[Congressional Record Volume 143, Number 55 (Thursday, May 1, 1997)]
[Senate]
[Pages S3874-S3880]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
VOLUNTEER PROTECTION ACT OF 1997
The Senate continued with the consideration of the bill.
The PRESIDING OFFICER. The Chair recognizes the Senator from Georgia.
Mr. COVERDELL. Mr. President, I ask unanimous consent that during the
pendency of S. 543, there be 30 minutes for debate, to be equally
divided between Senators Coverdell and Leahy or their designees, with
an additional 15 minutes under the control of Senator McConnell; that
there be one amendment in order only, to be offered by Senator
Coverdell, encompassing the managers' agreed-upon language, that there
be 40 minutes of debate on the amendment to be equally divided between
Senators Coverdell and Leahy or their designees, that no other
amendments or motions be in order and, following the disposition of the
amendment, the bill be advanced to third reading and there be an
additional 10 minutes for debate to be equally divided between Senators
Coverdell and Leahy.
Mr. President, this agreement has been cleared by the ranking
minority member.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 53
(Purpose: To provide a complete substitute.)
Mr. COVERDELL. Mr. President, I send the amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
[[Page S3875]]
The assistant legislative clerk read as follows:
The Senator from Georgia [Mr. Coverdell], for himself, Mr.
Leahy, Mr. Ashcroft, Mr. McConnell and Mr. Abraham, proposes
an amendment numbered 53.
Mr. COVERDELL. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Volunteer Protection Act of
1997''.
SEC. 2. FINDINGS AND PURPOSE.
The Congress finds and declares that--
(1) the willingness of volunteers to offer their services
is deterred by the potential for liability actions against
them;
(2) as a result, many nonprofit public and private
organizations and governmental entities, including voluntary
associations, social service agencies, educational
institutions, and other civic programs, have been adversely
affected by the withdrawal of volunteers from boards of
directors and service in other capacities;
(3) the contribution of these programs to their communities
is thereby diminished, resulting in fewer and higher cost
programs than would be obtainable if volunteers were
participating;
(4) because Federal funds are expended on useful and cost-
effective social service programs, many of which are national
in scope, depend heavily on volunteer participation, and
represent some of the most successful public-private
partnerships, protection of volunteerism through
clarification and limitation of the personal liability risks
assumed by the volunteer in connection with such
participation is an appropriate subject for Federal
legislation;
(5) services and goods provided by volunteers and nonprofit
organizations would often otherwise be provided by private
entities that operate in interstate commerce;
(6) due to high liability costs and unwarranted litigation
costs, volunteers and nonprofit organizations face higher
costs in purchasing insurance, through interstate insurance
markets, to cover their activities; and
(7) clarifying and limiting the liability risk assumed by
volunteers is an appropriate subject for Federal legislation
because--
(A) of the national scope of the problems created by the
legitimate fears of volunteers about frivolous, arbitrary, or
capricious lawsuits;
(B) the citizens of the United States depend on, and the
Federal Government expends funds on, and provides tax
exemptions and other consideration to, numerous social
programs that depend on the services of volunteers;
(C) it is in the interest of the Federal Government to
encourage the continued operation of volunteer service
organizations and contributions of volunteers because the
Federal Government lacks the capacity to carry out all of the
services provided by such organizations and volunteers; and
(D)(i) liability reform for volunteers will promote the
free flow of goods and services, lessen burdens on interstate
commerce and uphold constitutionally protected due process
rights; and
(ii) therefore, liability reform is an appropriate use of
the powers contained in article 1, section 8, clause 3 of the
United States Constitution, and the fourteenth amendment to
the United States Constitution.
(b) Purpose.--The purpose of this Act is to promote the
interests of social service program beneficiaries and
taxpayers and to sustain the availability of programs,
nonprofit organizations, and governmental entities that
depend on volunteer contributions by reforming the laws to
provide certain protections from liability abuses related to
volunteers serving nonprofit organizations and governmental
entities.
SEC. 3. PREEMPTION AND ELECTION OF STATE NONAPPLICABILITY.
(a) Preemption.--This Act preempts the laws of any State to
the extent that such laws are inconsistent with this Act,
except that this Act shall not preempt any State law that
provides additional protection from liability relating to
volunteers or to any category of volunteers in the
performance of services for a nonprofit organization or
governmental entity.
(b) Election of State Regarding Nonapplicability.--This Act
shall not apply to any civil action in a State court against
a volunteer in which all parties are citizens of the State if
such State enacts a statute in accordance with State
requirements for enacting legislation--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply, as of a date certain, to such civil action
in the State; and
(3) containing no other provisions.
SEC. 4. LIMITATION ON LIABILITY FOR VOLUNTEERS.
(a) Liability Protection for Volunteers.--Except as
provided in subsections (b) and (d), no volunteer of a
nonprofit organization or governmental entity shall be liable
for harm caused by an act or omission of the volunteer on
behalf of the organization or entity if--
(1) the volunteer was acting within the scope of the
volunteer's responsibilities in the nonprofit organization or
governmental entity at the time of the act or omission;
(2) if appropriate or required, the volunteer was properly
licensed, certified, or authorized by the appropriate
authorities for the activities or practice in the State in
which the harm occurred, where the activities were or
practice was undertaken within the scope of the volunteer's
responsibilities in the nonprofit organization or
governmental entity;
(3) the harm was not caused by willful or criminal
misconduct, gross negligence, reckless misconduct, or a
conscious, flagrant indifference to the rights or safety of
the individual harmed by the volunteer; and
(4) the harm was not caused by the volunteer operating a
motor vehicle, vessel, aircraft, or other vehicle for which
the State requires the operator or the owner of the vehicle,
craft, or vessel to--
(A) possess an operator's license; or
(B) maintain insurance.
(b) Concerning Responsibility of Volunteers to
Organizations and Entities.--Nothing in this section shall be
construed to affect any civil action brought by any nonprofit
organization or any governmental entity against any volunteer
of such organization or entity.
(c) No Effect on Liability of Organization or Entity.--
Nothing in this section shall be construed to affect the
liability of any nonprofit organization or governmental
entity with respect to harm caused to any person.
(d) Exceptions to Volunteer Liability Protection.--If the
laws of a State limit volunteer liability subject to one or
more of the following conditions, such conditions shall not
be construed as inconsistent with this section:
(1) A State law that requires a nonprofit organization or
governmental entity to adhere to risk management procedures,
including mandatory training of volunteers.
(2) A State law that makes the organization or entity
liable for the acts or omissions of its volunteers to the
same extent as an employer is liable for the acts or
omissions of its employees.
(3) A State law that makes a limitation of liability
inapplicable if the civil action was brought by an officer of
a State or local government pursuant to State or local law.
(4) A State law that makes a limitation of liability
applicable only if the nonprofit organization or governmental
entity provides a financially secure source of recovery for
individuals who suffer harm as a result of actions taken by a
volunteer on behalf of the organization or entity. A
financially secure source of recovery may be an insurance
policy within specified limits, comparable coverage from a
risk pooling mechanism, equivalent assets, or alternative
arrangements that satisfy the State that the organization
or entity will be able to pay for losses up to a specified
amount. Separate standards for different types of
liability exposure may be specified.
(e) Limitation on Punitive Damages Based on the Actions of
Volunteers.--
(1) General rule.--Punitive damages may not be awarded
against a volunteer in an action brought for harm based on
the action of a volunteer acting within the scope of the
volunteer's responsibilities to a nonprofit organization or
governmental entity unless the claimant establishes by clear
and convincing evidence that the harm was proximately caused
by an action of such volunteer which constitutes willful or
criminal misconduct, or a conscious, flagrant indifference to
the rights or safety of the individual harmed.
(2) Construction.--Paragraph (1) does not create a cause of
action for punitive damages and does not preempt or supersede
any Federal or State law to the extent that such law would
further limit the award of punitive damages.
(f) Exceptions to Limitations on Liability.--
(1) In general.--The limitations on the liability of a
volunteer under this Act shall not apply to any misconduct
that--
(A) constitutes a crime of violence (as that term is
defined in section 16 of title 18, United States Code) or act
of international terrorism (as that term is defined in
section 2331 of title 18) for which the defendant has been
convicted in any court;
(B) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(C) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court;
(D) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law;
or
(E) where the defendant was under the influence (as
determined pursuant to applicable State law) of intoxicating
alcohol or any drug at the time of the misconduct.
(2) Rule of construction.--Nothing in this subsection shall
be construed to effect subsection (a)(3) or (e).
SEC. 5. LIABILITY FOR NONECONOMIC LOSS.
(a) General Rule.--In any civil action against a volunteer,
based on an action of a volunteer acting within the scope of
the volunteer's responsibilities to a nonprofit organization
or governmental entity, the liability of the volunteer for
noneconomic loss shall be determined in accordance with
subsection (b).
(b) Amount of Liability.--
(1) In general.--Each defendant who is a volunteer shall be
liable only for the amount of noneconomic loss allocated to
that defendant in direct proportion to the percentage of
responsibility of that defendant (determined in accordance
with paragraph (2))
[[Page S3876]]
for the harm to the claimant with respect to which that
defendant is liable. The court shall render a separate
judgment against each defendant in an amount determined
pursuant to the preceding sentence.
(2) Percentage of responsibility.--For purposes of
determining the amount of noneconomic loss allocated to a
defendant who is a volunteer under this section, the trier of
fact shall determine the percentage of responsibility of that
defendant for the claimant's harm.
SEC. 6. DEFINITIONS.
For purposes of this Act:
(1) Economic loss.--The term ``economic loss'' means any
pecuniary loss resulting from harm (including the loss of
earnings or other benefits related to employment, medical
expense loss, replacement services loss, loss due to death,
burial costs, and loss of business or employment
opportunities) to the extent recovery for such loss is
allowed under applicable State law.
(2) Harm.--The term ``harm'' includes physical,
nonphysical, economic, and noneconomic losses.
(3) Noneconomic losses.--The term ``noneconomic losses''
means losses for physical and emotional pain, suffering,
inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium (other than loss of
domestic service), hedonic damages, injury to reputation and
all other nonpecuniary losses of any kind or nature.
(4) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 and exempt from tax under
section 501(a) of such Code; or
(B) any not-for-profit organization organized and conducted
for public benefit and operated primarily for charitable,
civic, educational, religious, welfare, or health purposes.
(5) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such
State, territory, or possession.
(6) Volunteer.--The term ``volunteer'' means an individual
performing services for a nonprofit organization or a
governmental entity who does not receive--
(A) compensation (other than reasonable reimbursement or
allowance for expenses actually incurred); or
(B) any other thing of value in lieu of compensation,
in excess of $500 per year, and such term includes a
volunteer serving as a director, officer, trustee, or direct
service volunteer.
SEC. 7. EFFECTIVE DATE.
(a) In General.--This Act shall take effect 90 days after
the date of enactment of this Act.
(b) Application.--This Act applies to any claim for harm
caused by an act or omission of a volunteer where that claim
is filed on or after the effective date of this Act, without
regard to whether the harm that is the subject of the claim
or the conduct that caused the harm occurred before such
effective date.
Mr. COVERDELL. Mr. President, let me explain our disposition. While
there is considerable more time in the unanimous consent, it is
anticipated that there would be a delegating of time back so we might
vote as closely to 2 o'clock as possible. So, I would like to proceed
to explain this amendment so we might get this piece done. There are
conditions that are affecting certain Members that would require,
hopefully, we could vote as close to 2 o'clock as possible.
Mr. President, I want to explain to our colleagues. First, I thank
the ranking member, the Senator from Vermont, Senator Leahy. It has
been a long week for both of us. He and his staff and colleagues have
worked diligently with this Senator and his staff and colleagues
throughout the morning to arrive at the amendment that has just been
forwarded to the desk under unanimous consent.
This substitute adds a finding to clarify the Federal role in civil
liability matters related to voluntarism. The substitute clarifies the
State opt-out section, to ensure the provision does not supersede State
requirements for enacting legislation and allows for States to include
an effective date. The substitute clarifies the punitive damage
protections only relate to cases that are based on the actions of the
volunteer and do not supersede more restrictive Federal or State laws.
The substitute would clarify that the specific exemptions in the bill
for cases of violent crime, sex offenses, hate crimes, civil rights
violations, and DUI, do not restrict the general exemption where the
harm was willful or criminal misconduct, gross negligence, reckless
misconduct or conscious, flagrant indifference to the rights or safety
of the individual harmed.
The substitute clarifies that the joint and several liability
limitations for noneconomic damages and the punitive damage limitations
only apply to defendants who are volunteers. The substitute clarifies
that the volunteer can receive reimbursement for reasonable expenses
and still be considered a volunteer.
I and the other authors on our side have concurred with these
changes. We still believe the version we submitted, S. 543, was
reasoned and balanced, but feel that this is a compromise that gets us
to the target we were after--the shield for the volunteer. And in these
actions, assuming we receive a favorable vote, we will have responded
responsibly and rightfully to the call of the administration, President
Clinton, and Presidents Bush, Ford, and Carter, to launch a new era in
voluntarism in the United States.
With that brief statement, I yield the floor.
The PRESIDING OFFICER. The Chair recognizes the Senator from Alaska.
Mr. MURKOWSKI. Mr. President, I am pleased to learn we have worked
out a compromise with the other side on this very important issue. I
commend the Senator for his diligence and commitment to proceed with a
solution that is going to be in the best interests of voluntarism.
Mr. COVERDELL addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Georgia.
Mr. COVERDELL. Mr. President, let me give the disposition of our
situation on S. 543. We are trying to communicate to the principal
authors so that they might have a chance to make closing comments with
regard to the amendment that I have submitted, and we are still
endeavoring to try to vote between 2 and 2:15.
While we are waiting for those Senators to arrive, I will talk about
what the passage of this bill will mean, an achievement that will be
secured in the Senate.
We will have effectively responded to a circumstance that has been
developing since the mid-1980's when volunteers suddenly found
themselves the targets of lawsuits in the act of volunteering. Prior to
that time, very little of this type of legal allegation occurred. We
have discovered that voluntarism has been chilled and threatened and
pushed back and been less exuberant. Volunteers' behavior is even
different when they do volunteer because of the threat of legal
consequences.
When we pass this legislation, S. 543, and hopefully ultimately pass
it in the House and send it to the President and he signs it, we will
have created a protective buffer, a shield for the well-meaning
volunteer, the volunteer who experiences a simple accident or omission.
We have heard some of the stories on the floor of the Senate. A coach
who has a player who inadvertently slides into home head first instead
of feet first will not have to spend long nights awake wondering
whether, because he was or she was a volunteer, they will lose their
home and assets and checking account, et cetera. The principle we will
have accomplished is to protect a volunteer from being under assault
for that kind of omission.
The second thing we will have achieved is that the volunteer will no
longer be looked at as the deep pocket. If they volunteer for an
organization that does not have any resources, they may have a home, or
something to that effect, and so the suit goes to the volunteer instead
of the organization. But now the volunteer cannot be held liable for
anything more than their proportional responsibility. So the story we
talked about on the floor of the Senate yesterday and today of the
woman who was nothing more than a receptionist out front answering a
phone while an accident occurred in the gym will no longer be held
liable for the fact that something went wrong somewhere else.
So this is very meaningful, as I said a moment ago, a very
significant congressional initiative that keeps the legacy of the
summit alive and helps fuel the call for new volunteers.
The Senator from Pennsylvania, Senator Santorum, said earlier today
that one of the concerns of the summit was that it would flame out,
that after all the glitz and the visuality of seeing the celebrities
and political leaders gathered together, what would keep it
[[Page S3877]]
going? I think S. 543 will be one response from the Congress, one
opportunity to keep the fuel under the idea of more and more Americans
stepping forward in a very, very difficult time.
Mr. President, I am hopeful that we will be able to conclude this
vote, if at all possible, by at least 2:15.
Mr. HATCH. Mr. President, I am pleased today to announce my strong
support for S. 543, the Volunteer Protection Act.
As the excitement surrounding today's events in Philadelphia have so
poignantly illustrated, ours is a nation that has a particular
dependence on the volunteer movement. Nonprofit organizations mobilize
volunteers by drawing on their members' special talents to meet social
or economic needs. Volunteer organizations are currently deeply
involved in such activities as alleviating hunger, educating the public
about the dangers of drug and alcohol abuse, providing care of the
elderly and infirm, providing athletic programs for our Nation's youth,
providing opportunity for the poor, building housing for the homeless,
promoting literacy and education, finding missing children, teaching
fire safety, aiding victims of natural disasters, providing moral
education for our youth, and spreading American ideals across the
world. In fact, according to a 1990 study by the Hudson Institute,
which polled approximately 5,500 associations, volunteer time in
America was conservatively estimated to total $3.3 billion per year.
This is nothing new. In his 1835 commentary of our country, the epic
``Democracy in America,'' Alexis de Toqueville noted that America was a
nation of joiners. To de Toqueville this was very significant.
Nongovernmental charitable, religious, and community organizations
combined with the family and other natural social units to form what he
termed ``intermediary'' organizations--organizations that impede the
trend toward centralization of virtually all administration in the
national government. It is these intermediary groups that are essential
in protecting the liberty of the individual and community from the
regulatory state.
In recent times, there has been an awareness of the need to
strengthen volunteer organizations as a way to buttress the newly
rediscovered virtues of limited government. Americans are coming to
realize that government should not and cannot be relied on to provide
all social services. The gap between American needs and American
resources must be filled by the generous efforts of our volunteer
corps. But the current litigation nightmare sweeping our Nation is
going a long way to hinder the efforts of these important volunteers.
This at a time when we must be doing everything possible to encourage
the spirit of voluntarism.
Mr. President, I'd like to illustrate for you a couple of reasons why
I believe the litigious nature of our society is dampening the spirit
of voluntarism. A Gallup study revealed the large extent to which the
threat of lawsuits, and the prohibitive cost of liability insurance,
have a negative effect on volunteer participation in charitable
organizations. The survey found that nearly 20 percent of all nonprofit
organizations in the United States have experienced volunteers
withholding service or resigning due to fear of liability exposure.
This figure represents a very significant portion of the volunteer
community. Specifically, 1 in 10 nonprofit organizations have
experienced the resignation of a volunteer due to liability concerns.
Let's do the math--with approximately 600,000 nonprofit organizations
in America, we know that 48,000 volunteers have been lost during the
past few years strictly due to liability concerns. Additionally, one in
six volunteers report withholding their services due to fear of
exposure to liability suits. This means that 100,000 potential American
volunteers have declined to serve due to fear of exposure to lawsuits.
This is an extraordinary figure.
Additionally, the rate voluntarism has been steadily declining in
recent years. The percentage of Americans volunteering dropped from 54
percent in 1989 to 48 percent in 1993. Sadly, charitable donations are
also declining, falling roughly $100 per household during this same
short period. However, in 1991 alone, Americans spent a hefty $132
billion on the civil justice system. As a result, it is not surprising
to note that liability insurance premiums for nonprofit organizations
continue to rise.
These figures demonstrate that the on-going litigation craze has
seriously damaged the spirit of voluntarism. I would like to document
several cases that stand out in particular:
Lawyers for an injured mountain climber sued volunteer rescuers for
$12 million on the grounds that their rescue methods were negligent and
reckless. Prior to assisting this particular climber, the rescue team
successfully and carefully made hundreds of rescues without incident.
In February 1995, Cleighton Hall, then CEO of Little League Baseball,
wrote in the Wall Street Journal that Little League had turned into
``Litigation League.'' In one instance, two youngsters collided in the
outfield, picked themselves up, dusted themselves off, and sued their
coach. In another instance, lawyers won a large cash settlement when
their client was struck by a ball that a player failed to catch--that
player, strangely enough, was the client's daughter. Finally, trial
attorneys for a child in Runnymeade, NJ, filed suit against the youth's
coach when he was struck by a flyball in center field.
Finally, a boy in a scouting unit with the Boy Scouts of the Cascade
Pacific Council suffered a paralyzing injury in a game of touch
football. Several adults volunteered to supervise the trip. The youth's
attorneys filed a personal injury suit alleging that the Boy Scouts and
the volunteers were negligent for failing to supervise the youth
adequately. The jury found that the volunteers were personally liable
for $7 million. Oregon law ultimately caused the judgment to be reduced
to around $4 million, but few Boy Scout volunteers can afford this kind
of judgment.
Anyone who has been a Boy Scout or has volunteered in any capacity
knows that certain accidents are impossible to prevent. The basic
problem is that the actions of this Nation's greedy trial lawyers are
serving to undermine the positive effects of voluntarism. Clearly, Mr.
President, the current situation cries out for reform.
The Volunteer Protection Act helps charities and nonprofit
organizations serve their communities by giving their volunteers
immunity from lawsuits. Volunteers who act in a grossly negligent or
incompetent manner are, of course, not be protected under the
legislation.
This bill will provide a volunteer protection from litigation in
cases where, first, the volunteer was acting within the scope of the
volunteer's responsibilities; second, the volunteer was properly
licensed, certified, or authorized by the State in which the harm
occurred, if such authorization is required; and third, the harm was
not caused by willful or criminal misconduct, gross negligence,
reckless misconduct, or a conscious, flagrant indifference to the
rights or safety of the individual harmed by the volunteer.
The bill also limits punitive damages that may be awarded against
volunteers and nonprofit organizations based on harm caused by a
volunteer acting within the scope of the volunteer's responsibilities.
Punitive damages against any such defendant will be available only
where the claimant demonstrates by clear and convincing evidence that
the volunteer caused the harm through willful or criminal misconduct.
Finally, while the bill preempts State law to the extent that it is
inconsistent with the bill, the bill will not preempt any State laws
that provide additional protections from liability relating to
volunteers or nonprofit organizations.
Mr. President, this bill is consistent with the overall thrust and
punitive damages reforms of my bill, S. 79, the Civil Justice Fairness
Act. I am proud to support it as another step in our march toward
complete civil justice reform.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. THOMAS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S3878]]
Mr. THOMAS. Thank you, Mr. President.
The PRESIDING OFFICER. Who yields time?
Mr. COVERDELL. Mr. President, I yield up to 10 minutes of my time to
the distinguished Senator from Wyoming.
The PRESIDING OFFICER. The Senator has 8 minutes left.
Mr. COVERDELL. Mr. President, I yield 5 minutes to the distinguished
Senator.
The PRESIDING OFFICER. The Senator from Wyoming has 5 minutes.
Mr. THOMAS. Thank you, Mr. President.
First, let me say how much I have appreciated the efforts of the
Senator from Georgia in promoting this legislation, this Volunteer
Protection Act of 1997. I think probably most everything about the bill
has been said. I am delighted to hear that there has been an agreement.
I can hardly imagine that anybody does not agree with the concept of
making it easier for people to volunteer, of taking away some of the
kinds of threats that have inevitably been there when someone does
volunteer to serve. So I am very pleased about that.
I think it is true--and I guess I will probably be saying some of the
same things again--it is true that the nature of this society, this
democracy, requires that people care. It is a Government of the people
and by the people, and designed to be a relatively minimal Government
in that it sets a framework for us to do the things that we think
should be done, for us to take the leadership to cause our communities
to be strong.
The Federal Government clearly has a role. But, you know, the more I
am here, Mr. President, and the more I see what I think is the role of
the Federal Government, the more I am impressed with the fact that you
and I make our communities strong there. And much of that is because we
are willing to volunteer. I think it was the Frenchman de Tocqueville
who came to examine and to explore and to look into this new idea of
democracy. One of the things that he observed and found to be most
important was this was a country, this was a society that was doing
things together for each other voluntarily. And that still is--that
still is--the root, it seems to me, of our society. The role of the
Federal Government is minimal in that.
I was pleased with the President and the several Presidents last week
who raised the image and raised the visibility of voluntarism. But the
fact is, national voluntarism is not really the key. It is in Casper,
WY, or Gillette, WY, or Louisville, KY. That is where voluntarism works
and that is where it will continue to work.
So I think this bill is something we all should support. I am so
delighted that the sponsors have done this, worked on it. I am
delighted that we will be able to vote and vote positively on it in a
few minutes.
I see some others wishing to speak, Mr. President, so I yield the
floor.
Mr. COVERDELL addressed the Chair.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. COVERDELL. Mr. President, I now ask for the yeas and nays on
final passage of S. 543.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be.
The yeas and nays were ordered.
Mr. McCONNELL addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from
Kentucky.
Mr. McCONNELL. Mr. President, this is a very significant bill. I want
to commend the Senator from Georgia for his leadership which has
brought us to this point this year. As he knows, I introduced similar
legislation in 1990 and in 1993 and again in 1995. So I take particular
pride in seeing it moved to this point where, hopefully, it will pass
the Senate in the next minutes ahead.
This bill really, Mr. President, comes from the grassroots of
American voluntarism. This bill sprang from the concerns and complaints
of volunteers and national leaders in the volunteer community, thoughts
of the men and women who are on the frontlines in our national
volunteer efforts.
Just last week over on the House side we heard from Terry Orr, a
former Washington Redskins football player. He said when he came into
the NFL a few years ago players were asked to volunteer, and they
responded, ``Just tell me where to go.'' There was not a moment's
hesitation. In today's litigious world, players are asked to volunteer,
and they respond, as Terry Orr said, ``Do we have coverage?''
Players are afraid to play a benefit ballgame or do any kind of
volunteer activity without engaging in extensive discussions with their
lawyers. That is today's environment, Mr. President.
Lynn Swann, another famous football player with the Pittsburgh
Steelers, is a commentator on one of the networks. He was also at that
press conference. He is the immediate past president of Big Brothers/
Big Sisters of America. This is what he had to say. He said in the late
1980's the Big Brothers/Big Sisters federation endorsed Federal
volunteer protection legislation. According to Lynn Swann, the Big
Brothers and Big Sisters organization endorsed the legislation because
``a series of high visibility law suits against direct service
volunteers had dampened [the] enthusiasm for volunteering in our
program.''
He went on to say the legislation was necessary because: ``We [can]
not afford to lose prospective, high quality volunteers due to
liability fears.''
That was Lynn Swann and Terry Orr, two former professional football
players, just expressing their own experience in this highly litigious
society in which we live and how it affects the willingness of people
to volunteer their time.
William Cople, former pro bono general counsel for the National
Capital Area Council of the Boy Scouts of America has written as
follows:
Volunteer service is under assault from an unlikely
quarter--the civil justice system.
The civil justice system.
Like so many others, volunteers and their service
organizations have been swept into the courts to face
potential liability in civil suits.
Thomas L. Jones of Habitat for Humanity International also testified
just this past week that volunteers across the United States have
declined service on Habitat for Humanity boards ``because of perceived
liability responsibility.''
Mr. President, the bill before us protects volunteers who serve on
the boards of nonprofit organizations.
H.R. 911, a bill over on the House side, however, provides little
protection for volunteers who want to serve as officers on nonprofit
boards. H.R. 911 defines volunteer so narrowly that it excludes anyone
who receives reimbursement for expenses of $300 per year. And H.R. 911
would not--I repeat, not--cover a volunteer who serves in a rape crisis
center or a child abuse center and gets reimbursed $30 a month for
reasonable expenses, such as transportation costs. In other words, the
bill over in the House is simply too narrow.
Our bill allows a volunteer to be fully reimbursed for reasonable
expenses.
The opponents of volunteer protection argue that: This legislation is
not necessary because there is no comprehensive digest of jury awards
against volunteers. That is the argument.
First, let me say I have already cited several examples of outrageous
lawsuits and jury verdicts. Second, the fact that jury verdicts are not
rendered against volunteers every month is simply not relevant--simply
not relevant.
Most lawsuits settle before trial and thus are unreported. The
chilling effects of even one case is astounding.
As the Boy Scouts' former general counsel has explained, ``a legal
judgment entered in a single case can have a multitude of consequences
extending far beyond that case itself. This surely is a reason for
concern in the case of volunteers to service organizations.''
We have heard opponents argue that the bill is too broad and might
offer immunity to the Ku Klux Klan or other organizations whose views
we all abhor. This argument fails for several reasons.
Organizations are not granted immunity from lawsuits under this bill.
A volunteer is not covered under this bill if the volunteer engages
in willful misconduct, specifically including hate crimes or civil
rights violations.
It is not at all clear that the KKK would be covered as a nonprofit
entity that exists primarily for public benefit and operates primarily
for charitable purposes.
Survey of State volunteer protection laws indicates that there are
States
[[Page S3879]]
that define ``nonprofit organization'' in the same manner as S. 543 or
even broader. Yet, no one can come up with any examples from those
States where KKK members were immune from lawsuits. The KKK argument is
an offensive and bogus bogeyman argument.
Mr. President, also, opponents argue that this is a matter of States
rights. I am constantly amazed to hear people make that argument. It is
reminiscent of the argument against the civil rights laws in the 1960's
where opponents said this really is a States rights matter, not a
matter for the Federal Government.
The same argument was made against national voting rights
legislation. And a lot of the folks who were the most enthusiastic for
that kind of legislation now turn around and start arguing that the
States rights is a good argument to not deal with what is clearly a
national problem with national implications which needs a national
solution.
Opponents also argue that some States have some protections for some
volunteers in some circumstances. Well, that is not good enough. That
kind of patchwork protection is simply not going to get the job done.
In my State we have some basic protections for volunteers. But these
Kentucky protections are of no benefit to a Kentucky volunteer who goes
to help his neighbor in one of the seven States which border the
Commonwealth of Kentucky.
Volunteers, Mr. President, should not have to hire a lawyer in order
to cross State lines to help their neighbor.
Bob Goodwin, president and CEO of the Points of Light Foundation,
testified last week that a national solution is necessary because
``there is no consistency among our States with regard to volunteer
liability statutes, and that lack of consistency has led to confusion
in the volunteer community.''
Let me quote another leader in the national volunteer movement. John
H. Graham, CEO of the American Diabetes Association, also testified
last week on behalf of the National Coalition for Volunteer Protection.
This is what he had to say:
We have seen recently that otherwise qualified and willing
individuals are withholding their services out of fear of
liability and confusion concerning the different volunteer
protection laws on the books in many states. These are
individuals who would help house and feed the homeless, who
would treat and support the elderly, and who would clothe and
care for the poor.
So in summary, Mr. President, our national volunteer movement is
built upon the idea of loving your neighbor as yourself, of being a
good Samaritan, of stopping alongside the road and lending your
neighbor a helping hand.
People from my home State of Kentucky understand this concept. Their
neighbor is not just the child across the street, but it is the family
across the bridge or across the State line.
If the Kentucky Red Cross volunteer wants to cross over into
Tennessee or Ohio or Illinois or Indiana or West Virginia or Virginia
and help his neighbor recover from a flood, then he should not have to
call his lawyer to check on his liability potential in a surrounding
State. We must have a uniform minimum standard.
The principles of loving your neighbor, of being a good Samaritan are
woven deeply into the fabric of our Nation. We need to find ways to
free up this spirit, not to suppress it. We must inspire and encourage
people to do good works, not sue and harass and discourage.
Those who say that our volunteers do not need this legislation have
obviously not been talking to the people on the frontlines.
My longstanding interest in this issue comes from talking to
volunteers like the very ones that I have mentioned here today.
However, I must confess, Mr. President, that one particular volunteer
leader has had my ear on this issue for quite awhile. That is my wife,
Elaine, who is a former Director of the Peace Corps and former
president and CEO of the United Way of America. She has been involved
in this battle for a long time and understands fully the implications.
So, Mr. President, let me close by again thanking Senator Coverdell
for his leadership, and the others who participated in this. This is an
extremely important piece of legislation which I hope will pass the
Senate overwhelmingly.
I yield the floor.
Mr. LEAHY. Mr. President, I do wish to thank my friend from Georgia,
Mr. Coverdell. With the Coverdell-Leahy-Ashcroft-McConnell and others
substitute, I think this piece of legislation has been substantially
improved.
So Members know, we have limited it to individual volunteers. The
bill is no longer intended to provide immunity or limitation of
liability for organizations. I think it is also important that the
original sponsors of the bill agree not to include any limitation on
motor vehicle liability, even as it relates to individuals. I think
that is important.
I believe this bill has been significantly modified. It is not
precisely the bill I would have written, but it is not precisely the
bill my friend from Georgia would have written. I think it reflects
what is best in the Senate when both sides can give and come out with
something that can be better and more acceptable to a broad cross-
section of Senators. Most of us do have concerns if we preempt State
laws. In this, we have tried as best as possible to preserve State
options.
I do not believe the threat of litigation deters Americans from
volunteering to help neighbors, and did not deter the hundreds and
hundreds who volunteered in floods in the Dakotas or in so many other
areas we have seen in recent times. I am glad we have been able to
limit the reach of the Federal protections provided, but we will be
able to help individual volunteers. They should have some insulation
from honest mistakes. We all want volunteers to be able to help
whenever they can and worry most about how much stamina they will have
to help, and have that be their chief concern.
So we will continue to work on this. Of course, it will have to go
through conference, and we will make sure there is no unintended
benefit or defenses available to anybody, and that nobody is harmed or
left without a remedy.
We have seen an extraordinary week, as I said, in Philadelphia, with
the President of the United States, together with past Presidents, the
wife of a past President, General Powell, and others, who came together
to promote voluntarism. We do not want to do anything to hamper that.
Again, I thank my friend from Georgia. I thank Ed Pagano and Jonathan
Lamy on the Judiciary Committee staff, and all the others on both sides
of the aisle who worked to make this legislation better.
I am prepared to yield if there is any time left on this side, and am
prepared to go to vote on the Coverdell-Leahy substitute.
Mr. COVERDELL. I will take just a few minutes of my time, then do the
same as the Senator from Vermont and yield back time and proceed to the
vote.
I want to take a moment to thank Senator Leahy and his staff. It is
interesting how life makes people's paths cross each other from time to
time. He and I have done so now on various occasions over the last
decade. As always, I have found him to be an admirable either adversary
or cooperator, but always with well-intentioned and good purpose. I
thank him for his attention to this matter and the assistance both here
and on those occasions in the past.
I also want to thank Senator McConnell. Senator McConnell has labored
in this area for years and has made contributions to this legislation
that are exceedingly significant. I am very grateful for his assistance
on this matter, as well as Senators Ashcroft, Santorum, and others.
I want to acknowledge the work of Kyle McSlarrow, Terri Delgadillo,
and Dan McGirt on our side who have worked so hard to iron out the
differences so we could produce this meaningful piece of legislation.
The hour is 2:05. We said we would vote as near as possible to 2
o'clock. I yield back all time on our side.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 53) was agreed to.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for a third reading, and was
read the third time.
The PRESIDING OFFICER. There are now 10 minutes equally divided.
[[Page S3880]]
Mr. LEAHY. All time is yielded back.
Mr. COVERDELL. We yield back all time on this side.
The PRESIDING OFFICER. The question is on final passage of S. 543 as
amended. The yeas and nays have been ordered, and the clerk will call
the roll.
The assistant legislative clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 99, nays 1, as follows:
[Rollcall Vote No. 55 Leg.]
YEAS--99
Abraham
Akaka
Allard
Ashcroft
Baucus
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bryan
Bumpers
Burns
Byrd
Campbell
Chafee
Cleland
Coats
Cochran
Collins
Conrad
Coverdell
Craig
D'Amato
Daschle
DeWine
Dodd
Domenici
Dorgan
Durbin
Enzi
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Johnson
Kempthorne
Kennedy
Kerrey
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McCain
McConnell
Mikulski
Moseley-Braun
Moynihan
Murkowski
Murray
Nickles
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Santorum
Sarbanes
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thurmond
Torricelli
Warner
Wellstone
Wyden
NAYS--1
Thompson
The bill (S. 543), as amended, was passed.
Mr. COVERDELL. Mr. President, I move to reconsider the vote.
Mr. ABRAHAM. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. COVERDELL. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CONRAD. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________