[Congressional Record Volume 143, Number 63 (Wednesday, May 14, 1997)]
[House]
[Pages H2654-H2655]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           DISASTER INSURANCE

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentleman from Florida [Mr. McCollum] is recognized for 5 minutes.
  Mr. McCOLLUM. Mr. Speaker, I take this time today to talk about a 
couple of issues. The first one is disaster insurance and the problems 
that most of the States that I am familiar with, Florida, California, 
have with the fact that today we cannot get reinsurance in terms of 
casualty and property insurance for those kinds of disasters and 
catastrophic events that occur in our States.
  Many of the States along the coast particularly of this country, 
whether that be the Gulf of Mexico or the Atlantic Ocean, have 
tremendous exposure to hurricanes. Hurricanes can do tremendous damage. 
In Florida a couple of years ago we had a hurricane known as Andrew. 
Andrew caused $16 billion worth of damage by going through a section 
south of Miami known as Cutler Ridge. If that hurricane had gone 
through Fort Lauderdale, we are told by experts that that hurricane 
would have caused $40 or $50 billion worth of damage. If it had gone 
through Miami downtown, Lord knows how much it would have cost, but it 
would have been a lot.
  In California within a couple of weeks of Hurricane Andrew they had a 
relatively mild earthquake but serious enough to cause about $12 
billion worth of damage. We are likely to see hurricanes and 
earthquakes, particularly big earthquakes, in California that will be 
staggering in total losses in terms of the entire damage done in the 
next few years in these cataclysmic events that occur, hopefully, only 
once in a lifetime or once in a century. But when they occur they do 
enormous damage.
  There is a need because the insurance capabilities of private 
insurance and the States are not capable of dealing with it. There is a 
need to have Federal involvement. That is why I introduced legislation 
known as H.R. 230, which would address this problem by providing a 
national form of reinsurance for those who provide the kind of 
catastrophic coverage and property and casualty coverage in hurricanes 
and earthquakes and other natural disaster situations.
  The way this legislation would work would be that first of all there 
would have to be a $10 billion or greater total loss in the natural 
disaster to trigger the involvement of the Federal interest. Then, when 
that occurred, there would be a trust fund set up in the Treasury 
Department, and that trust fund would be created by the sale of 
reinsurance contracts to insurance companies who do this kind of 
business at an auction, an auction set by a commission which would be 
developed under this legislation.
  Mr. Speaker, that auction would result in premiums for the contracts 
being paid yearly by the insurance companies into this trust fund. 
Then, when we had a disaster of $10 billion or greater all together, 
for the next $25 billion in losses up to a $35 billion disaster, the 
trust fund moneys would come into play and the Treasury would pay out 
of the trust funds on a pro rata basis to the insurance carriers the 
reinsurance proceeds.
  This would enable a more orderly process to take place in States and 
in localities where these catastrophic events take place, and would 
eventually allow, I believe, for there to be a lowering of the 
insurance premiums that are now going through the roof for homeowners 
and business owners in these affected States. I think that it is very 
important that our colleagues take a look at this legislation. I would 
invite cosponsorship of it.
  I would hope that we could move a bill of this nature or something 
similar to it through this Congress this session. The gentleman from 
New York [Mr. Lazio], chairman of the Housing Subcommittee, has been on 
the floor a lot the last few days as this bill and a similar product 
that he has introduced and cosponsored, as he has cosponsored mine in 
his committee. We are looking forward to the kind of support that will 
allow us to proceed to get this type of law enacted.

  I might say that every State is affected by this because, if we get a 
pool of insurance moneys for reinsurance like this in the Treasury that 
is accumulated by premiums being paid by insurers, it is going to save 
the taxpayer money in the event of major losses.
  We are talking about a supplemental appropriation now for disasters 
in flood prone areas and so forth. We are always going to have Federal 
money being spent when you have a major disaster.
  If we can have an insurance pool like this that is stimulated to fill 
a void in the market since there is no private reinsurance to speak of 
for this purpose now and could lower insurance premiums for individual 
homeowners and businesses at the same time, we will have done two 
things: One, we will have helped people get insurance and afford 
insurance in States where catastrophic incidents and disasters occur. 
We will also have protected the taxpayers from losses that will occur 
when disasters occur and somebody comes knocking on our door for 
assistance.
  Last but not least, in the few remaining moments I have, I would like 
to point out that in the Subcommittee on Courts and Intellectual 
Property, where I serve, a hearing is going on now dealing with the 
subject of judicial activism. That is a somewhat controversial topic, 
but a few weeks ago there was a publication, an article in Human 
Events, which is a known periodical, on the subject of the 
constitutionality of impeaching judges for going too far, for not 
performing in good behavior, a very scholarly work.
  I do not know what that line should be. I will include for the Record 
the article from Human Events that I am referring to to be 
incorporated:

                   [From Human Events, Apr. 11, 1997]

                   Congress Should Throw the Bums Out

              (By Robert J. D'Agostino and George S. Swan)

       House Majority Whip Tom DeLay (R.-Tex.) recently gave voice 
     to what many conservatives all across America have been 
     thinking for years: Judges who flout the Constitution should 
     be impeached, through the means provided in the Constitution 
     itself, by a majority vote in the House followed by a two-
     thirds vote in the Senate. ``As part of our conservative 
     efforts against judicial activism,'' DeLay said, ``we are 
     going after judges.''
       But Senate Majority Leader Trent Lott (R.-Miss.) poured 
     cold water on the fire DeLay had lit when he told the 
     Washington Times that he would not consider impeaching a 
     judge who had not committed a crime. ``Not me,'' said Lott.
       But it is DeLay, not Lott, who understands what the Framers 
     intended to be the true constitutional role of Congress in 
     curbing abuses of power by federal judges.
       The impeachment of federal judges is a matter of 
     congressional will. Article III, section one, of the 
     Constitution provides that federal judges, including the 
     Justices of the Supreme Court, ``shall hold their Offices 
     during good behavior.'' This is in addition to the right of 
     Congress to remove ``all civil officers'' for ``treason, 
     bribery, or other high crimes and misdemeanors.''

[[Page H2655]]

       The phrase ``good behavior'' commonly is associated with 
     the English Act of Settlement of 1701. That act granted 
     judges tenure for as long as they properly comported 
     themselves. The historical basis and the current perceptions 
     of this language (good behavior) alike signal that the 
     standard applying to federal judges ``is higher than that 
     constitutionally demanded of other civil officers,'' 
     according to Harvard Law School Professor Laurence H. Tribe 
     in this treatise ``American Constitutional Law.''
       Justice Joseph Story, who served on the Supreme Court from 
     1811 to 1845, was of a similar view and expressed concern 
     about judges yielding ``to the passions, and politics, and 
     prejudices of the day.'' It may be inferred that good 
     behavior means fidelity to the Constitution, although Prof. 
     Tribe might have a noninterpretive definition of fidelity.
       As U.S. House of Representatives Minority Leader Gerald R. 
     Ford (R.-Mich.) told the House on April 15, 1970, regarding a 
     bid to impeach Supreme Court Justice William O. Douglas:
       ``What, then, is an impeachable offense? The only honest 
     answer is that an impeachable offense is whatever a majority 
     of the House of Representatives considers it to be at a given 
     moment in history; conviction results from whatever offense 
     or offenses two-thirds of the other body considers to be 
     sufficiently serious to require removal of the accused from 
     office. Again, the historical context and political climate 
     are important; there are few fixed principles among the 
     handful of precedents.''
       An energetic Congress can make sufficient time to impeach 
     errant federal judges. In 1989 the House impeached and the 
     Senate removed both U.S. District Judges Alcee L. Hastings 
     and Walter Nixon.
       In a decision resulting from a procedural challenge by 
     Walter Nixon to his impeachment, the Supreme Court stated, 
     ``A controversy is non-justiciable--i.e., involves a 
     political question--where there is a textually demonstrable 
     constitutional commitment of the issue to a coordinate 
     political department; or a lack of judicially discoverable 
     and manageable standards for resolving it.'' (Nixon v. United 
     States, 1135 Ct 732 [1993]) In other words, there is no 
     judicial review of the impeachment process.
       Impeachment is, in fact, the Court said, ``the only 
     [effective] check on the Judicial Branch by the 
     Legislature.'' To suggest as some have that a legislative 
     check on the judiciary (for other than criminal acts) would 
     eviscerate the principal of separation of powers is absurd. 
     The presidential veto allows the executive to check the 
     legislative branch; the two-thirds override and the power of 
     the purse allow the legislative to check the executive; and 
     the Article III jurisdictional control of federal courts by 
     the legislative and the legislative impeachment powers allow 
     a check on the judiciary.
       Founding Father Alexander Hamilton in ``Federalist Paper 
     No. 81'' envisions Congress' impeachment power as a check on 
     legislating from the bench. While discussing the reasons for 
     considering the judicial the weakest of the three branches of 
     government, he wrote: ``And this inference is greatly 
     fortified by the consideration of the important 
     constitutional check which the power of instituting 
     impeachments in one part of the legislative body [the House], 
     and of determining upon them in the other [the Senate], would 
     give to that body upon the members of the judicial 
     department. This is alone a complete security. There can 
     never be danger that the judges, by a series of deliberate 
     usurpations on the authority of the legislature, would hazard 
     the united resentment of the body intrusted with it, while 
     this body was possessed of the means of punishing their 
     presumption by degrading them from their stations. While this 
     ought to remove all apprehensions on the subject, it affords, 
     at the same time, a cogent argument for constituting the 
     Senate a court for the trial of impeachments.''
       Of course, Hamilton was wrong when he said that judges 
     would never usurp the powers of the legislature. Perhaps this 
     is because Congress has refused the employ that check on the 
     judiciary which he explicitly considered it to possess.
       What then is good behavior? It is what Congress decides. 
     There is no textual limitation in the Constitution, and thus 
     its meaning must be left to the branch of government, the 
     Congress, charged with the responsibility to apply it. 
     Certainly, disregard of the plan meaning of the Constitution 
     and the usurpation of the legislative authority are examples 
     of misbehavior. Prof. John Baker of Louisiana State 
     University Law Center suggests that a usable guide for 
     deciding whether a judge has violated standards of good 
     behavior is ``if on matters pertaining to the Constitution he 
     or she has regularly rendered decisions which can be 
     reasonably characterized as based on `force' or `will' rather 
     than merely judgment. A judge exercises `force' or `will' 
     rather than judgment on an issue . . . if his or her decision 
     is not reasonably based on the explicit text of the 
     Constitution, one of the Amendments or evidence of the intent 
     of the Framers and ratifying bodies of the pertinent part of 
     the Constitution or Amendment.''
       In other words, Prof. Baker suggests that if a judge 
     behaves arbitrarily and capriciously, that is, without the 
     constraint of law, he ought to be impeached. We concur.

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