts of his factory abroad and subsequently fires 
     hundreds of his U.S. workers.\14\

  E. The New Disqualification Sets an Undesirable Precedent for Other 
                          Government Positions

       A significant danger of the USTR Amendment is that the same 
     principle could be applied to other government positions 
     involving disciplines other than international trade 
     negotiation. Persons could be disqualified, by statute, from 
     being federal judges because they had at some time in their 
     past represented criminal defendants, even if their 
     representations had been the result of occasional court 
     appointment. Positions at the Environmental Protection Agency 
     could be conditioned, by statute, on never having 
     represented, aided or assisted clients in favor of, or 
     opposed to, toxic dump cleanup. Positions at the Department 
     of Energy could be conditioned, by statute, on never having 
     represented, aided or assisted clients in favor of, or 
     opposed to, offshore drilling. Positions at the Consumer 
     Product Safety Commission could be conditioned, by statute, 
     on never having represented, aided or assisted clients 
     supporting, or opposing, specific product liability actions. 
     More broadly, anyone who has given advice to entities in a 
     regulated industry could be disqualified from putting his or 
     her expertise to use as a regulator in that industry. Such a 
     rule would dramatically restrict the pool of qualified 
     regulators.
       The ABA historically has advanced the view that rigid 
     (i.e., statutory) pre-employment restrictions for government 
     appointments should be avoided. For example, in the wake of 
     the perceived politicization of Justice Department functions 
     during the Watergate period, during consideration of what 
     eventually became the Ethics in Government Act of 1978, the 
     ABA was asked to comment on possible eligibility restrictions 
     for senior law enforcement positions:
       Question. There have been many recommendations to set the 
     statutory requirements for appointees to the Offices of 
     Attorney General, Deputy Attorney General, Director of the 
     FBI, and others. Do you generally believe it is a good idea 
     to set rigid eligibility standards by statute, considering 
     that many highly qualified individuals would be arbitrarily 
     excluded from consideration by such standards? If so, what 
     sorts of standards would you suggest?
       Answer. The ABA has not suggested rigid standards for 
     appointment to any of the above-mentioned positions nor does 
     it believe rigid standards are advisable.\15\
       The USTR Amendment, by contrast, fails the test of narrow 
     drafting and scope. It reaches backward in time without 
     limit, disqualifying otherwise qualified candidates by reason 
     of any covered representation or assistance at any earlier 
     point in their careers. The amendment reaches candidates who 
     agreed to assist foreign governments with no idea that doing 
     so might preclude later public service. The amendment applies 
     not to a carefully circumscribed category of activities, but 
     to any representation or assistance, whether significant or 
     insignificant, to any foreign government on any trade 
     ``negotiation'' or ``dispute'' involving the United 
     States. Finally, the amendment confuses the advocate's 
     required role with his or her personal views.


                 III. THE POST-EMPLOYMENT RESTRICTIONS

         A. Post-Employment Restrictions of General Application

       There have been restrictions on the post-employment 
     activities of various categories of federal workers since 
     1872.\16\ The earliest versions approximating the current 
     provisions were adopted in 1962, as part of an overall 
     revision of the conflict-of-interest statutes.\17\. In short, 
     a full and generally effective array of government-wide post-
     employment restrictions has been in place for many years. 
     Those restrictions, subjected to substantial revision and 
     fine-tuning in the Ethics in Government Act of 1978 \18\ and 
     the Ethics Reform Act of 1989,\19\ include: a lifetime ban on 
     appearing before or communicating with any U.S. Government 
     body on behalf of a party other than the United States, on 
     matters in which the official ``participated personally and 
     substantially'' while a federal employee;\20\ a two-year ban 
     on appearing or communicating with any U.S. Government body 
     on behalf of a party other than the United States on matters 
     that were pending under his or her official responsibility in 
     the year prior to departure from the agency;\21\ a one-year 
     ban for enumerated senior officials on all substantive 
     contact with the former agency on behalf of a party other 
     than the United States, which for Cabinet officers and 
     certain other very senior officials extends to contacts with 
     specified top officers of other agencies as well;\22\ and a 
     one-year ban prohibiting senior officials of all departments 
     and agencies from (i) representing the interests of a foreign 
     government or political party before any agency or department 
     or (ii) aiding or advising a foreign government or political 
     party with the intent to influence a decision of any 
     department or agency.\23\
       The last of these provisions, a special rule against senior 
     officials' representing or advising foreign governments, drew 
     a number of policy and constitutional objections prior to and 
     at the time of its enactment.\24\ This Report does not 
     address the propriety of a broad, government-wide, one-year 
     ban on post-employment activity for foreign governments. It 
     is noteworthy, however, that this provision was justified 
     against due process attack on the ground that it presented no 
     absolute bar to pursuit of employment by covered officials, 
     but ``merely imposed a waiting period'' of one year.\25\
       These post-employment restrictions establish a 
     comprehensive set of rules that apply across the board to 
     federal officials and employees in all agencies and 
     departments. For the most part, these rules appear to have 
     worked successfully.\26\ They apply with full force to USTRs 
     and Deputy USTRs, and thereby provide a solid framework for 
     protecting the public interest in regulating the post-
     employment activity of persons who occupy those positions.

      B. Special Restrictions Placed Upon Senior Trade Negotiators

       Beginning in 1992 and by expansion in the 1995 USTR 
     Amendment, Congress created a special rule that singles out 
     former USTRs and Deputy USTRs for special, more restrictive 
     treatment than other, similarly-situated, former senior 
     officials. Congress did so with virtually no meaningful 
     deliberation or explanation. It is the ABA's view that, in so 
     doing, Congress created a separate category of post-
     employment treatment for the senior U.S. trade officials that 
     cannot be justified and should be eliminated.
       The fist step along this path occurred in 1992, when 
     Congress, as part of an appropriations bill, enacted a new 
     Section 207(f)(2) which lengthened to three years the foreign 
     entity ban as it applied to the USTR.\27\ The Senate report 
     describing this provision contained no meaningful explanation 
     or justification of the longer period.\28\ In signing the 
     bill, President Bush took strong objection, noting that the 
     change had been passed without any public discussion of the 
     merits, without consideration of its relationship to the 
     comprehensive amendments passed in the Ethics Reform Act of 
     1989, and without evaluation of ``the implications of 
     targeting for coverage just one position.'' \29\ President 
     Bush signed the bill because it was a necessary funding 
     measure.
       Continuing this pattern of acting without legislative 
     hearings or development, the 1995 USTR Amendment enlarged 
     this special USTR restriction to a lifetime ban, and expanded 
     the ban to cover Deputy USTRs as well as USTRs. Like the 
     initial 1992 creation of the special post-employment rules of 
     the Ethics in Government Act of 1978 or the Ethics Reform Act 
     of 1989, each of which underwent extensive legislative 
     consideration--the USTR Amendment did so without any 
     meaningful legislative background.
       This action raises serious legal and policy questions. In 
     departing from the ``waiting period'' rationale that underlay 
     the general one-year ban on representation of foreign 
     governments in the Ethics Reform Act of 1989,\30\ the new 
     lifetime ban raises the very constitutional questions that 
     led the Justice Department and other witnesses to express 
     concern during the 1989 reform legislation. One of the bills 
     leading to the 1989 Act contained a lifetime ban on certain 
     high ranking officials representing or advising foreign 
     entities. In hearings on that bill, a Justice Department 
     spokesman agreed that the lifetime ban raised a serious 
     constitutional problem.\31\ Another Justice Department 
     official doubted that reducing the ban to 10 years would 
     remove the constitutional problem.\32\ Commenting on a 
     substitute version of the bill, a spokesperson for Common 
     Cause agreed with shifting away from a lifetime ban on 
     representing foreign governments in favor of a shorter 
     period. While believing that the period for the ban should be 
     longer than for other representations, Common Cause was 
     ``very troubled by a lifetime ban and would not recommend 
     that.'' \33\ Others testified that even a 10-year ban was too 
     long.\34\ The ACLU suggested that ``[a]t the very least such 
     a prohibition should expire if the party controlling the 
     White House changes in the interim.'' \35\
       More importantly, no persuasive rationale has been advanced 
     for applying special rules to senior trade officials. Former 
     USTRs were barred by pre-1992 law, for example: from ever 
     assisting foreign governments in any matter in which they had 
     direct involvement while in government;\36\ for communicating 
     with USTR officials on my policy issue for a period of the 
     one year; \37\ from communicating with USTR officials 
     within two years on any matter that was active within USTR 
     during the last year of the former USTR's service; \38\ 
     and from appearing before any agency, within one year 
     after leaving government, on behalf of a foreign 
     government or political party.\39\
       Taken together, these rules adequately protect against the 
     possibility, and against the appearance of ``influence 
     peddling'' or ``misuse of inside information'' by former 
     trade officials on behalf of foreign interests.
       There are at least three other compelling reasons to repeal 
     the new post-employment restrictions. First, the restrictions 
     could easily hinder advancement of U.S. interests by 
     diminishing the pool of qualified senior trade negotiator 
     candidates. Among the factors cited in discouraging people 
     from public service are increasingly severe post-employment 
     restrictions. Past USTRs and Deputy USTRs have not made a 
     full career of public service; like other senior appointees, 
     they have returned to their communities and their private 
     practices after serving in public office. Qualified 
     candidates may decline to serve if their livelihoods--often 
     after a relatively short period of government service--would 
     thereby by materially jeopardized.

[[Page H826]]

     Second, there has been no documented misconduct by former 
     USTRs or Deputy USTRs which would justify the new, heightened 
     restrictions. Third, there is no principled reason to single 
     out trade negotiators; rather, the new restrictions simply 
     penalize or demonize the representation of foreigners. Other 
     government officials--e.g., the Secretaries of Defense or 
     Transportation, or the Attorney General--could just as easily 
     be subject to the same lifetime ban.
       Meanwhile, there has been absolutely no showing that the 
     general rules applicable to all other government officials 
     insufficiently protect the interests of the United States. 
     The public interest is in having nominees who become public 
     officials adhere to the highest standards while executing the 
     duties of their office. After someone leaves office, the 
     government's interest is properly limited to preventing the 
     misuse of its confidential information and the misuse of 
     influence.\40\


                  IV. CONCLUSIONS AND RECOMMENDATIONS

       For the reasons set out above, it is the view of the ABA 
     that: Congress should avoid statutory provisions that 
     disqualify senior executive or judicial appointees on the 
     basis of clients they have previously represented. Congress 
     and the Administration should continue to utilize traditional 
     mechanisms (including the Senate's power of confirmation), 
     rather than special pre- or post-employment rules, to ensure 
     that senior executive or judicial positions are filled only 
     by highly qualified persons who will fulfill the 
     responsibilities of their positions with complete integrity. 
     Ethics-in-government rules, whether addressed to pre- or 
     post-government employment activities, should not single out 
     foreign policy or trade functions for special, restrictive 
     treatment. Congress should repeal the 1995 amendments to 18 
     U.S.C. Sec. 207 and 19 U.S.C. Sec. 2171(b), whose effect is 
     to restrict the pre- and post-employment activities of U.S. 
     Trade Representatives (``USTRs'') and Deputy USTRs on behalf 
     of foreign interests, and should not extend those provisions 
     to cover other senior government positions.
           Respectfully submitted,

                                               Lucinda A. Low,

                                   Chair, Section of International
                                                 Law and Practice.


                               footnotes

     \1\ Pub. L. No. 104-65, 109 Stat. 691 (1995).
     \2\ See 141 Cong. Rec. S10560-61 (daily ed. July 24, 1995).
     \3\ Pub. L. No. 102-395, 106 Stat. 1873, codified at 18 
     U.S.C. Sec. 207(f)(2).
     \4\ See generally Laurence H. Tribe, American Constitutional 
     Law 244 (2d ed. 1988) (analyzing the wording of Art. II, 
     Sec. 2, cl. 2).
     \5\ John E. Nowak & Ronald D. Rotunda, Constitutional Law 265 
     (5th ed. 1995) (footnotes omitted).
     \6\ Letter from Andrew Fois, Assistant Attorney General, 
     Office of Legislative Affairs, U.S. Department of Justice to 
     the Hon. Henry Hyde, Chairman, House Committee on the 
     Judiciary, concerning S. 1060 [the Senate bill pending before 
     the House] 2-3 (Nov. 7, 1995).
     \7\ Letter from Andrew Fois, Assistant Attorney General, 
     Office of Legislative Affairs, U.S. Department of Justice to 
     the Hon. Alice M. Rivlin, Director, Office of Management and 
     Budget concerning S. 1060 2 (Dec. 18, 1995).
     \8\ See 51 Weekly Compilation of Presidential Documents 2205-
     06 (December 25, 1995).
     \9\ The unwarranted breadth of the new disqualification is 
     demonstrated by the more narrowly drawn alternatives that 
     Congress did not select. Even assuming arguendo that 
     assertive use of the Senate's confirmation authority is 
     insufficient, narrower solutions are available. One is 
     mandatory recusal with penalties for failure to do so, 
     combined with strict reporting of prior activities. See, 
     e.g., 28 U.S.C. Sec. 528 (Justice Department employees). 
     Recent USTR and Deputy USTR nominees have disclosed prior 
     representations, including foreign representations, and have 
     voluntarily recused themselves (temporarily or permanently, 
     as appropriate) with respect to issues involving those 
     particular clients. Hearing to consider nomination of Michael 
     Kantor Before Senate Comm. on Finance, 103rd Cong., 1st Sess. 
     (1993); Nomination of Carla Anderson Hills: Before Senate 
     Comm. on Finance, 101st Cong., 1st Sess. (1989). Nominations 
     of Rufus Hawkins Yerza, Charlene Barshefsky, Walter Broadnex, 
     Avis Lavelle, Jerry Klegner, David Ellwood, Kenneth Apfel, 
     Bruce Vladeck, Hariet Rabb and Jean Hanson: Before Senate 
     Comm. on Finance, 103rd Cong., 1st Sess. (1993). Other trade 
     officials have done likewise. See, e.g., Rick Jenkins, 
     ``Trade Nominations Raises `Revolving Door' Issue,'' 
     Christian Science Monitor at 8 (Jan. 14, 1994). Another 
     alternative is more extensive mandatory reporting of pre-
     employment activities over a set period before Senate 
     confirmation, enhancing the Senate's ability to reject a 
     nominee based on prior activities if it wishes. See, e.g., 
     Hearings on S. 555 (Public Officials Integrity Act of 1977, 
     Blind Trusts and Other Conflict of Interest Matters) Before 
     the Senate Comm. on Governmental Affairs, 95th Cong., 1st 
     Sess. 108-09 (1977) (testimony of Fred Wertheimer, Vice 
     President for Operations, Common Cause). Requiring disclosure 
     of clients is not without its problems. As noted by the ABA 
     in 1977, such a regime could place a professional person in 
     the position of having to violate the confidentiality of a 
     privileged relationship. See Financial Disclosure Act: 
     Hearings on H.R. 1, H.R. 9, H.R. 6954, and Companion Bills 
     Before the Subcommittee on Administrative Law and 
     Governmental Relations of the House Comm. on the Judiciary, 
     95th Cong., 1st Sess. 487, 490 (1977) (testimony of Prof. 
     Livingston Hall and Prof. Herbert S. Miller on behalf of the 
     American Bar Association).
     \10\ Removing Politics from the Administration of Justice: 
     Hearings on S. 2803, S. 2978 Before the Subcommittee on 
     Separation of Powers of the Senate Comm. on the Judiciary, 
     93rd Cong., 2d Sess. 62 (1974).
     \11\ These are all the provisions that could be identified 
     through review of the U.S. Code, 1994 Edition, and Supplement 
     I to that Edition. Some of these provisions are also subject 
     to statutory requirements designed to ensure a balance of 
     political affiliation on Boards and Commissions, e.g., an 
     equal number of Democrats and Republicans on the U.S. 
     International Trade Commission. Additionally, in some cases 
     an office is required by statute to be filled by an existing 
     federal, state or local government official. Appendix II 
     largely ignores such requirements.
     \12\ Dr. Yeutter had served on the board of directors of the 
     Swiss Commodities and Futures Association and had been the 
     first American businessman invited to Japan (in 1982) under a 
     Japanese government program to improve trade relations with 
     the United States. See Hearing on the Nomination of Dr. 
     Clayton K. Yeutter Before the Senate Comm. on Finance, 99th 
     Cong., 1st Sess. 28-29, (1985) (vita submitted on behalf of 
     Dr. Yeutter).
     \13\ According to third-party testimony at the time of her 
     appointment, Ambassador Hills had previously been registered 
     under the Foreign Agents Registration Act as an agent for 
     Daewoo Industrial Co. See Hearing on the Nomination of Carla 
     Anderson Hills Before the Senate Comm. on Finance, 101st 
     Cong., 1st Sess. 32, 51 (1989) (testimony of Anthony 
     Harrigan, President, U.S. Business and Industrial Council).
     \14\ See Donald DeKieffer, ``The 1995 `Irrelevant 
     Qualifications Act' '' Journal of Commerce at 7A (Dec. 30, 
     1996).
     \15\ Watergate Reorganization and Reform Act of 1975: 
     Hearings on S. 495 Before the Senate Comm. on Government 
     Operations, 94th Cong., 1st Sess., pt. 2 at 174 (1976) 
     (testimony of William B. Spann, Jr., President-Elect Nominee 
     of the American Bar Association and Chairman, American Bar 
     Association Special Committee to Study Federal Law 
     Enforcement Agencies). The ABA did recommend limited measures 
     to address perceived problems of politicization of the 
     Department of Justice. See also id. at 270-71, 295, 298.
     \16\ See S. Rep. No. 99-396, 99th Cong., 2d Sess. 13-14 
     (1986); S. Rep. No. 100-101, 100th Cong., 1st Sess. 8-9 
     (1987).
     \17\ Prior provisions had barred former employees from 
     prosecuting claims against the United States for two years 
     after terminating government employment. See H. Rep. No. 748, 
     87th Cong., 1st Sess. 2-4 (1961).
     \18\ Pub. L. No. 95-521, 92 Stat. 1824, 1864-66 (1978).
     \19\ Pub. L. No. 101-194, 103 Stat. 1716-24 (Nov. 30, 1989).
     \20\ 18 U.S.C. Sec. 207(a)(1) (1996).
     \21\ 18 U.S.C. Sec. 207(a)(2).
     \22\ 18 U.S.C. Sec. Sec. 207(c), (d).
     \23\ 18 U.S.C. Sec. 207(f).
     \24\ H. Rep. No. 1068, 100th Cong., 2d Sess. 13 (1988) 
     (regarding H.R. 5043); Post-Employment Conflicts of Interest: 
     Hearings on H.R. 5097 and Related Bills Before the 
     Subcommittee on Administrative Law and Governmental Relations 
     of the House Comm. on the Judiciary, 99th Cong., 2d Sess. 79-
     80 (1986) (testimony of John C. Keeney, Deputy Assistant 
     Attorney General, Criminal Division, Department of Justice, 
     on legislation leading up to the 1989 Act, arguing that post-
     employment restrictions could prohibit representations which 
     were in the national interest). Similar views were forwarded 
     by the ACLU, which maintained that a statute prohibiting the 
     representation of foreign interests regulated political 
     activity and, to be upheld, must withstand strict judicial 
     scrutiny. See Post-Employment Restrictions for Federal 
     Officers and Employees: Hearings on H.R. 2267 and Related 
     Bills Before the Subcommittee on Administrative Law and 
     Governmental Relations of the House Comm. on the Judiciary, 
     101st Cong., 1st Sess. 200, 204-06 (1989). See also Appendix 
     III to this Report.
     \25\ S. Rep. No. 101, 100th Cong., 1st Sess. 14 (1987).
     \26\ The ABA may, of course, have occasion in the future to 
     comment or suggest improvements that would enhance the 
     effectiveness of these rules. That is not the subject of this 
     Report.
     \27\ Departments of Commerce, Justice, and State, the 
     Judiciary, and Related Agencies Appropriations Act, 1993, 
     Section 609, Pub. L. No. 102-395, 106 Stat. 1828, 1873 
     (1992).
     \28\ See S. Rep. No. 102-331, 102d Cong., 2d Sess. 118 
     (1992).
     \29\ 28 Weekly Compilation of Presidential Documents 1874 
     (Oct. 12, 1992) (statement by President George Bush upon 
     signing H.R. 5678).
     \30\ See supra, fn. 25.
     \31\ Integrity in Post Employment Act of 1986: Hearings on S. 
     2334 Before the Senate Comm. on the Judiciary, 99th Cong., 2d 
     Sess. 37-38, 41-43, 66 (1986) (testimony of John C. Keeney, 
     Deputy Assistant Attorney General, Criminal Division, 
     Department of Justice).
     \32\ Id. at 87-88 (testimony of Stephen S. Trott, Assistant 
     Attorney General for the Criminal Division, Department of 
     Justice).
     \33\ See id. at 179 (testimony of Ann McBride, Senior Vice 
     President, Common Cause); Post-Employment Conflicts of 
     Interest: Hearings on H.R. 5097 and Related Bills Before the 
     Subcommittee on Administrative Law and Governmental Relations 
     of the House Comm. on the Judiciary, 99th Cong., 2d Sess. 
     103-04 (1986) (testimony of Ann McBride, Senior Vice 
     President, Common Cause).
     \34\ See id. at 183, 186 (testimony of Norman J. Ornstein, 
     American Enterprise Institute).
     \35\ Hearings on S. 2334 (Integrity in Post Employment Act of 
     1986) Before the Senate Comm. on the Judiciary, 99th Cong., 
     2d Sess. 199 (1986) (testimony of Morton H. Halperin and 
     Jerry J. Berman on behalf of the American Civil Liberties 
     Union).
     \36\ 18 U.S.C. Sec. 207(a)(1) (1989).
     \37\ 18 U.S.C. Sec. 207(c).
     \38\ 18 U.S.C. Sec. 207(a)(2).
     \39\ 18 U.S.C. Sec. 207(f).
     \40\ See Integrity in Post Employment Act of 1986: Hearings 
     on S. 2334 Before the Senate Comm. on the Judiciary, 99th 
     Cong., 2d Sess. 79-80 (1986) (testimony of David H. Martin, 
     Director, Office of Government Ethics). The American Civil 
     Liberties Union (``ACLU'') also opined that the misuse of 
     inside information should be the focus of ethics laws, rather 
     than the identity of the client. Id. at 198 (testimony of 
     Morton H. Halperin and Jerry J. Berman on behalf of the 
     American Civil Liberties Union); Hearings on H.R. 2267 and 
     Related Bills (Post-Employment Restrictions for Federal 
     Officers and Employees) Before the Subcommittee on 
     Administrative Law and Governmental Relations of the House 
     Comm. on the Judiciary, 101st Cong., 1st Sess. 200, 210-11 
     (1989).
  Mr. HILL. Mr. Speaker, I rise today to express my deep concern about 
our action to waive provisions of section 21 of the 1974 Trade Act 
relating to the appointment of the U.S. Trade Representative. As you 
know, Senate Joint Resolution 5 waives the prohibition banning 
individuals who represent or have previously represented foreign 
governments from serving as America's top trade representative.
  Mr. Speaker, the law we are asked to waive today is not some arcane 
law that has been in the books for decades which may have run its time. 
It is a law that was approved only 2 years ago to prevent lobbyists of 
foreign governments from obtaining an appointment to be our chief trade 
negotiator. While I do not doubt

[[Page H827]]

the competency and ability of Ambassador Barshefsky to dedicate her 
best efforts as she has done as the Deputy U.S. Trade Representative, 
her association as a lobbyist for Canada touches a raw nerve in 
Montana.
  Mr. Speaker, the farmers and ranchers of my home State of Montana are 
suspicious of the administration's commitment to ensure that NAFTA 
implementation is fair. To this point, evidence suggests it isn't. The 
Lobby Act says that anyone who has worked against the United States in 
trade negotiations ought to be excluded from U.S. Government service as 
trade representative. When the President signed the Lobby Act he 
singled out this provision for praise. Without being too political, it 
is an unusual request to waive the law just enacted. Though the issue 
is a material matter of law, it also goes to the heart of trust. For my 
farmers and ranchers in Montana, there is a constant threat of 
subsidized Canadian wheat and barley being dumped in United States 
markets. These actions threaten Montanan's livelihood and seriously 
question the free-trade agreements with our northern neighbor.
  As you know, Mr. Speaker, I consider Canada a strong ally of the 
United States. We share the longest unfortified border in the world and 
a similar past of standing up against tyranny and for the values of 
democracy. However, many Montanans are greatly troubled by Canada's 
current trade practices. Despite the implementation of the North 
American Free-Trade Agreement [NAFTA], Canada continues to subsidize 
its various industries and commodities, including timber, beef, and 
grain.
  Clearly, we need someone to vigorously negotiate and highlight 
American interests in our growing international trade. The stakes have 
never been higher for farmers and ranchers in my State of Montana. Our 
farmers need to find markets and secure agreements for free and fair 
trade. And they need to have confidence that Washington is behind them 
100 percent. We passed a law to give them that confidence. Now is not 
the time to waiver.
  Mr. Speaker, I believe that granting the waiver sends the wrong 
signal. Waiving the law only raises suspicion about our long-term 
dedication to free trade.
  Mr. NEAL of Massachusetts. Mr. Speaker, I support the legislation 
before us which grandfathers Ambassador Barshefsky from certain 
provisions of the Lobbying Disclosure Act of 1995. When this 
legislation was considered in the Senate, Ambassador Barshefsky was 
grandfathered as Deputy U.S. Trade Representative [USTR]. This 
resolution would extend that grandfather to Ambassador Barshefsky as 
she moves up to the position of USTR.
  I have served on the Subcommittee on Trade for 4 years and have had 
the opportunity to work closely with Ambassador Barshefsky. Prior to 
joining USTR, Ambassador Barshefsky specialized in trade law and policy 
for 18 years. She brings expertise to the position of USTR.
  In her 4 years at USTR, Ambassador Barshefsky negotiated many major 
bilateral and multilateral agreements. With respect to Japan, 
Ambassador Barshefsky has been the key policymaker and negotiator. Her 
work has resulted in agreements on the following issues: Government 
procurement of telecommunications equipment and services, Government 
procurement of medical equipment and technology, insurance, flat glass, 
and cellular phones and equipment and agreements.
  Ambassador Barshefsky was instrumental in reaching the intellectual 
property rights enforcement agreement with China. I admire her 
determination in reaching agreements when there were many skeptics. 
Several times it was down to the wire and she was able to come out with 
a solid agreement.
  I urge you to vote for this resolution. I look forward to working 
with Ambassador Barshefsky in her role as USTR.
  Mr. RANGEL. Mr. Speaker, I rise in strong support of Senate Joint 
Resolution 5, legislation to waive certain provisions of the Lobbying 
Disclosure Act of 1995 with respect to the nomination of Ambassador 
Charlene Barshefsky to become the U.S. Trade Representative. This 
legislation is necessary to complete the nomination process of 
Ambassador Barshefsky.
  Ambassador Barshefsky has broad bipartisan support and deserves to be 
our next U.S. Trade Representative. Last week, the other body approved 
her nomination and the waiver legislation before us today by 
overwhelming votes of 99-1 and 98-2, respectively.
  During her nearly 4 years of service at the Office of the USTR, first 
as Deputy USTR and since April of last year Acting USTR, Ambassador 
Barshefsky has compiled an impressive record opening foreign markets 
for U.S. exporters and defending U.S. trade interests. For example, she 
recently concluded successful multilateral agreements which will reduce 
or eliminate tariffs worldwide on trade in information technology 
products, and which will open foreign markets for basic 
telecommunications services. Last December she concluded a bilateral 
agreement with Japan on insurance which opens that market for U.S. 
insurance providers. Last year, she also struck an agreement with China 
providing for stronger enforcement of U.S. intellectual property rights 
in that country.
  Clearly, Ambassador Barshefsky has shown that she is a tough and 
skillful negotiator internationally. More importantly, however, 
Ambassador Barshefsky understands that international trade and our 
Nation's trade policies have an impact on the lives and futures of 
Americans. For that reason, she consults closely with Members of 
Congress and the public at large on her actions. She clearly recognizes 
that trade policy is a shared responsibility of the executive and 
legislative branches and carries out her responsibilities accordingly.
  For those who may have questions or concerns about this waiver, it 
must be noted that Congress has previously passed legislation to waive 
a statutory requirement on who may serve in a particular Government 
position with respect to a specific nominee. It should also be noted 
that, as Deputy USTR, Ambassador Barshefsky was specifically exempt 
from the provisions in question in the Lobbying Disclosure Act. The 
Senate Finance Committee carefully studies her record in the private 
sector and agreed unanimously that a waiver was entirely appropriate 
for Ambassador Barshefsky.
  Mr. Speaker, in the past several years I have come to know and admire 
Ambassador Barshefsky's work and tireless dedication on behalf of the 
American people. I heartily endorse the legislation before us today and 
urge my colleagues to support it. Ambassador Barshefsky will be a U.S. 
Trade Representative of which we will all be proud.
  Mrs. KENNELLY. Mr. Speaker, I rise today in support of Senate Joint 
Resolution 5 which waives certain provisions of the Trade Act of 1974. 
This resolution would grandfather Ambassador Charlene Barshefsky from 
the application of certain restrictive provisions of the Lobbying 
Disclosure Act of 1995. On occasion the Senate has granted similar 
waivers when a statutory provision would have barred a highly qualified 
nominee from serving our Nation's executive branch. Let me note, 
however, that this resolution applies only to Ambassador Barshefsky and 
in no way modifies the statute nor does it have implications for any 
other prospective nominees to serve as the U.S. Trade Representative or 
as Deputy USTR.
  As a Member of the Ways and Means Committee, I have had the pleasure 
of working with Ambassador Barshefsky during her time at USTR, first as 
deputy to Mickey Kantor and recently in the acting capacity. Ambassador 
Barshefsky has been instrumental in developing and pursuing a strong 
international trade policy having successfully completed several 
multilateral trade and investment treaties. Not only has she 
demonstrated her commitment securing agreements beneficial to U.S. 
trade interests, she has also demonstrated her willingness to walk away 
from the table when other countries have made insufficient offers.
  Given her tenacity and resolve on behalf of our country's trade 
interests, I firmly believe Charlene Barshefsky to be capable and well 
prepared for her role as Trade Representative. Her professional 
achievements, her tough negotiating skills and her knowledge of her 
subject are most remarkable. I have worked with few people who possess 
the ability to discuss both the intricate details of trade minutia and 
the whole picture with such clarity and coherence.
  We are embarking on a new age in the global marketplace. If we are to 
remain competitive, we must be able to compete in foreign markets. The 
United States has vigorously pursued agreements and commitments from 
our trading partners to open their markets and reduce their trade 
barriers in both goods and services. These opportunities should benefit 
both American companies and consumers. That must be our goal in seeking 
expanded trade in the future; our economic well-being depends on it.
  I am confident that Ambassador Barshefsky will continue to pursue a 
strong and fair trade agenda that seeks to promote our national 
interests abroad and at home. I urge my colleagues to support the 
waiver and vote for Senate Joint Resolution 5.
  Mr. SMITH of Oregon. Mr. Speaker, I rise in support of Senate Joint 
Resolution 5, a joint resolution waiving provisions of the Trade Act of 
1974 relating to the appointment of the U.S. Trade Representative. As 
the chairman of the Committee on Agriculture I believe that it is vital 
that the person representing the United States in trade negotiations 
and resolution of disputes recognize that agriculture is an extremely 
important and essential issue to be considered in all trade 
negotiations and resolutions of disputes. American farmers and 
ranchers, the most productive in the world, can prosper only where 
there is free and fair world trade.
  In fact, if not for agriculture exports the U.S. trade deficit would 
be larger than it currently

[[Page H828]]

is. In 1996, U.S. agriculture exports totaled $60 billion and the 
agriculture trade surplus exceeded $26 billion. There is, nevertheless, 
ample opportunity for expansion of agriculture trade into the 21st 
century. It is incumbent on the administration, through the Office of 
the Trade Representative and the Department of Agriculture, to make 
sure that opportunities exist for trade expansion and that trade 
disputes are resolved in a timely manner.
  I have had the opportunity to meet with Ambassador-Designate 
Barshefsky and she assures me of her knowledge of agriculture and her 
commitment to ensuring the proper emphasis on agriculture export 
issues. In our discussions we agreed that agriculture is the No. 1 
high-tech export and the No. 1 priority with the USTR. Historically, 
agriculture has been a leader in biotechnology, a process through which 
researchers develop improved seeds and crops, such as those naturally 
protected from diseases and insects. This process has enabled farmers 
and ranchers to increase yields and thereby exports. It has also 
brought challenges from our trading partners. These challenges must be 
vigorously defended by the administration and Ambassador-Designate 
Barshefsky assures me that she will do so.
  The Uruguay Round agreement included provisions on sanitary and 
phytosanitary disputes and provided that sound science be the basis for 
resolution of such disputes. Countries' use of nontariff trade barriers 
to restrict imports, especially those related to sanitary and 
phytosanitary issues, do great harm to American agriculture exports and 
thereby the income of our farmers and ranchers. This must be a high 
priority with the administration.
  The Committee on Agriculture will hold a hearing on March 18, 1997, 
to discuss agriculture trade and the barriers that face exporters. The 
Secretary of Agriculture and the U.S. Trade Representative have been 
invited to testify. This will be an opportunity for the representatives 
of the administration to discuss implementation of trade agreements, 
the monitoring of the implementation of these agreements by other 
countries, and to delineate how they will secure fair treatment for 
American commodities in world trade.
  In my discussions with Ambassador-Designate Barshefsky she assures me 
that agriculture will be a top priority under her watch. That is why I 
will support Senate Joint Resolution 5 and the waiver needed to allow 
her to assume the position of USTR.
  Mr. CRANE. Mr. Speaker, I yield back the balance of my time.
  Mr. RANGEL. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Texas [Mr. Archer] that the House suspend the rules and 
pass the Senate joint resolution, Senate Joint Resolution 5.
  The question was taken; and (two-thirds having voted in favor 
thereof), the rules were suspended and the Senate Joint Resolution was 
passed.
  A motion to reconsider was laid on the table.

                          ____________________