[Congressional Record Volume 143, Number 106 (Thursday, July 24, 1997)]
[Senate]
[Pages S8041-S8087]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 1998
The Senate continued with the consideration of the bill.
Amendment No. 986
The PRESIDING OFFICER. The Senate will now proceed to consider the
amendment of the Senator from California, which is to be considered
under a pending time agreement.
Mrs. FEINSTEIN. I thank the Chair.
Now, if we may turn to something which is of very deep concern. The
[[Page S8042]]
amendment that I have sent to the desk is on behalf of the ranking
member of the Judiciary Committee, Senator Leahy; the Senator from
Washington, Mrs. Murray; my colleague from California, Senator Boxer;
and the two Senators from Nevada, Senators Reid and Bryan. The
amendment is an amendment to strike and substitute language. The
section we would strike from the bill is section 305, which splits the
Ninth Circuit Court of Appeals on an appropriations bill.
Mr. President, this legislation which I am presenting serves as a
substitute to a nongermane provision of the fiscal year 1998
appropriations bill for Commerce, State, Justice.
Mr. GREGG. Will the Senator from California yield for a question?
Mrs. FEINSTEIN. Yes, I will.
Mr. GREGG. I am sorry to break in. I was wondering if the Senator
would agree to reducing the time of this amendment down to 3 hours
equally divided?
Mrs. FEINSTEIN. I would be happy to.
Mr. GREGG. I ask unanimous consent that, under the prior order on
this amendment, the time be reduced to 3 hours.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GREGG. I thank the Senator from California.
Mrs. FEINSTEIN. Mr. President, this bill, with no hearing, no due
diligence, no consultation with the ninth circuit--any of its judges,
attorneys, bar associations within the circuit--splits the circuit, and
I would like to show you how it splits the circuit. It creates a
twelfth circuit which would comprise Washington, Arizona, Alaska,
Oregon, Hawaii, Idaho, and Montana. If you look at the map--separate
and distinct, alone--separated from the rest, would be the State of
Arizona. The proposal would leave in the ninth circuit only two
States--the States of California and Nevada--along with the territories
of Guam and the Marianas.
Now, what is wrong with that? First of all, the way in which it is
done, which I will address in detail. But second, it creates two
unequal circuits. The ninth circuit and Nevada would have close to 35
million people and the twelfth circuit would have 16 million people.
But look at the proposed distribution of the judges. It would
distribute 15 judges to the ninth circuit and 13 judges to the
remainder--an unequal, unfair distribution of judges.
Here is what the effect would be. In the ninth circuit, you would
have 363 cases per judge. In the new twelfth circuit, each judge would
have just 239 cases. So the judges of the ninth circuit would
immediately have caseloads 52 percent higher than the judges of the
twelfth circuit.
Mr. President, the real point is that there is already a resolution
to this issue. It was passed by the Senate last session, and it has
already passed the House. The resolution is legislation that calls for
a study of all of the circuits, with special emphasis on the ninth
circuit.
The substitute amendment that I am offering today to form a study
commission passed the House of Representatives unanimously in June.
This bill is identical to the House-passed bill. The study commission
represents, I believe, the only principled approach to dealing with an
issue as important and far-reaching as the structure of the U.S. courts
of appeals.
If I may, Mr. President, there has never been a division of a circuit
court without careful study and without the support of the judges and
the lawyers within the circuit who represent the public they serve.
There has never been a division of any circuit in this manner--
arbitrary, political, and gerrymandered. As a member of the Senate
Judiciary Committee, I am deeply concerned that the legislation to
split the ninth circuit has been included in this appropriations bill
with no hearing, no study, no due diligence as to its impact. Section
305 of the bill contains language for this split. It is a misuse, in my
view, of the appropriations process.
Yesterday, Representative Henry Hyde, the chairman of the House
Judiciary Committee, wrote a strongly worded letter, which was
circulated broadly. I would like to quote from it.
I understand that this week the Senate is expected to
consider S. 1022, the Commerce-Justice-State-Judiciary
appropriations bill. Included in the bill is a major piece of
substantive legislation, the ``Ninth Circuit Court of Appeals
Reorganization Act of 1997.'' This provision of the bill
(section 305) would amend Title 28 of the United States Code
by dividing the existing Ninth Circuit into two circuits. As
you well know, altering the structure of the federal judicial
system is a serious matter. It is something that Congress
does rarely, and only after careful consideration.
It is anticipated that an amendment will be offered to
replace the circuit division rider with legislation to create
a commission--
That is what I am trying to do at this time--
to study the courts of appeals and report recommendations on
possible change. This legislation, H.R. 908, has already
passed the House unanimously on a voice vote on June 3, 1997.
A similar bill, S. 956, was passed unanimously by the Senate
in the 104th Congress. This is a far superior way of dealing
with the problems of caseload growth in the Ninth Circuit and
other courts of appeals. I urge your support for the
amendment.
Sincerely, Henry Hyde, Chairman.
So the House is on record supporting a study. The chairman of the
Judiciary Committee of the House writes this letter, and yet this split
is in the bill. The administration has issued a strong statement to the
Senate Appropriations Committee indicating its support for a study
commission and its opposition to the inclusion of such far-reaching
legislation in an appropriations bill.
Mr. President, I hope the President will veto this bill if it should
contain an arbitrary split of the Ninth Circuit Court of Appeals--a
split done politically, as a form of gerrymandering.
In a letter dated July 11, Gov. Pete Wilson reiterated his support
for the commission study and stated that the present effort to split
the circuit involves judicial gerrymandering, apparently designed, and
I quote, ``to cordon off some judges in one circuit while keeping
others in another because of concerns, whether perceived or real, over
particular judges' perspectives or judicial philosophy.''
Less than 2 weeks ago, when Governor Wilson wrote this letter, there
was a proposal that would have divided the ninth circuit into three
circuits and split California in half. Then there was another proposal
that would have left California and Hawaii in a two-State circuit, the
first time in history that a Federal judicial circuit would have
consisted of fewer than three States.
In a matter of hours, an amendment was made to the bill, and we have
the latest proposal which keeps California whole, teams it with Nevada,
isolating a geographical neighbor, Arizona, and placing Arizona with
Oregon, Washington, Hawaii, Idaho, Alaska, and Montana. Mr. President,
I respectfully submit this is not the way to do the people's legal
business. This is not the way to restructure the Ninth Circuit Court of
Appeals.
Let me offer some history. I authored the first proposal to create a
commission on structural alternatives for the Federal courts of appeal
in the 104th Congress during a markup session in the Senate Judiciary
Committee on December 8, 1985. If that had been passed, the job would
have been done by now. The Senate ultimately passed legislation to
create a study commission during that Congress on March 20.
As noted above, in the present Congress, a commission bill identical
to the one I am offering today unanimously passed the House. So both
Houses of Congress have spoken on this issue and both Houses of
Congress have said if the Ninth Circuit Court of Appeals should be
split, no due diligence, consult the judges, consult the attorneys who
practice before it, look at the precedents, see that there is study,
thought and consideration to what would be the best split. None of this
has been done. In a matter of a week, four separate proposals have been
put forward and changed with no opportunity for anyone who practices
law in the ninth circuit, the huge ninth circuit, to indicate what the
impact of those proposals might be.
The House-passed bill was modeled on a proposal I introduced with
Senator Reid on January 30, 1997. The House Judiciary Subcommittee
Chairman Coble and Chairman Hyde moved the bill with the support and
cosponsorship of Representative Berman. The current H.R. 908 represents
a compromise that was worked out in the House and endorsed by every
House Republican and Democrat.
[[Page S8043]]
I should note that the House-passed bill is very similar to a
compromise on a study commission that Senator Burns and I reached
together just a few months ago. This all began with Senator Burns. I
understand his concerns. He has legitimate interests, legitimate
thoughts, and I appreciate them. The last I had heard was Senator Burns
signed off on the study commission. So you can imagine the surprise
when I heard. My goodness, this is on an appropriations bill. And
Members of this body have taken it on themselves to arbitrarily just
decide, willy-nilly, how the ninth circuit should be split.
The House-passed commission study is fully bipartisan, a 10-member
commission. The commission would operate for 18 months, at which time
it would make recommendations to Congress for any changes in circuit
structure or alignment.
I don't think we should subject something as important as the
structure of our courts to political gamesmanship, and that is just
what this is. The study called for in H.R. 908 is a responsible method
of evaluating the current situation and making recommendations that can
provide a sound foundation for Congressional action in the future.
A study is needed to determine whether this or any proposed circuit
division would be likely to improve the administration of justice in
the region. That is the fundamental question: Would a split improve the
administration of justice, and, if so, what should that split be? Even
among those who believe that some kind of split should occur, there is
no consensus as to where any circuit boundary lines might be redrawn.
During the 105th Congress, proponents of a circuit split put forward
these four proposals. One would have split the north from the
southernmost States of the circuit. The second would have chopped the
existing circuit into three separate circuits and split California in
half. The third would have created a narrow stringbean circuit. That
was the same proposal that failed to pass the Senate during the 104th
Congress.
The current proposal, which represents at least the fourth proposal
in the 105th Congress, is a modification of the stringbean circuit.
Again, no due diligence, no hearings, no study, no testimony--nothing.
As I noted before, the proposal isolates Arizona. It combines Nevada.
It separates coastal States that have common maritime law. And that is
why I say it is gerrymandering. I say if it looks like a gerrymander,
talks like a gerrymander, it probably is a gerrymander.
Let's talk about the costs inherent in what is happening here today.
If this bill passes and should go into law, splitting the circuit will
require duplicative offices of clerk of the court, circuit executive,
staff attorneys, settlement attorneys and library as well as
courtrooms, mail and computer facilities. According to the ninth
circuit executive office, neither Phoenix nor Seattle currently have
facilities capable of housing a court of appeals headquarters
operation.
As part of the review of last year's similar proposal to split the
circuit, the GSA estimated that it would cost a minimum of $23 million
to construct new facilities for a headquarters in Phoenix, and I would
be very surprised if it was as little as $23 million. Based on GSA
costs, the ninth circuit executive has estimated that building and
renovation costs for creating or upgrading new headquarters in Seattle
and Phoenix would amount to at least $56 million. Additional combined
outlay of another $6 million in startup costs would be needed to outfit
both Phoenix and Seattle.
The CBO last year estimated the cost of duplicative staff positions
at $1 million annually. The new proposal calls for two coequal clerks
of the court in the twelfth circuit. Assuming each clerk would have the
customary deputy clerk and staff attorney, an additional $300,000 in
salaries would be added to the total. So the new twelfth circuit would
cost an additional $1.3 million annually for duplicate salaries, and
minimum of $25 million in Phoenix and an additional amount for Seattle.
It is estimated the cost would run in the neighborhood of $60 million.
This wouldn't be so bad if there just hadn't been approved and spent
$140 million to rehabilitate and seismically equip the Ninth Circuit
Court of Appeals in the city of San Francisco and Pasadena--$140
million has just been spent. I just visited the San Francisco ninth
circuit. It compares with the U.S. Capitol. There is a brand-new
library already built in, magnificent chambers, one library that is
solid redwood, marble that is incredible, lighting fixtures that go
back well over 100 years. It is an amazing and beautiful building.
Under the configuration of States proposed for the new twelfth
circuit, the circuit executive estimates that upward of 50 percent of
the space recently renovated in San Francisco and Pasadena at a cost of
$140 million would no longer be needed. The space was specifically
designed to meet the business needs of the court of appeals. The
executive office estimates, ``It would cost many tens of millions of
dollars to modify the space to make it usable by tenants other than the
court of appeals.''
Let me talk for a minute about the real risk of an impetuous
political and gerrymandered split of the ninth circuit.
Forum shopping: Organizations and entities whose activities cut
across State lines, and those who sue them, would be able to forum shop
to take advantage of favorable precedents or to avoid those that are
unfavorable. And I suspect, frankly speaking, that this is just what is
behind this split. Thus, an additional burden would be placed on the
U.S. Supreme Court to resolve conflicts that are now handled internally
within the circuit.
Here are some examples provided by the ninth circuit of how dividing
it could invite forum shopping: water disputes concerning the Colorado
River, which affect California, Nevada, and Arizona; commercial
disputes between large contractors like Boeing and McDonald--perhaps
that is resolved now--or Microsoft and Intel; different legal
precedents affecting the shipping industry along the coastline of the
continental United States and Hawaii.
Think of the complications created if different commercial and
maritime rules governed the Port of Los Angeles and the Port of Tacoma
and Hawaii. The ninth circuit includes a vast expanse of coastal area,
all subject to the same Federal law on cargo loading, on seaman's
wages, on personal injury, and maritime employment. Vessels plying the
coast stop frequently at ports in California, Washington, Alaska,
Hawaii and the Pacific territories. If the circuit were to be divided,
seamen would have an incentive to forum shop among port districts in
order to predetermine the most sympathetic court of appeals to hear the
case.
In the commercial law area, all of the States in the circuit have
considerable economic relations with California because of its large
and diverse population. In a recent case, Vizcaino v. Microsoft, the
ninth circuit decided to hear a case en banc concerning whether
Microsoft contractors were entitled to the same ERISA benefits and
stock options as were regular employees. Microsoft is a large
corporation with primary offices in Washington but significant business
operations in California. If the ninth circuit were split, Microsoft or
its employees might choose to bring a lawsuit in either the ninth or
twelfth circuit, in hopes of finding a more sympathetic court.
The judges and lawyers of the ninth circuit overwhelmingly oppose
what is happening in this bill. Let me repeat that. The lawyers and
judges in all of the ninth circuit States overwhelmingly oppose what is
happening in this State, Justice, Commerce appropriations bill.
On four occasions, the Federal judges in the ninth circuit and the
practicing lawyers in the ninth circuit judicial conference have voted
their opposition to splitting the circuit. The official bar
organizations of Arizona, California, Hawaii, Idaho, Montana and
Nevada, and the National Federal Bar Association, all have taken
positions against circuit division. No State bar organization in the
circuit has taken a position in favor of circuit division or what is
happening in this bill.
Candidly speaking, this is a political decision of Senators of the
Appropriations Committee to affect the legal business of 50 million
people in the United States with an arbitrary split, gerrymandered, of
the Ninth Circuit Court of Appeals. Candidly speaking,
[[Page S8044]]
also, the ninth circuit is large. California alone is predicted to be
50 million people by the year 2025.
Whether the circuit should be split or not, I can't say. I strongly
believe it is a decision that should not be made, however, either
politically or in a cavalier fashion. The decision should not be made
without study, without hearing, without comment from those lawyers and
judges whose clients are affected by it.
If--and I say if--the circuit is eventually split, it should be the
product of diligence, of study, of hearing, of commentary. It should be
part of an analysis of how the circuit courts are functioning in the
United States. There may well be a better split involving other States.
I don't know, and I would hazard a guess that no one in this Chamber
knows that either.
But this does mean a careful study of population should be
undertaken. It means an even distribution of caseload by judge, not a
rammed-through circuit split that has a 52 percent higher caseload for
judges in this new ninth circuit than in the twelfth circuit. On its
face, it is patently unfair. Anybody who looks at any split that says
you split it so that one set of judges has double the number of cases
than the other--that doesn't meet a simple test of fairness.
There should be a careful study of precedents, of commercial law, of
maritime law, of the other aspects of precedents. California now has
the largest consumer market in the United States in Los Angeles; the
third largest in the San Francisco Bay area. It is a huge consumer
market, and it is going to be bigger with all kinds of
intercommunication among these States.
There should be a study of costs. I pointed out the duplication of
staff, I pointed out the need for two new courthouses when two already
have been refurbished at a cost of $140 million for the taxpayers. All
of this is being done without any study, any hearing, any commentary.
It is not something of which this great body can be proud.
I notice that the distinguished Senator from Nevada is here, and if I
might ask him, I believe he would like 10 minutes? I will be happy to
yield to him.
Mr. GREGG. Mr. President, if the Senator from California wouldn't
mind, I would like to go from side to side.
Mrs. FEINSTEIN. I will be happy to do that.
Mr. GREGG. I yield to the Senator from Washington 20 minutes.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, there can be no serious argument posed to
Members in body that it is not appropriate, maybe beyond appropriate,
for all practical purposes necessary, for the proper administration of
justice that the U.S. Court of Appeals--almost twice as large as the
next largest court of appeals and almost three times as large in
population and in caseload as the average circuit--should not be
divided.
Twenty-three years ago, a commission, the Hruska Commission, said the
Ninth Circuit Court of Appeals was too large and should be divided;
that no circuit court of appeals should have more than 15 judges. The
reasons, of course, is collegiality, the prompt and effective
administration of justice. Any other argument is simply a matter of
delay, simply a matter of a maintenance of the status quo.
The Ninth Circuit Court of Appeals should be divided. There have been
bills on this subject and hearings on this subject in most of the
Congresses from 1975, 22 years ago, to date. The very proposal that is
before us right now, with minor changes, was recommended by the
Judiciary Committee in the last Congress and did not come to a vote
because it was clear that it would be filibustered as an independent
vote. That is at least one of the reasons that when he comes to the
floor, the chairman of the Judiciary Committee will recommend the
rejection of this amendment and supports the division that is included
in this bill.
But, Mr. President, before I get back to the merits of the proposal,
I want to express my deep concern over some portions of the opposition
that come to this bill from California and perhaps elsewhere. One of
the reasons that the Senator from California can describe this bill as
a gerrymander, one of the reasons that she can call for delay is
because the proponents of the division have acceded to the requests of
the Senators from the various States that are affected by this
division.
Should we have another study commission? That study commission, if it
is remotely objective, will recommend the division of the ninth circuit
not into two, but into three new circuits, a proposition that this
Senator feels to be highly appropriate. The only way to create three
new circuits out of the present ninth circuit is to divide the State of
California and to place it into two circuits: one centered in San
Francisco, the other centered in Los Angeles.
That recommendation has been with us for many years. That
recommendation was incorporated into the first version of this bill.
The two Senators from California are vehemently opposed to that
recommendation, and I strongly suspect that if we go 2 years and have
another study commission and it comes up with dividing California, they
will find a reason to object to it again and to filibuster the
proposal.
So what did the sponsors of the division do? The sponsors of the
division said, ``Fine, we will accede to the wishes of the Senators
from California. We will make this a two-new-circuit bill.'' California
will be left united.
The Senators from Nevada, with some real justice with respect to the
bill reported by the Judiciary Committee 2 years ago, stated that they
didn't like the division; that Nevada felt more drawn to California
than it did to the Pacific Northwest and Arizona. And so in this bill,
we have acceded to the wishes of the Senators from Nevada and have left
that State in the ninth circuit with the State of California.
That is the reason that the circuit, as it appears in the bill, is
not contiguous. But in the days of the Internet, of e-mail, of faxes,
of air transportation, there is nothing but history to require that
circuits be made up of contiguous States. And, of course, Alaska and
Hawaii have never been contiguous to the States in the ninth circuit.
Nor has Puerto Rico and the Virgin Islands to the circuits to which
they are attached.
Finally, the State of Hawaii, through its Senators, when it was
determined there was to be a bill, elected, to my delight, Mr.
President, that it would rather be in the smaller, the more intimate,
the more collegial circuit, the new twelfth, and that appears in the
bill. Then when we asked the representatives of Guam and the trust
territories of the Pacific, they said, while they really don't want to
change that, of course, they prefer to stay with Hawaii.
If the great majority of the Senators from the Northwest and from
Arizona wish a new circuit that is so logical, and if they have
deferred to the wishes of the Senators from Colorado and Nevada as to
their desires, why should we say no on the floor of the Senate to those
who wish the division? What business is it of the Governor of
California to tell us how the ninth circuit should be constituted? I am
deeply troubled that Senators whose own wishes, reflecting what they
think is best for their States, have been respected, refuse so
arbitrarily as they and their predecessors have for more than two
decades to accede to ours.
Mr. President, there are 28 positions authorized for the Ninth
Circuit Court of Appeals. There are 10 more requested by those judges
and approved by the Judicial Council. That is a collegial circuit? At
the number 28, three-judge panels that are chosen by lot have 3,276
possible combinations of those three judges. You, Mr. President, one of
the youngest of our Members, could be appointed to the ninth circuit,
could serve on it for 30 years, and the chances are you would never
serve on the same panel of three twice in that entire period of time.
That is collegiality?
The ninth circuit is slow from the time appeals are filed until they
are decided. It is notoriously reversed more frequently than in the
case of any other circuit. When I was attorney general of the State of
Washington, we figured that if we could get the Supreme Court of the
United States to take certiorari from the ninth circuit, we had at
least a 75-percent chance of winning in the U.S. Supreme Court, of
causing it to repeal the circuit.
At one level, that is not a totally relevant argument, because the
two new
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circuits would start with exactly the same judges they have now, and I
can't note any difference in philosophy from those who come from the
States in the old ninth circuit under this proposal and the new twelfth
circuit, and, of course, they are nominated by the same Presidents and
confirmed by the same Members of the U.S. Senate. But I suspect that if
the judges who work together knew one another a little bit better than
they do now, there would at least be a marginal improvement in the
number of times during which they are reversed.
Mr. President, there is simply no justification whatsoever for the
maintenance of this huge and unwieldy circuit. The Senator from
California said in 20 years, California itself will have 50 million
people. We have a wonderful First Circuit Court of Appeals, much
smaller than the twelfth we propose in this legislation. New York and
Pennsylvania, that don't have the population of California combined,
have always been in separate circuits, and they are both on the
Atlantic Ocean, and they both have to deal with the same kind of
admiralty law.
No, Mr. President. The time has come. There have been hearings
galore. Those hearings have occupied a quarter of a century. There have
been bills reported. Another study, another delay, only to be followed
by another attempt to delay after that when a three-circuit division is
proposed.
No, Mr. President. The time is now. The division is appropriate. It
will not be the last in the history of the U.S. courts. But it seems to
me we should go ahead. From a personal point of view, I am somewhat
unhappy that while we have done all we can to accommodate California,
California refuses to accommodate us.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. How much time is remaining on our side, Mr.
President?
The PRESIDING OFFICER. Fifty-eight minutes.
Mrs. FEINSTEIN. I thank the Chair.
Mr. President, I yield 10 minutes of the time to the ranking member
of the Judiciary Committee, Senator Leahy.
Mr. LEAHY. Mr. President, I have been on the Appropriations Committee
for 20-some odd years, on the Judiciary Committee about the same amount
of time, and I understand that periodically, out of necessity, we have
some items of legislation on the appropriations. But this is about as
amazing a step as we could take to determine the fate of the ninth
circuit on an appropriations bill.
It is not the way to do it. We say we are going to split the Nation's
largest court of appeals on this appropriations bill. We have had no
hearings, no testimony, no public deliberations on the proposed split
before us.
Well, the 45 million people that live in these nine Western States
deserve a more considered approach. What we ought to do is have the
Senate Judiciary Committee hold hearings, conduct an independent study
to determine whether this or any other proposed circuit division is
necessary, find out what is the best way to do it, and not just do it
basically based on one vote with very little debate in a committee,
then on the floor in an appropriations bill.
Last year, the Senate unanimously passed a bill to create a
bipartisan commission to study if and how the ninth circuit should be
restructured. And that is what the House has done this year. The
amendment of the distinguished Senator from California [Mrs.
Feinstein], is the same language as H.R. 908, the House-passed bill.
What the Senator from California has done is a principled approach.
It is also the approach supported by the majority of the judges and
lawyers in the areas served.
Are there problems in the ninth circuit? Of course there are. Let me
point out to you, it is a problem not caused by the circuit, but by the
U.S. Senate; 9 of the 28 judgeships in the ninth circuit are vacant.
There are nominees up here before the Senate.
As a result, the national average is 315 days to get a decision, but
for the ninth circuit, it is 429 days. We have people in the ninth
circuit who pay taxes like everybody else but who have to wait an extra
114 days. In fact, the ninth circuit canceled 600 hearings this year
because we cannot get judges confirmed to sit there.
And what does that mean? It means that a multimillion-dollar
settlement of a nationwide consumer class action against a maker of
alleged defective minivans is not heard; a $71.7 million antitrust case
involving the monopolizing of photocopy markets is not there; an
arsenic and lead poisoning class action case with a $68 million
settlement agreement is not being heard.
What is happening, Mr. President, is that we go on and try to do
little quick fixes because somebody wants to at the moment on an
appropriations bill.
What we ought to do, if we want to really do something to help
justice in this country, is for the leadership of the Senate, that is,
those who schedule debate, in this case, the majority leader, to take
some of these judges and allow us to confirm them.
The distinguished senior Senator from Utah, the chairman of the
Senate Judiciary Committee, is on the floor. He has been working hard
to get judges heard. But no matter how many we hear in the Judiciary
Committee, unless they are confirmed on the floor of the Senate, it
does not do any good.
At this point, incidentally, we have confirmed--and we are down to
the seventh month of this session--we have confirmed six judges. We are
about to take another vacation. No more judges will be confirmed. That
is less than one a month.
There are over 100 vacancies. We have about 40 or so nominees up here
waiting to be confirmed. We cannot even get them confirmed. Here is
one, William Fletcher, nominated in 1995; still waiting. Richard Paez,
the first month of 1996; still waiting. Margaret McKeown, March 1996;
still waiting. This goes on and on and on.
Here is what we have in vacancies--102 vacancies. This Senate has
confirmed six.
We all give speeches of needing judicial reform and needing law and
order. You have a whole lot of courts where, because the U.S. Senate,
because the leadership of the U.S. Senate will not let us confirm
judges, we have courts where prosecutors have to kick cases out, that
they have to plea bargain and everything else because there are not
enough judges to hear them.
Now, when you have proponents of the split of the ninth circuit say
it is because justice is being denied, the reason justice is being
denied is not geography; the real reason justice is being denied is
because judges are being delayed.
These are four well-qualified in the ninth circuit, four well-
qualified people. In fact, they have the highest ratings there are. One
nominee has actually been favorably reported by the Judiciary
Committee, but no--no--action here.
What is happening, Mr. President, is not something that is going to
get fixed by the Judiciary Committee, but is going to get fixed if the
U.S. Senate does the duty it is supposed to. If we have judges here
people do not like, vote them down. We held up the Deputy Attorney
General of the United States, Eric Holder, week after week. ``Oh, we've
got Senators, we cannot tell you their names, of course, but we have
Senators who have real problems, real problems with this man. We can't
bring him to a vote. We've got real problems.''
We brought it to a vote. I asked for a rollcall vote. I thought,
well, at least let all those Senators, unnamed Senators, who had an
excuse for holding the No. 2 law enforcement officer of this country--I
said, now we will know who they are, because, obviously, they have
problems that they would hold up this man all these months, so they
will vote against him. And the clerk called the roll.
And do you know what it was? You know how many voted against him? You
say, maybe 30? Probably 20, 10, I ask my good friend, the ranking
member? You know how many it was?
Mr. HOLLINGS. How many?
Mr. LEAHY. Zero. I cannot quite say it--I cannot quite say it like my
good friend from South Carolina. He is the only person I know who can
get five syllables in the word ``zero,'' but zero. It was 100 to
nothing; 100 to nothing.
But what we have is, while the Judicial Conference, Chief Justice
Rehnquist was asking for more justices, we have 27 vacancies in the
court of appeals. We have all kinds of problems. And the ninth circuit
is not
[[Page S8046]]
going to be helped by politicizing it on an appropriations bill.
The ninth circuit can at least be helped by doing what the Senator
from California said, have a nonpartisan professional panel look, make
a recommendation, go to the Senate Judiciary Committee, vote it up or
down, which is exactly what we should be doing on these judges. If we
do not want them, vote them down.
But what we have is always some mysterious person who has a problem.
But when we have to vote in the light of day, there is no mysterious
person at all because they vote for them. So, Mr. President, I know
there are others who wish to speak.
Mr. President, I ask unanimous consent that a letter be printed in
the Record addressed to Majority Leader Lott from all the leaders of
seven national legal groups, asking him to finally move these judges
that are being held hostage.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
American Bar Association,
July 14, 1997.
Hon. William J. Clinton,
The President, The White House,
Washington, DC.
Hon. Trent Lott,
The Majority Leader, U.S. Senate,
Washington, DC.
Dear Mr. President and Mr. Majority Leader: Among the
constitutional responsibilities entrusted to the President
and the Senate, none is more essential to the foundation upon
which our democracy rests than the appointment of justices
and judges to serve at all levels of the federal bench.
Notwithstanding the intensely political nature of the
process, historically this critical duty has been carried out
with bipartisan cooperation to ensure a highly qualified and
effective federal judiciary.
There is a looming crisis in the Nation brought on by the
extraordinary number of vacant federal judicial positions and
the resulting problems that are associated with delayed
judicial appointments. There are 102 pending judicial
vacancies, or 11% of the number of authorized judicial
positions. A record 24 of these Article III positions have
been vacant for more than 18 months. Those courts hardest hit
are among the nation's busiest; for example, the Ninth
Circuit Court of Appeals has 9 of its 28 positions vacant. At
the district court level, six states have unusually high
vacancy rates: 10 in California, 8 in Pennsylvania, 6 in New
York, 5 in Illinois, and 4 each in Texas and Louisiana.
The injustice of this situation for all of society cannot
be overstated. Dangerously crowded dockets, suspended civil
case dockets, burgeoning criminal caseloads, overburdened
judges, and chronically undermanned courts undermine our
democracy and respect for the supremacy of law.
We, the undersigned representatives of national legal
organizations, call upon the President and the Senate to
devote the time and resources necessary to expedite the
selection and confirmation process for federal judicial
nominees. We respectfully urge all participants in the
process to move quickly to resolve the issues that have
resulted in these numerous and longstanding vacancies in
order to preserve the integrity of our justice system.
N. Lee Cooper, President, American Bar Association; U.
Lawrence Boze, President, National Bar Association;
Hugo Chavaino, President, Hispanic National Bar
Association; Paul Chan, President, National Asian
Pacific American Bar Association; Howard Twiggs,
President, Association of Trial Lawyers of America;
Sally Lee Foley, President, National Association of
Women Lawyers; Juliet Gee, President, National
Conference of Women's Bar Association.
Mr. LEAHY. Mr. President, let us also not add to the partisanship we
have had with stopping judges from being confirmed by now showing even
more of a capricious nature on the part of the U.S. Senate by splitting
the ninth circuit with no hearings, no debate, no thoughtful
consideration.
I yield the floor.
Mr. GREGG addressed the Chair.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, I just mention briefly there have been
considerable hearings on this issue, testimony before our committee on
this issue, and the matter has been around and been discussed at length
in a variety of forums.
Mr. President, how much time do we have?
The PRESIDING OFFICER. Seventy-seven minutes and eighteen seconds.
Mr. GREGG. And the Senator from California has?
The PRESIDING OFFICER. Forty-nine minutes.
Mr. GREGG. We have 77 minutes?
The PRESIDING OFFICER. Yes.
Mr. GREGG. I yield, in sequence, 5 minutes to the Senator from Utah
and 20 minutes to the Senator from Montana, if that is acceptable.
Mr. HATCH addressed the Chair.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I rise today to speak in support of the
appropriations provision effecting a split of the Ninth U.S. Circuit
Court of Appeals, and to respectively oppose the amendment offered by
my colleague from California. Splitting the ninth circuit is
appropriate at this time for three principal reasons: First, its size.
The ninth circuit is the largest of the 13 federal circuits. Indeed,
the ninth circuit is larger than the 1st, 2d, 3d, 4th, 5th, 6th, 7th
and 11th circuits combined. The population of the States comprising the
ninth circuit is 49,358,941, almost one-fifth of the Nation's
population. The size of the circuit also has an effect on the caseloads
of the judges of the circuit. The ninth circuit's caseload in recent
years has been in excess of 7,000 cases a year, far and away more than
in any other circuit.
The second reason to support this proposal is a function of the
first. The ninth circuit's size also negatively impacts the internal
consistency of law within the circuit. There are currently 28 seats on
the ninth circuit, and many who are claiming that Congress should
significantly add to that number at least 10 more seats--so, 38 seats.
A circuit comprised of so many judges is entirely unmanageable and
undermines important considerations of judicial economy, efficiency and
collegiality. Because the circuit is so large its judges cannot sit
together to hear cases en banc as do other circuits, and accordingly
the court has lost the necessary sense of judicial collegiality, and
coherence of its circuit-wide case law. I would venture that there are
as many contradictory rules of law within the ninth circuit as there
are within all the other circuits combined. This has, I believe,
contributed to a trend by which some ninth circuit judges feel totally
free to disregard precedent, be it circuit precedent or even the
Supreme Court's rulings. Just this past term, the ninth circuit had an
astounding reversal rate of 95 percent before the Supreme Court.
Twenty-eight of 29 cases were reversed. And the usual rate is no less
than 75 percent of their cases are reversed. One ninth circuit judge
has expressed chagrin at this regrettable situation, explaining that
``the circuit is too large and has too many cases--making it impossible
to keep abreast of ninth circuit decisions.''
The third cost of having such a large circuit is the resulting delay
in having cases decided. The ninth circuit is, in fact, one of the
slowest in turning around case decisions from the time of filing. And,
because of its size, some cases, especially high-profile ones, appear
to be subject to manipulation.
These important considerations have persuaded me that the ninth
circuit should be split. And, I am happy to report that I believe some
of my colleagues on the other side of the aisle, from States within the
ninth circuit, will vote against the present amendment, and support the
split provided for in the present bill.
And finally, I would like to say a word about the way in which this
proposed split has come to the floor. Some argue that a significant
development like splitting a judicial circuit should not arise in the
context of an appropriations bill--that the committee of jurisdiction,
in this case the Judiciary Committee, should have the opportunity to
review and comment about this proposal. I could not agree more with the
proposition that this is a serious matter, deserving serious
consideration. I point out, however, that the Judiciary Committee has
indeed examined the advisability of splitting the ninth circuit. In
just the last Congress, the Judiciary Committee held hearings on the
subject, hearing from judges of the circuit and others knowledgeable
about the implications of a split. After that hearing, the committee
reported out a bill that, in many regards, is similar to the one before
the Senate today.
Accordingly, I am confident that the Senate has before it today a
well-considered and desperately needed proposal to divide the ninth
circuit. This is a proposal that serves the interests of judicial
efficiency, stable case law,
[[Page S8047]]
and equal justice for Americans within the ninth circuit.
With all due respect, therefore, I must take exception to the
proposed commission my colleague from California is now offering by way
of an amendment. I think the time for a split of the ninth circuit is
now. I believe we have studied the matter thoroughly, and that there is
no need for further hearings or a commission.
Frankly, I would expect that, were we in fact to proceed with another
commission, it would simply make a recommendation similar to the Hruska
report of nearly 25 years ago--namely, to divide the State of
California. I don't have any doubt in my mind that that is what a
future commission will decide, because if you want to get population
equality, you are going to have to divide California. This does not do
that, in deference to the Governor of California and, I might add, the
two Senators from California, and to the various Congresspeople from
California. And I might add, should this amendment succeed--the
amendment of the distinguished Senator from California--and a
commission be created that ultimately recommends splitting California,
I may well be compelled, as will others in this body, to support that
split and finally put this matter to rest. So this is dangerous stuff
to be playing around with because I believe that there will be a split
of California if you go the commission route.
Now, while I recognize that many are greatly concerned about the
prospect of dividing the State of California, I have to tell everybody
today that this is pretty certain to result if this amendment is
enacted.
I urge my colleagues to vote against the amendment offered by my
colleague from California. I believe, in the best interests of all
concerned, this is an adequate and reasonable response. And, frankly,
we have given States within the total area to be divided their right to
choose which circuit they will belong to. I think that is an
appropriate, reasonable, decent way to proceed. Otherwise, we are just
delaying this another 2, 3 years, and we will come up with another
split of California, which will be vigorously fought against by Members
of the California delegation in both the House and Senate, and we will
wind up right back where we are, or California will be split. If it is
split, I think it would be to the disadvantage of California, as I view
it.
I hope our colleagues will vote down this amendment, as well-
intentioned as it is, and will vote for this split, because it would be
a split that would, I think, bring about collegiality, and it will
bring about a better functioning two circuits, and it will give the
States who want the split a chance to have their own circuit, where
they can work together in the best interests of their States.
If California continues to be the most reversible set of judges in
the Nation, then they will have to live with that. Then everybody will
know exactly who are the people that are doing this, who are the
judicial activists, the ones undermining the judicial system, and are
really causing California the pain, struggles, and difficulties that
come from an out-of-control, judicially activist Ninth Circuit Court of
Appeals.
I yield the floor.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I do not see the Senator from Nevada
at the moment. How much time do I have remaining?
The PRESIDING OFFICER. The Senator has 48 minutes 40 seconds.
Mrs. FEINSTEIN. I yield 5 minutes to the Senator from Washington
[Mrs. Murray].
The PRESIDING OFFICER. The Senator from Washington [Mrs. Murray] is
recognized.
Mrs. MURRAY. Mr. President, I rise in strong support of the Feinstein
amendment. We simply should not--must not--divide the Ninth Circuit
Court of Appeals on an appropriations bill. It is an irresponsible way
to proceed with such a fundamentally important question about how we
best administer justice in the West.
I want to remind my colleagues that this body, the Senate, in the
104th Congress twice approved a study commission bill. In June, the
House of Representatives sent us a bill, H.R. 908, establishing a
similar commission. That bill is waiting at the desk for our action.
House Judiciary Chairman Henry Hyde has voiced his dismay at this end
run around his authorizing committee. Tuesday he wrote to Chairman
Hatch, saying: ``As you well know, altering the structure of the
Federal judicial system is a serious matter. It is something that
Congress does rarely, and only after careful consideration.''
Mr. President, I am not necessarily opposed to a split of the ninth
circuit, but I am adamantly opposed to an appropriation's rider
mandating such a gerrymandered split. As Chairman Hyde suggested, we
need judicial experts thoroughly analyzing the courts and advising us
on what makes sense from a national perspective.
With so many of those who work directly in the ninth circuit opposed
to this split, it seems clear we need guidance before we act. The White
House opposes this split, the majority of judges on the ninth circuit
oppose this split, and the majority of bar associations of the affected
States oppose this split. Simply put, this is not the right way to
proceed.
We need answers to some important questions first. How much will this
cost? Should we create a virtual one-state court? Should Arizona become
a part of the tenth circuit? Where should we place a new circuit's
courthouse? How many judges should serve in each circuit and from which
States should they come? Should we break the ninth circuit into three
circuits? How will our Pacific maritime law be affected? Before I
participate in breaking up an institution that is more than 100 years
old, I want those--and many more questions--answered.
Mr. President, I also have another concern. I find it interesting
that supporters of this rider so often refer to the pace at which the
ninth circuit does its business. Yet, these same Senators have done
little or nothing to fill the many vacancies plaguing the ninth
circuit. An outstanding member of the Washington State legal community,
Margaret McKeown, has been languishing for nearly 2 years in this body.
She has yet to receive a hearing. This is unconscionable and this has
real impact on the administration of justice. To make the ninth
circuit--or any circuit--work, we must have judges. Let's get the
confirmation process moving, and that will stop the glacial pace that
people are concerned about.
Finally, I want to remind my colleagues that we have passed almost
every fiscal year 1998 appropriations bill without contentious riders.
We should have learned from the disaster relief bill what can happen
when these riders dominate the process. I believe we should maintain
the bipartisan approach we've used so far and avoid letting this
important bill get bogged down with riders.
Let's do our appropriations job right and let's do the very serious
job of reconfiguring the judiciary right. I urge my colleagues to
support the Feinstein amendment establishing a commission to guide the
Congress on how best to resolve any real or perceived difficulties in
the administration of justice in the ninth circuit.
I yield my time back to the Senator from California.
Mr. BURNS. Mr. President, I rise to oppose the amendment that would
strike the provision from the Commerce, State, Justice appropriations
bill to divide the Ninth Circuit Court of Appeals. We have heard so
much said today about how the bar associations oppose it, the judges
oppose it, and nobody has said anything about the people. Are they
secondary in our justice system? We are supposed to be serving the
people, and I think the bar associations do, too. I happen to believe
that they believe very strongly in the kind of service that they
deliver to their clientele. But we haven't heard that today.
If there were a judicial equivalent of baseball's famous ``Mendoza
line,'' marking the mediocre batting average of .200 below which
players dread dropping, then the Ninth U.S. Circuit Court of Appeals
would be laboring in the farm leagues.
In terms of the rate at which its decisions are reversed by the U.S.
Supreme Court, the ninth circuit's record for failure is practically
unblemished. In recent years, on average, more than 80 percent of
rulings by the ninth have
[[Page S8048]]
been overturned. This past term, the Supreme Court reviewed 29 cases
from the ninth circuit--it reversed, in part or in whole, an
astonishing 28 of them.
The ninth circuit in 1996-97 alone was reversed, often 9 to 0, on
decisions asserting the right to die, requiring sheriffs to conduct
federally required but unfunded background checks on people who buy
guns, and denying the right of groups who were economically harmed by
the Endangered Species Act to sue even though the law gives legal
standing to any person.
While the high court undoubtedly chooses many cases with the express
intent of reversing them, the ninth circuit this past year has wrecked
the curve. For instance, the eighth circuit, which had the second-most
cases reviewed, had a reversal-and-affirmance record of only 4 to 4.
But ``this isn't baseball,'' says Judge Stephen S. Trott of Boise,
ID, according to a recent Los Angeles Times article.
Agreed. The jurisprudence of our Federal appellate court system is
far more serious than a game. In my view, the fact that the ninth
circuit is undeniably out of step with the rest of the Nation is
perhaps the least of the multitude of reasons to consider splitting
this giant court.
First, the ninth circuit outstrips the other circuits in all measures
of size, both physically and legally. The ninth circuit encompasses a
land mass the size of Western Europe. Its nine States and two
territories--Alaska, Arizona, California, Hawaii, Idaho, Montana,
Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands--
stretch from the Arctic Circle south to the United States-Mexico border
and west across the international dateline. It has a population of
nearly 50 million people, about 1 in 5 Americans, and is expected to
grow by 43 percent over just the next 13 years.
Second, the ninth's caseload is the largest. More than 8,500 appeals
were filed last year, and that number is expected to jump by nearly 700
percent in the next 25 years, making the ninth less than a model of
fair and speedy justice. In fact, of the 11 regional circuits and the
District of Columbia circuit, it ranks next-to-worst in the duration of
pending appeals--an average of 429 days, usually more for criminal
cases, compared to the national average of 315 days.
These delays are costly. Appeals take time and money, and they're
putting the squeeze on my State. Litigants and attorneys who must make
frequent and expensive trips to San Francisco are pleading for reform.
Third, the problems of geography and population are two factors that
contribute to judicial inconsistency on the ninth. Because the 28
judgeships of the ninth--nearly twice the maximum number recommended by
the U.S. Judicial Conference--are scattered so far and wide, the court
has experimented with limited en banc proceedings in which a panel of
11 judges decides the most important cases. By relaying on this
approach, conflicting court decisions are common. The right hand
doesn't know what the left hand is doing. As a result, decisions by the
ninth are often narrow and set few precedents for use by judges in
other cases.
In fact, several of the Supreme Court Justices criticized the Ninth
Circuit's en banc decision in Washington versus Glucksberg that the due
process clause of the 14th amendment guarantees critically ill
individuals a limited right to assisted suicide. Even some liberal
members of the Court, such as Justice Ginsburg, expressed concern that
the Ninth Circuit opinion seemed to give Federal courts a ``dangerous
power.''
Size was a factor leading a congressional commission in 1973 to urge
splitting the fifth and ninth circuits. Congress chose to split the
fifth, while the ninth has become bogged down in political squabbles
and has had to make due with its enormous size.
One cannot make the argument this has not been heard, or that it has
not been studied when in actuality it has.
Some press accounts have portrayed the debate as a clash of party
ideologies, of conservatives who favor the split versus liberals who do
not. But such a view is short-sighted. These press accounts overlook
the bipartisan support behind dividing the ninth. For many of us, it is
just as simple as wanting a court that is closer in every sense to the
people it serves.
Supreme Court Justice Anthony Kennedy has publicly noted the merit of
division. The U.S. Department of Justice has recently said ``the sheer
size of the Ninth Circuit, even without its attendant management
difficulties, argues for its division.'' Montana Governor Marc Racicot,
a former State attorney general, favors the idea. And I would now like
to submit a letter from Governor Racicot supporting this split.
Mr. President, I ask unanimous consent that the letter be printed in
the Record.
There being no objection, the letter was ordered to be printed in the
Record, as follows:
Office of the Governor,
State of Montana,
Helena, MT, July 22, 1997.
Senator Conrad Burns,
U.S. Senate, Washington DC.
Dear Senator Burns: I would like to submit this letter in
support of an amendment to the appropriations bill for the
Departments of Commerce, Justice and State, the Judiciary,
and related agencies for the fiscal year ending September 30,
1998. The amendment would divide the Ninth Circuit Court of
Appeals and create a Twelfth Circuit Court of Appeals made up
of the states of Alaska, Arizona, Hawaii, Idaho, Montana,
Oregon, and Washington. As you know, I have been supportive
of this effort for a long time and I continue to support the
proposal for the reasons stated below.
The Ninth Circuit, of which Montana is currently a part, is
simply too large to effectively respond to the needs of those
it serves. That Court has 28 judges making decisions for 9
states and 2 territories, with a population of between 40 and
50 million people in an area that encompasses about fourteen
million square miles. The next largest circuit has a
population of under 30 million. California cases alone
represent over half of the Ninth Circuit's caseload and the
number of judges exceeds by twelve the next largest appellate
court, the Fifth Circuit, and is sixteen more than the
average appellate bench. I cannot imagine anyone making a
compelling argument that a judicial unit of government this
size can be administratively efficient.
As you know, our system of jurisprudence relies upon the
principle of ``stare decisis'' or precedent. With a circuit
and court so large, most cases must be heard by smaller
panels of judges, with increased reliance upon staff and
summary procedures. With 28 judges, there are over 3,276
combinations of panels that may decide cases that involve
similar issues. This leads to conflicting and unpublished
opinions, reduced communications among judges and little
consistency in the court's determinations. The lack of
consistency in a court's decisions, in turn, makes our system
of justice unpredictable and unreliable. As a result, the
body of established precedent in the circuit can be rendered
meaningless. There is, in essence, a diminution of precedent,
which undermines the stability and predictability of the law,
and actually leads to increased litigation.
I have questioned whether the operational costs of such a
large system are comparatively higher. Travel expenses and
efficiency of judges and staff should be examined to
determine if significant efficiencies could be produced in a
smaller circuit. It is not true that a new circuit would
result in attorneys traveling to the same cities for argument
as before. Montana attorneys often are ordered to San
Francisco for argument.
The size of the Ninth Circuit also seems to bear upon the
length of time it takes to make decisions. The median time to
dispose of a case--from the time of filing a notice of appeal
to the final decision on the merits--is 14.6 months.
Arguments will be made that much of this time is consumed by
counsel rather than the Court; however, I can recall as
Montana's Attorney General waiting a long time for the Court
to decide cases for which the record had been submitted
months or years before.
Habeas corpus matters have taken up to 14 years in one
Montana case. It appears that the legitimate interest of the
public in reaching final resolution in these cases is not
given equal and appropriate consideration when balancing the
rights of petitioners. The resulting delays invite the kinds
of ``recreational'' use of the court system by inmates that
we have seen in recent years.
Opponents of splitting the Ninth Circuit argue that the
larger the circuit the more consistency in federal law and
mention that judges and attorneys have testified to a sense
of community which they enjoy with the existing appellate
courts. As I noted in the beginning of my letter, the size of
the Ninth Circuit bench has led to decision-making by panel,
the differing combinations of which leads inescapably to a
lack of consistency in precedential authority. And to argue
that judges and attorneys are comfortable with the status quo
is a position that, with all due respect, I would imagine
falls deaf on the ears of those who have been awaiting a
decision from the Court for many months or years.
I do not take the position that Montanans can only find
justice before a bench made up of Montana judges or judges
from neighboring states. And I am not moved to my position by
the political arguments of interest groups whose position on
S. 956 is based upon
[[Page S8049]]
whether they wish their particular body of substantive law to
change or remain the same. However, I do not believe that the
original intent of the appellate court system, which was to
establish circuits which reflected a regional identity by
designating a manageable set of contiguous states that shared
a common background, is consistent with a circuit that serves
twenty million more people than most of the other circuits
and covers fourteen million square miles.
Suggestions to divide the Ninth Circuit Court of Appeals
have apparently been proposed since before World War II. The
Hruska Commission (Commission on Revision of the Federal
Court Appellate System) in 1973 recommended dividing the
Fifth and the Ninth Circuits (the Fifth was subsequently
divided, but not the Ninth). Opponents of dividing circuits
recommend a variety of alternatives: consolidation of all
circuits into one large national court, dividing California
into two different circuits, and finally the familiar
solution of studying the problem further. I hope Congress
does not delay further correcting a situation that penalizes
those states in the Ninth Circuit for the incredible
population growth that has occurred in California and is
occurring in Nevada.
I strongly support the proposed amendment, because I think
it will solve some of the problems mentioned above and end
many of the frustrations we feel with the Ninth Circuit Court
of Appeals. If I can be of further assistance in your effort
to pass this proposal, please let me know.
Sincerely,
Marc Racicot,
Governor.
Mr. BURNS. Mr. President, I would like to read one part of the
Governor's letter. He states ``the Ninth Circuit is simply too large to
effectively respond to the needs of those it serves.'' State
legislatures of the Northwest consistently and overwhelmingly call on
Congress to split the ninth circuit.
On the other hand, the bill is opposed by judges and lawyers in the
ninth circuit who would lose control over their fiefdoms. It is also
opposed by special-interest groups that apparently care little about
the troubles that are caused by the ninth circuit.
Mr. President, as you may know, since I came to the Senate in 1989, I
have sponsored numerous bills and amendments that would achieve a split
of the ninth circuit and I commend the Commerce, State Justice,
Subcommittee on their willingness to again take up the fight in the
105th Congress. It's an old axiom that justice delayed is justice
denied. For too long the people of the ninth circuit have been caught
in the cogs of the wheels of justice. I want to put a stop to this
inequity by dividing this court before its growth overwhelms us all.
Mr. President, in looking at what has been said by some, that it has
not been heard, that it has not been studied, let's just take a look
and see what has been done since.
In 1974, the Senate Judiciary Committee held hearings on S. 729 to
realign the fifth and ninth. It was reported out of committee. Nothing
happened.
On March 7, 1984, the Judiciary Subcommittee on Courts held hearings
on S. 1156, the Ninth Court of Appeals Reorganization Act of 1983. No
action was taken.
On March 6, 1990, the Senate Judiciary Subcommittee on Courts and
Administrative Practices held hearings on S. 948, the Ninth Circuit
Court of Appeals Reorganization Act of 1989. And there was no action
taken.
In 1990, the Intellectual Property and Administration of Justice
Committee held hearings on H.R. 4900, the Ninth Circuit Court of
Appeals Reorganization Act of 1990. Still no action was taken.
H.R. 3654 died in committee without hearings.
In 1995, the full Senate Judiciary Committee held hearings on S. 956,
the Court of Appeals Reorganization Act of 1995. An amended version
passed the Senate by voice vote, but it died in the House Judiciary
Committee.
So it is not that this has not been looked at and studied. It has
always gotten bogged down.
Basically that is what we are talking about here. We continue to talk
about the bar association doesn't want it, the judges of the ninth
don't want it. When do we start listening to the people who have to use
it?
Mr. President, I yield the floor.
I reserve the remainder of my time.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER [Mr. Bennett]. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I yield 10 minutes of my time to the
distinguished Senator from Nevada [Mr. Reid].
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, if a litigant in the ninth circuit, which
covers the areas that have already been spoken of, has a case heard
before a Federal district judge or a bankruptcy court and they are
displeased with how the case turns out, they have a right to appeal
that case. Under the framework of the courts that we have now in this
country, that is appealed to the Ninth Circuit Court of Appeals in San
Francisco.
That is what we are talking about here today--what happens when a
case is appealed from a lower Federal court to the ninth circuit, which
is an intermediary step before it goes to the U.S. Supreme Court. That
is what we are talking about. It is extremely important if you are
involved in the judicial process. There isn't a court that is more
important than a circuit court, a Federal circuit court of appeals.
We are very fortunate in the ninth circuit to have the chief judge of
the ninth circuit, not only one of the distinguished jurists of this
country but also a graduate of Stanford Law School with a great
academic record, but, most important for this Senator, is a Nevadan,
born in Nevada, went to school in Nevada until he got into law school.
We didn't have a law school.
I have spent a lot of time with Judge Hug learning about the ninth
circuit. I would ask the Members of this body to reflect upon what the
ranking member of the Judiciary Committee said. The ninth circuit is
doing an excellent job. They are reducing caseload. In fact, even with
nine vacancies, which the distinguished ranking member, the senior
Senator from Vermont, established, the ninth circuit caseload is
decreasing--not increasing, decreasing. They have increased their
termination of cases by almost 1,000 from March 1996 to March 1997.
They are doing a good job even though they are handicapped because the
Senate won't confirm the vacancies that they now have.
I, first of all, want to thank the distinguished Senator on the
subcommittee, Senator Gregg, for taking into account my concerns about
the split. I very much want this study to go forward, the amendment
that is now before this body. But if it doesn't go forward, it is
important that the State of Nevada recognize people--recognize, as the
chairman of the subcommittee recognized, that the State of Nevada is
now the most urban State in America. Ninety percent of the people live
in the metropolitan areas of Reno and Las Vegas. We have tremendously
difficult judicial problems. Frankly, the way the State has changed
populationwise is we have a great deal in common with the more
populated areas of America.
We feel that it would be unfair to have the split any other way than
it now is. There may be other and better ways to split this court. That
is why this study is so important. That is why the U.S. Senate last
year passed a study saying let's take a look at all the circuit courts
before a decision is made as to how you are going to split the ninth
circuit. We all have a feeling that the ninth circuit is large. It is
larger than most all of the other circuits. But the fact of the matter
is, how can we determine how it should be split under the terms that it
is now being done; that is, before the Appropriations Committee? It is
being done for reasons that are not legal in nature. They are political
in nature.
Judge Hug said, ``By adding a circuit-split provision as a rider to
an appropriations bill, it would completely bypass the Judiciary
Committee and would seek to impose a new judicial structure on nine
Western States and the Pacific territories without appropriate
hearings, public comment, or independent research subsequent of such
action.''
Let's, in effect, have the experts take a look at what we should do.
The House passed a compromise very comparable to what we did last year.
The House passed a bill that says let's have the Chief Justice, the
President of the United States, and the minority and majority leaders
of the House and Senate pick people to serve on this 10-member
commission and to report back to us in 18 months as to what should be
done.
I think it would even be better, while all of this is going on, to
fill the nine vacancies in the ninth circuit. People
[[Page S8050]]
are really concerned about the administration of justice. Let's have
the majority move those people through this body as quickly as
possible.
The fifth circuit, the most recently split circuit, has only 1,000
fewer cases than the ninth circuit, and the eleventh circuit, the other
half of the most recently split circuit, is the slowest circuit for
filing the disposition. It is not the ninth circuit, even though we are
hamstrung and are short a significant number of judges. If you look at
the eleventh circuit, which has 1,000 fewer cases than the ninth
circuit, it takes them longer to dispose of a case than the ninth
circuit.
So the ninth circuit should be commended for the good work they are
doing with the limited resources they have.
Mr. President, there are some who say, ``Well, it is important that
we do this because California takes up so much of the ninth circuit.''
Another misstatement of fact: California doesn't do as much work in
the ninth circuit as, for example, the second circuit. The second
circuit, New York, has 86 percent of the filings; the ninth circuit,
only has 55 percent. The fifth circuit takes up 72 percent of the
filings; and the eleventh circuit, Florida, takes up 55 percent of the
cases.
So, Mr. President, California is not the glutton that people have
alleged it to be. They don't take up as many of the case filings as
other circuits.
I would compare the qualifications of the ninth circuit judges--those
appointed by Republican Presidents and those appointed by Democratic
Presidents--with any other circuit. From the finest law schools in
America are the judges who serve on the ninth circuit. Five of the
senior judges in the ninth circuit were appointed by Republican
Presidents; four by Democratic Presidents.
There has been a lot of talk in this body about the Hruska
Commission. The Hruska Commission said, in 1974, you should split the
circuits. But let's listen to what the experts said about that. I have
a letter here dated July 17, 1997, from Arthur Helman, Professor of Law
at the University of Pittsburgh. I will read parts of this letter. This
is written to the president of the California State Bar Association.
Again, as the Deputy Executive Director of the Hruska
Commission, and as a scholar who has studied the ninth
circuit extensively during the intervening period, I am in as
good a position as anyone to shed light on this matter. My
conclusion is unequivocal. Such speculation is baseless.
Mr. President, this isn't some lawyer from California or some
professor from California or anyone in the ninth circuit. This is the
professor in the School of Law at the University of Pittsburgh.
My conclusion is unequivocal. Such speculation is baseless.
The circumstances that led to the Hruska Commission are no
longer present, and there is absolutely no reason to think
that a new commission would endorse such a proposal. Let me
be more specific. The Hruska Commission recommendation was
driven primarily by a single factor. The commission believes
that ``no circuit should be created which would immediately
require more than nine active judges.'' That was a realistic
possibility 25 years ago. Today it is not. In fact, of
existing circuits, all but one have more than nine active
judges. With the nine-judge circuit a relic of the past, a
new commission would have no reason to recommend a division
of California. A second consideration is also relevant. The
Hruska Commission held hearings in the ninth circuit, and,
although there was no consensus, several prominent California
judges expressed support for the idea of dividing California
between Federal judicial circuits.
I know that sounds implausible, but that only underscores
how much things have changed since the Hruska Commission
carried out its work 25 years ago. Plainly, no such support
would be forthcoming today without a record such as the one
of the Hruska Commission and with overwhelming opposition
from the California bar, no commission would recommend a
division of California. For all these reasons the speculation
you referred to is totally without foundation. Whatever
recommendations the new commission might make, I am confident
that dividing California into circuits will not be among
them.
Mr. President, in short, we should do the right thing. The right
thing calls for having experts report back to us in a reasonable period
of time. If they want to do it in a year, even though it would put a
tremendous amount of work on them, I would accept that so that next
year at this time we could take appropriate action. But to go forward
the way we have done in the Appropriations Committee is bad. It is bad
legislation and makes this body look bad, and it is bad legislation
because it makes our judicial system look real bad. It has never ever
happened before that we have divided a circuit court the way we are
about to do it now. The lives of people depend on what we do today.
Cases that are appealed to the U.S. Supreme Court come from these
circuits. I suggest we follow the recommendation of the amendment that
is now before this body.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. I yield 15 minutes to the Senator from Idaho.
The PRESIDING OFFICER. The Senator from Idaho.
Mr. CRAIG. Mr. President, I thank the chairman for yielding in
opposition to the Feinstein amendment and hope that the Senate would
concur with the findings of the committee. Commerce, State, Justice
appropriations has dealt in what I believe is an appropriate way with
the issue of the ninth circuit court. There should be no surprises.
This is simply not a new issue. I have always felt, and I think many
concur, that if you want to not resolve an issue, you create a
commission and study something once again, and we know that this has
been studied and recommendations have been made.
In 1973, the Hruska Commission suggested that the ninth and the fifth
circuits be split, and the fifth circuit was split, the ninth was not.
There was simply too much political controversy around it. My guess is
today it is a lot more about politics than it is about justice, justice
to the citizens of our country who deserve a timely process in the
courts, and certainly with the ninth circuit court being as large as it
is, as other Senators have spoken to this afternoon, justice
appropriately and timely rendered is the question.
It has been mentioned--I believe the Senator from Montana mentioned
that the ninth circuit averages 429 days and that the medium national
time average is 315 days. When you are in the midst of a lawsuit, do
you set it aside? Do you quit spending money? Do you stop the retainer
of the attorneys representing you? I doubt it. And that clock ticks on
and the money accumulates, and the cost is high and justice goes
unrendered.
Then the question in this very extended court is to whether the
justice is appropriate. The Senator from Utah referenced the number of
times the Supreme Court this year has overruled the ninth circuit.
Those are all part of the issues that brought the citizens of Idaho to
me and to my colleague, Senator Kempthorne, to suggest that it was time
we dealt with this issue, that it had been since 1973 that the issue
was found to be one of division, one of the appropriate allocation of
States, money, and judges, and that simply has not occurred.
I hope that we would deal with this.
The bill before us today would put California, Nevada, Guam, and the
Northern Marianas in the ninth circuit. It would also create a new
twelfth circuit including Alaska, Idaho, Montana, Hawaii, Oregon, and
Washington. I am currently a cosponsor of Senator Murkoswki's bill, S.
431, which splits the ninth circuit a little differently. However, I
find the division in the Gregg-Stevens amendment to be very well though
out and fair. I think either split of the ninth circuit would work much
better than the current organization of the ninth circuit.
The subject of dividing the ninth circuit split has been discussed
now for many years. In fact, as long as 1973, the Hruska Commission
suggested the ninth and fifth circuits should be split. Although the
fifth circuit was divided, the ninth was not. Ever since then, the
debate about splitting the ninth circuit has roared on.
Frankly, Mr. President, I am perplexed why there is any question
about this proposal. The ninth circuit is by the largest circuit in the
United States. It currently employs 28 judges--11 more than any other
circuit. The U.S. Judicial Conference has called any circuit with more
than 15 judges unworkable. I guess that means, in the opinion of the
Judicial Conference, we have an unworkable situation.
The ninth circuit currently serves 45 million people. This is 60
percent more than the next largest district. The Census Bureau has
estimated that by 2010, the population in the ninth circuit will top 63
million people, an increase of 40
[[Page S8051]]
percent. The situation has worsened since the Hruska Commission
suggested a split of the ninth circuit--a trend certain to continue
with further delay.
Over the years of debate on this issue, there has been much
discussion of inconsistency and unmanageable caseloads. I would like to
change the focus of the argument for just a moment and instead look at
the impact on the people of the ninth circuit, which includes the
people of Idaho. The size of the ninth circuit also has quite an effect
on these individuals.
The ninth circuit averages 429 days from filing to concluding an
appeal. This is much longer than the national median time of 315 days.
This affects the individuals who resort to the judicial system to
resolve a dispute in their lives. It's been said that people in this
country want and expect swift, efficient justice and I think they
deserve it.
It is not fair for the people in the ninth circuit to be subjected to
this inefficiency. People want their disputes to be solved quickly so
they can go on with their lives. A lawsuit has the ability to consume
everything else in one's life. In the ninth circuit, it consumes their
lives for a longer period of time. Also, during this extended process,
these individuals are forced to continue paying legal fees. Mr.
President, I ask you if 100 extra days in litigation sounds like swift
justice.
The huge backlog that develops can lead to different sorts of
problems in the Northwest. The economic stability of the Northwest is
threatened when suits involving, for example, the timber industry are
forced into the backlog of inefficiency.
It is unquestioned that the ninth circuit covers a huge area.
However, when that is combined with the 7,000 new filings the circuit
had last year, it becomes almost impossible to keep abreast of legal
developments in the circuit. The result is everchanging judicial
patterns that inevitably make conflicting rulings. This leads to
judicial inconsistency, which is not good for the system, or the people
who seek relief through the system. This might help to explain the fact
that the ninth circuit has an 82 percent rate of reversal by the
Supreme Court of the United States. Mr. President, I ask you if this
sounds like efficient justice.
Opponents of this legislation argue that the extreme size and
population of the ninth circuit is not enough of a reason to support a
split. However, that was the exact reason for the split of the former
eighth circuit, which created the tenth circuit. It was also the exact
reason for dividing the fifth circuit and creating the eleventh
circuit. In fact, as I said before, when the fifth circuit was split,
it was suggested that the ninth circuit be split as well.
Opponents also argue for the need of a new commission to determine
the need for a split of the ninth circuit. Twenty-five years ago the
suggestion of just such a commission was to split the ninth circuit. It
has grown since then, and is continuing to grow. The proposed split has
been discussed for many years now, including Senate Judiciary hearings.
There is more than enough data currently in the record to make an
informed decision, and that decision should be to split the ninth
circuit.
Mr. President, this situation has been a long time in coming. It is
now time for us to act. The split of the fifth circuit worked 25 years
ago, so there is no reason we should not expect similar success with
the ninth circuit. It is time that we recognize the competing interests
of the differing regions in the ninth circuit and split them up. I ask
that my colleagues support the split of the ninth circuit in the
interest of returning swift, efficient justice to the people of the
ninth circuit.
The PRESIDING OFFICER. Who yields time?
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. I yield 5 minutes to the distinguished Senator from
California, my colleague, Senator Boxer.
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. I thank the Chair. I thank my colleague. I stand in favor
of the pending Feinstein amendment calling for a study to decide
whether the people would be better served by splitting the ninth
circuit and, if so, how to split the ninth circuit.
Mr. President, I am very fortunate at this time to be sitting on the
Appropriations Committee, and I knew when I took a seat on that
committee it was very powerful. Mr. President, I know you sit on that
committee as well, and we are proud to be there. But, in my opinion, I
never believed the Appropriations Committee would take it upon itself
to determine how to split the ninth circuit. It seems to me if we are
going to undertake this, it ought to be a study. The study ought to go
to the Judiciary Committee, of which my distinguished colleague,
Senator Feinstein, is a member. That is the proper way to serve the
people we represent.
Congress has redrawn circuit boundaries only twice since creating the
modern appellate system in 1891. So only twice has Congress stepped in.
Congress has never divided a circuit without the support of the circuit
judges and the organized bar. The judges and lawyers of the ninth
circuit overwhelmingly oppose the split without first studying it. The
Federal Bar Association and the bar associations of California,
Arizona, Nevada, Montana, Idaho, and Hawaii have all passed resolutions
expressing their opposition to splitting the circuit. The Ninth Circuit
Judicial Council, the governing body for all the courts in the ninth
circuit, is unanimous in their opposition to splitting the circuit.
The last time splitting up the ninth circuit was studied was during
the Hruska Commission in 1973, and the principal authors of that
report, Judge Charles Wiggins of Nevada and former Deputy Executive
Director of the Hruska Commission, Professor Arthur Hellman, agree that
its recommendation to split the ninth circuit is outdated and they
oppose a split without first conducting a study. And that, of course,
is what the pending amendment is about, to have a study first.
Now, we hear many comments in this Chamber, and I heard them in
committee, about the delay at the ninth circuit. Any delay in total
case processing time is clearly due to unfilled vacancies. I have heard
this over and over. There are 28 judicial seats on the ninth circuit.
Of these 28, there are only 19 active judges. So clearly we have not
done our job here, and it seems to me justice delayed is justice
denied, and we better get busy.
We have some excellent nominees pending before the Senate and before
the Committee on the Judiciary. And I tell you, I have been quite
frustrated that we cannot seem to get these nominations up before the
body but yet we can seem to bring a split of the ninth circuit with all
its ramifications here in lickety-split time without much study. I find
it very, very ironic when we have the most qualified candidates who
have been selected by Republicans and Democrats alike sitting and
waiting here in excess of a year and a half, 2 years.
We hear about the high reversal rate at the ninth circuit, and
clearly there is a high reversal, if you look at it this way --28 of 29
cases. However, the Supreme Court elects to hear only a tiny fraction
of the more than 4,000 final dispositions issued annually by the
circuit. So thousands of cases stand and then 28 of 29 that they chose
to hear they reversed.
But, Mr. President, it is interesting. Four other circuits have
higher reversal rates than the ninth circuit. The first, second,
seventh, and D.C. circuits are all reversed 100 percent of the time.
We also hear that California judicial philosophy dominates the ninth
circuit. Ten of the circuits' nineteen active judges actually sit
outside California: Arizona, Nevada, and Idaho each have two judges;
Montana, Washington, Oregon, and Alaska each have one. And the circuit
judges are evenly split between Republicans and Democrats. Of the
court's 19 active judges, Mr. President, 10 were nominated by
Republican Presidents and 9 by Democratic Presidents. So many of the
arguments that we hear today seem to me to be rather specious.
Then we hear the argument that this is very cost efficient, but no
one talks about costs of the splitting up of the ninth circuit, and
those would be substantial. Creation of a new twelfth circuit would
require duplicate offices of clerk of court, circuit executive, staff
attorneys, settlement attorneys, libraries, courtrooms, and mail and
computer facilities, at an annual cost of $1.3 million.
[[Page S8052]]
Now, it may be that this money would be well spent. I certainly am
very, very open to splitting this court. That is not a problem for me.
The problem for me is how we go about it. Before we invest this money
every year plus the $3 million startup costs, and an additional $2
million for leasing space, it seems to me we ought to have a study.
So I strongly support the Feinstein amendment. I am proud to be a
cosponsor of it. I hope that wisdom will prevail.
I thank the Chair for its patience. I thank my colleague.
The PRESIDING OFFICER. Who yields time?
Mr. GREGG. Mr. President, I yield 5 minutes to the Senator from
Oregon.
Mr. SMITH of Oregon. Mr. President, I have a prepared statement, but
I am going to divert from it and frankly just speak from my heart, from
my experience. My experience is not long in this Chamber. But my
experience among the people of Oregon is very recent. And my experience
there with people causes me to rise in opposition to the amendment of
the Senator from California. I am reluctant to do that for a personal
reason. I am one of Senator Feinstein's great admirers. She may not
know that, but I think she is a terrific human being. But I have an
obligation to speak as best I can for the people who elected me.
I believe this may be an imperfect process. Maybe it should not be a
rider to a bill. But I am very aware that for 25 years this issue has
been debated in this Chamber, and we have had study after study after
study, and what we are beginning to develop is a feeling among the
electorate that when going for justice in the ninth circuit, that
justice will be denied. So I think there is a lot of frustration on the
part of many of us here that we have to do whatever we can and stop
studying and stop delaying and start doing. So I feel very strongly
about this.
I have heard many arguments today that have merit on a procedural
basis. Yes, maybe many of the legal profession oppose this. But many
people support this.
We have heard charges of gerrymandering. I have a map of the United
States and the circuit courts of this country. They are saying we are
gerrymandering on the west coast of the United States, but I notice
that nearly every State on the east coast of the United States is in a
different circuit. There are five circuits that cover the Eastern
United States, and those circuits have the lowest reversal rates, taken
together, of any region in the country. I think we need to change it.
So I rise to support what Senator Gregg is doing. I thank him for
that. I thank him for his leadership. He doesn't have a dog in the
fight of the ninth circuit, but a lot of us do. So I thank him for
that.
I join my colleagues in opposition to this amendment to strike the
provision in this bill to divide the Ninth Circuit of the U.S. Court of
Appeals. This may not be the most perfect solution to a difficult
problem, but I believe that it provides a platform from which to
relieve the caseload and reversal rate of the Ninth Circuit Court of
Appeals. Serving more than 45 million people and spanning 1.4 million
square miles, the Ninth Circuit Court of Appeals handles more than
8,500 filings a year--with a reversal rate of 96 percent. By the year
2010, the ninth circuit population will increase in size by 43 percent.
While my colleague from California may argue that this is an issue
for further study, I would like to remind my colleagues that the Senate
has studied this issue for almost a quarter century and has reported
legislation to split the ninth circuit on three separate occasions.
Clearly, the time has come to act.
I want to conclude by reading the comments of some judges who support
what is happening here, because some have been read to the reverse.
Mr. President, we are not simply legislating without just cause. The
judges that serve in the ninth circuit have given us cause to act
without further delay. Judge Diarmuid O'Scannlain from my state of
Oregon has stated:
We (the ninth circuit) cannot grow without limit. As the
number of opinions increases, we judges risk losing the
ability to know what our circuit's law is. In short, bigger
is not necessarily better. The ninth circuit will ultimately
need to be split.
I replaced a great senator, Senator Mark O. Hatfield who served in
this Chamber for 30 years. He said:
The ninth circuit's size has created serious problems: too
many judges spending more time and money traveling than
hearing cases, a growing backlog of cases which threaten to
bury each judge, a dangerous inability to keep up with
current case law, a breakdown in judicial collegiality and,
most importantly, a failure to provide uniformity, stability
and predictability in the development of federal law
throughout the Western region. It is increasingly clear that
these problems cannot be solved by the reforms already
implemented by the Court. These arguments adequately state
the case for the division of the circuit. We delay at our
peril.
Mr. President, justice delayed is justice denied. I ask my colleagues
to join me in opposing this amendment.
I yield the remainder of my time.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Mr. President, how much time is left on both sides?
The PRESIDING OFFICER. The Senator from New Hampshire controls 46
minutes. The Senator from California controls 27 minutes.
Mr. GREGG. Does the Senator from California mind if we take another
speaker?
Mrs. FEINSTEIN. Not at all.
Mr. GREGG. I yield to the Senator from Idaho for 10 minutes.
Mr. KEMPTHORNE. Mr. President, may I commend the Senator from New
Hampshire for his efforts on this issue. I applaud him on that. It is
long overdue. Therefore, I must rise in opposition to the Senator from
California, for whom I have the utmost respect. She and I happen to
have served as mayors in this country at the same time. I prefer it
when we are on the same side of an issue. I look forward to that day
again.
The time to alleviate the problems being faced by the ninth circuit
has long been passed. It is time for us to deal with this. The proposal
to realign the ninth circuit was first considered by the Senate nearly
25 years ago. For 25 years we have known that we should be at this
point, that we should have made the decision long ago. Yet, the option
presented by this amendment would only serve to further delay this long
overdue realignment. And further delay serves only to deny access to
justice to the people who fall under the jurisdiction of the ninth
circuit.
The immense size of the ninth circuit is one of the problems. The
next closest circuit in size is the sixth. The sixth circuit has a
population of just under 30 million people. The ninth circuit has
nearly 50 million people--70 percent more people than does the sixth.
And the problem will only get worse because, over the next 12 years,
the States which make up the current ninth circuit are expected to grow
by 43 percent.
So here we have a problem that is 25 years in the making and getting
worse, and now we can see the projections that it is just simply going
to be driven to the point that access to justice is absolutely
impossible. As a result of the tremendous caseloads, adjudication by
the ninth circuit is unnecessarily and unfortunately slow. Recent
figures indicate the time to complete an appeal in the ninth circuit is
40 percent longer than the national median.
The people of the ninth circuit are simply not served by the unneeded
delay experienced within the circuit. The question before us,
therefore, is not a question of politics. It is a question of fairness.
The judges in the ninth circuit simply cannot keep up with the number
of cases which are being decided. It is nearly impossible logistically
for judges within the circuit to know the law as it is being decided
within the circuit, and therefore you see inconsistencies, you see
problems with not staying up with decisions that have been made
elsewhere within the jurisdiction, and therefore we see the cases being
overturned.
So, should the people of the ninth circuit have to continue to face
the unnecessary delays and judicial uncertainty which is becoming
commonplace within the circuit? Should the judges of the ninth circuit
continue to be burdened with a system which prevents the kind of
collegiality which is necessary for effective decisionmaking? Any
objective analysis of these questions reveals that the answer must be
no. And, if the answer is no, then we must act now to split the ninth
circuit
[[Page S8053]]
and provide the people within this jurisdiction the access to justice
which all Americans expect and are entitled to. Speaking for the people
I represent, I say that it is fundamentally unfair to deny the people
of Idaho justice. Yet, the amendment of the Senator from California
would continue the kind of injustice that was exposed nearly a quarter
of a century ago.
In reviewing a proposal of this magnitude, I believe it is important
to speak with those who are most familiar with the situation. With this
in mind, I asked Idaho's attorney general, Al Lance, to share his views
with me. I believe his words are worth repeating at this time. He said:
My concerns regarding the ninth circuit include its
unwieldy size, inconsistency in decisions issued by its
various panels, excessive delay in the issuance of those
decisions, as well as the circuit's very high reversal rate
when its decisions are reviewed by the U.S. Supreme Court.
Furthermore, it is my firm belief that in view of the
unwieldy nature of the circuit as it is presently configured,
that the true significance of regional and local issues is
neither fully appreciated by the court nor reflected in the
court's decisions. Establishing a new Twelfth Circuit Court
of Appeals will resolve these concerns and, at the same time,
reduce the average case processing time by over 400 days to a
time period consistent with most other circuits.
In closing, I would like to quote another friend of mine who is the
Governor of the State of Idaho, Phil Batt. With regard to the ninth
circuit, he stated:
The court has been overloaded for a long time, and it is in
the interest of everyone, especially justice, to split it.
That is what this debate is truly about: justice. I urge my
colleagues to vote for justice and to vote against the amendment which
is before us. Americans are entitled to justice and they are entitled
to access to the justice system, and it is being denied currently in
the ninth circuit. The remedy, as proposed by the Senator from New
Hampshire, is before us. It is a quarter of a century overdue. It is
time for us to take the right action and provide that access to justice
for all Americans.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I yield 10 minutes to the
distinguished Senator from Nevada, [Mr. Bryan].
The PRESIDING OFFICER. The Senator from Nevada.
Mr. BRYAN. I thank the senior Senator from California.
Mr. President, I rise to support the amendment offered by the senior
Senator from California. In my view, and I speak as one who has
appeared before the ninth circuit as an attorney, the provision
included in this appropriation bill to divide the ninth circuit and
create a new 12th circuit is inappropriate, ill-conceived and ill-
advised. I must express my dismay that my colleagues on the
Appropriations Committee have seen fit to usurp the jurisdiction of the
Judiciary Committee on this matter. If there was ever an issue that
deserved to be considered in a thoughtful and careful manner by the
Judiciary Committee, it is the issue of reforming our Federal court
system.
The Commerce, Justice, State appropriation bill is clearly not an
appropriate venue to debate an issue of this magnitude, one that will
have far-reaching policy implications, not only for those of us in the
West but for the entire Nation.
The Ninth Circuit Court of Appeals Reorganization Act of 1997 would
reformulate the ninth circuit to include California, Nevada and the
Pacific territories, and create a new twelfth circuit consisting of
Alaska, Arizona, Hawaii, Idaho, Montana, Oregon and Washington.
In the 104th Congress, the distinguished senior Senator from
Washington introduced legislation that would have placed California,
Nevada, Arizona, Hawaii and the Pacific territories in the ninth
circuit. That legislation was later modified by the Judiciary Committee
to establish a new ninth circuit consisting of California, Hawaii and
the Pacific territories, and I have been further advised that at one
time a proposal was floating around that would divide northern and
southern California into separate circuits.
I mention these various iterations of dividing the ninth circuit to
make the point that there is a variety of views as to how best to
address the ninth circuit and whether or not it should be divided, and,
if so, how it should be divided. But in my view, it is clear the
proposal to divide the ninth circuit is more reflective of an act of
political expediency than the prudential concerns related to the
administration of justice. The sponsors of this provision claim that
the ninth circuit is unable to effectively manage its caseload because
it has grown too big and that the solution to this perceived problem is
to divide the circuit. But this, I fear, is only a smokescreen, for the
real reason splitting the ninth circuit being proposed at this time is
simply that many do not like the decisions rendered by the circuit.
While they will not admit that one purpose of dividing the ninth
circuit is to change the substantive outcomes of decisions, the
sponsors have made clear their displeasure with many decisions issued
by the court, particularly in the area of natural resource protection.
Surely not all of the decisions in the ninth circuit, or for that
matter any circuit, come down the way that all of us would like. I,
myself, have cosponsored legislation that would reverse the effect of
some of the ninth circuit decisions. But I do not believe that
differences over the decisions rendered by the ninth circuit are an
adequate basis to split the circuit.
What kind of precedent would the Congress then be setting? Would a
circuit court of appeals face possible reconfiguration whenever
Congress does not like the decisions being rendered? Does this Congress
really want to support what is essentially judicial gerrymandering? I
hope not. The ninth circuit serves nine Western States and has been one
circuit for more than 100 years. Whenever the issue of splitting the
circuit is put to a vote of the judges and lawyers in the circuit, the
vote has been overwhelmingly to retain the circuit as it is currently
constituted.
Who better than those judges who comprise the circuit and those
lawyers who represent litigants before the ninth circuit to determine
whether or not the ninth circuit is working effectively or not?
It has been my experience that neither judges nor lawyers have been
shy about stating an opinion when they think something needs to be
changed.
The last study of the Federal Circuit Court of Appeals was by the
1973 Hruska Commission. A fellow Nevadan, the Honorable Charles
Wiggins, a ninth circuit court judge, served as a member of that
commission. Parenthetically, Judge Wiggins first served as a Republican
Member of the House before serving on the ninth circuit. In a letter to
California's senior Senator, he stated:
My understanding of the role of the circuit courts in our
system of Federal justice has changed over the years from
that which I held when the Hruska Commission issued its final
report in 1973. At that time, I endorsed the recommendations
of the Commission calling for a division of the fifth and
ninth circuits. I have grown wiser in the succeeding 22
years.
We should heed Judge Wiggins' experience--act wisely and not
precipitously in dividing this circuit.
The last time a circuit court of appeals split was in 1980 when the
fifth circuit was divided and the eleventh created. It should be noted
that the judges of the fifth circuit unanimously requested the split, a
situation we clearly do not have with the ninth circuit.
In a recent letter, Judge Wiggins wrote me:
Circuit division is not the answer. It has not proved
effective in reducing delays. The former fifth circuit ranked
sixth in case processing times just prior to its division
into the fifth and eleventh circuits. Since the division, the
new fifth circuit is still ranked fifth or seventh, while the
new eleventh circuit now ranks 12th, the slowest of all
circuits. The Ninth Circuit Court of Appeals judges are the
fastest in the Nation in disposing of cases once the panel
has received the case.
So the ninth circuit would appear to take the appropriate
administrative steps to manage its caseloads through innovative ways
that other circuits use as models.
The ninth circuit disposes of cases in 1.9 months from oral argument
to rendering a decision. That is less than the national average by 2
weeks. This currently makes the ninth circuit the second most efficient
circuit in the country.
So it is obvious the circuit has recognized caseload management is an
area
[[Page S8054]]
that needs improving and is successfully addressing it.
I find it particularly ironic that in this political environment in
which budget decisions are hotly debated and new expenditures are
closely watched that a new circuit would be proposed, because it is
estimated that a courthouse alone would cost some $60 million and there
would be additional costs that would be involved in the transition
period. So, therefore, we would face the continuing cost of operating
an additional circuit court when, at this point, no determination has
been made in a fair and objective way that dividing the circuit is
necessary.
In my view, the ninth circuit has worked well for the nine Western
States it serves and will continue to do so into the future. For those
who believe the ninth circuit must be split, I urge the support of the
Feinstein amendment to establish a commission to review the structure
and the alignment of the Federal courts of appeals. This is a
thoughtful and prudent way to address this issue.
When the information necessary to determine whether any circuits need
their geographical jurisdiction changed is available, we can then
debate this issue more intelligently, having been thoroughly informed
as to the facts. But let us not split the ninth circuit at this time.
Mr. President, I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. GREGG. Mr. President, I yield the Senator from Alaska 10 minutes.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. MURKOWSKI. I thank the Chair.
Mr. President, I rise to oppose the amendment offered by my good
friend, the Senator from California, the amendment which would strike
the provisions of the bill to divide the ninth circuit into two
separate circuits of more manageable size and certainly more manageable
responsibility.
The division of the ninth circuit is warranted for three very
important reasons: its size and population; its caseload; and its
astounding reversal rate by the U.S. Supreme Court. Who holds the ninth
circuit court accountable? It is the U.S. Supreme Court.
Let's talk about size and population. I have a chart here which shows
the magnitude of the area covered by the ninth circuit. The ninth
circuit is, by far, the largest of the 13 judicial circuits,
encompassing nine States and stretching from the Arctic Circle in my
State to the border of Mexico and across the international date line.
That is how big it is.
We are not against California or Nevada. What we want is a
recognition of timely judicial action.
Population: The second chart I have shows the number of people served
by the ninth circuit. Over 49 million people are served by the ninth
circuit, almost 60 percent more than are served by the next largest
circuit. By the year 2010, not very far away, the Census Bureau
estimates that the ninth circuit's population will be more than 63
million, a 43-percent increase in just 13 years. Talk about not doing
anything rash. This population is increasing out of control. We better
start doing something now.
On the issue of accountability, Mr. President, and that is most
important, the only factor more disturbing than the geographic
magnitude of the circuit is the magnitude of its ever-expanding docket.
The ninth circuit has more cases than any other circuit. Last year
alone, the ninth circuit had an astounding 8,502 new filings. It is
because of its caseload that the entire appellate process in the ninth
circuit is the second slowest in the Nation. How do they explain that?
As a former chief judge, Judge Wallace of the ninth circuit, stated:
It takes about 4 months longer to complete an appeal in our
court as compared to the national median time.
Former Chief Justice Warren E. Burger put it more succinctly when he
called the ninth circuit an ``unmanageable administrative
monstrosity.''
Let's look at this reversal rate which I want to talk to you about,
because there is the issue of accountability. Our responsibility of
judicial oversight demands action now. Unfortunately, this massive size
often results in the decrease in the ability of the judges to keep
abreast of legal developments within this jurisdiction. The large
number of judges scattered over a large area inevitably results in
difficulty in reaching consistent circuit decisions. This judicial
inconsistency has led to continual increases in the reversal rate of
the ninth circuit decisions by the U.S. Supreme Court.
During the last Supreme Court session, the Court reversed 19 of the
20 cases that it heard from the ninth circuit. That is an astounding 95
percent reversal rate. How do they explain that? They don't. It is
embarrassing, I would think, for the judges. The Supreme Court holds
the circuit accountable to the tune of a 95 percent reversal rate. It's
about accountability, Mr. President.
Here is the relative ninth circuit reversal rate: 95 percent in 1996;
83 percent in 1995; 82 percent in 1994; 73 percent in 1993; 63 percent
in 1992.
Why does this reversal rate continue to increase? Because the circuit
is simply too big. Intracircuit conflicts are the result. Ninth circuit
Judge Diramuid O'Scannlain, a sitting judge on the ninth circuit,
described the problem as follows:
An appellate court must function as a unified body, and it
must speak with a unified voice. It must maintain and shape a
coherent body of law. A circuit judge must feel as though he
or she speaks for the whole court and not merely an
individual. As more and more judges are added, it becomes
harder for the court to remain accountable to lawyers, other
judges, and the public at large.
Listen to that, ``the public at large.''
As the number of opinions increase, we judges risk losing
the ability to keep track of precedents and the ability to
know what our circuit's law is. In short, bigger is not
better.
Another sitting judge on the ninth circuit, Judge Andrew Kleinfeld,
agrees:
With so many judges on the ninth circuit and so many cases,
there is no way a judge can read all the other judges'
opinions. . . It's an impossibility.
Now there you have it, Mr. President. Two statements from two sitting
judges about what the problem is.
Some today argue that the Senate is acting in haste. This is entirely
untrue. The concept of dividing the ninth circuit is not new. Numerous
proposals to divide the ninth circuit were debated in Congress since
before World War II. More recent congressional history includes:
A 1973 congressional commission to study realignment with the circuit
court, chaired by Senator Hruska, which strongly called for division of
the ninth circuit.
Congressional hearings have been held in 1974, 1975, 1983, 1989, 1990
and 1995.
A split of the ninth circuit has been reported from a Senate
committee on three occasions, Mr. President.
How long do we have to wait? Dividing the ninth has been studied,
debated and analyzed to death. It is time for action.
I have one final chart. This is a statement from retired U.S. Supreme
Court Justice Warren Burger:
I strongly believe that the ninth circuit is far too
cumbersome and it should be divided.
U.S. Supreme Court Justice Anthony M. Kennedy who reviews, if you
will, the appeals, has this opinion:
I have increasing doubts and increasing reservations about
the wisdom of retaining the ninth in its historic size, and
with its historic jurisdiction.
Honorable Diarmuid O'Scannlain, ninth circuit:
We (the ninth circuit) cannot grow without limit. . . As
the number of opinions increases, we judges risk losing the
ability to know what our circuit's law is. . .
Judge Kleinfeld currently sitting on the court:
The ninth circuit is too large and has too many cases--
making it impossible to keep abreast of ninth circuit
decisions.
Our own former Member, a Senator from Alabama, former Alabama Supreme
Court Chief Justice Howell Heflin, who we have the greatest respect
for:
Congress recognized that a point is reached where the
addition of judges decreases the effectiveness of the court,
complicates the administration of uniform law, and
potentially diminishes the quality of justice within a
circuit.
That is our own former Senator.
Finally, recently retired Senator Mark Hatfield:
The increased likelihood of intracircuit conflicts is an
important justification for splitting the court.
[[Page S8055]]
There you have some of the most respected people we know relative to
this subject. The Commerce, State, Justice bill splits the circuit in a
rational way. The States of California and Nevada, due to their large
population, particularly of California, and the rapid population growth
of Nevada, will comprise the new ninth circuit. The balance of the
States of the circuit will form the new twelfth circuit. The 49 million
residents of the ninth circuit are the persons who suffer. Many wait
years before cases are heard and decided, prompting many to forgo the
entire appellate process.
In brief, the ninth circuit has become a circuit where justice is not
swift and justice is not always served. We have known of the problem of
the ninth circuit for a long time. It is time to solve the problem. It
is time for action now, and it is time for timely justice.
I urge my colleagues to reflect on this reality and the
responsibility that this Senate has to address it. Let's not forget
that reversal rate relative to the chart on my right. I am going to
leave that up as I yield the remainder of my time, because this is the
real story, Mr. President. Here is the accountability of the court, the
Supreme Court of the United States, and the number of cases that they
have reversed. It is absolutely embarrassing and, as a consequence,
action should be taken by this body now.
This is nothing against my good friends from California or the State
of California. This just happens to be the reality of the court that we
are forced to operate under. To suggest that somehow we don't like the
decisions is absolutely silly and unrealistic. These decisions are made
on legal merits, as they should be. They have nothing to do relative to
the location of the court. This court is simply overworked and is
unresponsive to the public, as indicated by the Supreme Court's
reversal rate.
Mr. President, I thank the floor manager. I yield the floor.
Mr. HOLLINGS. Mr. President, in the bill before us, we have in there
something called the Ninth Circuit Court of Appeals Reorganization Act
of 1997. It is hidden in the back of the bill within the general
provisions, but boy, does it have great import. This language asks us
to split the ninth circuit court into two circuits--the ninth circuit
would include California, Guam, Nevada, and the Northern Mariana
Islands while the twelfth circuit would include Alaska, Arizona,
Hawaii, Idaho, Montana, Oregon, and Washington. Needless to say, I am
certain my friends from these States will have something to say about
this matter.
While there will be Senators here to talk about the pros and cons of
splitting this ninth circuit court, I would like to say to my
colleagues that this is neither the time nor place to be talking about
this issue at all. As far as I can tell, this is a matter that belongs
in the most able hands of our Judiciary Committee. This is not a money
matter. This is true and true new authorization language that has no
place being on our appropriations bill.
In our full committee mark of the bill, Senators Reid and Boxer asked
the committee to create a commission to study the state of all the
circuits and make recommendations according to the big picture. The
rationale behind this is to let the experts who know and understand our
circuit courts tell us what they think before we do anything drastic.
Expanding Federal caseloads is a nationwide problem requiring a
nationwide solution. We can't sit here on our appropriations bill and
pretend to be experts as to what's best for the ninth circuit or all
the circuit courts, especially without ever having any hearings on the
topic, and especially not knowing how much our decision will cost us.
Believe me, splitting the ninth circuit court will without a doubt
incur upon us additional costs that we haven't even begun to predict.
So I urge my chairman and my colleagues to listen when I say that
this issue must go. We need to give this to the Judiciary Committee
where I have confidence they will make an informed and thorough
decision in a field that is theirs and theirs alone.
Mr. GREGG. Mr. President, can the Chair advise us of the present time
status?
The PRESIDING OFFICER. The Senator from New Hampshire controls 30
minutes; the Senator from California controls 19 minutes.
Mr. GREGG. Mr. President, I suggest to the Senator from California,
if it is agreeable, that we move to the Senator from Arizona for 5
minutes while we work on a possible unanimous consent agreement for a
vote.
Mrs. FEINSTEIN. That is acceptable.
Mr. GREGG. I yield 5 minutes to the Senator from Arizona.
Mr. KYL. Mr. President, I thank my colleague for yielding. This
proposal to divide the ninth circuit is especially important to my
State.
Mr. GREGG. May I ask the Senator from Arizona to suspend for a second
while I propound a unanimous consent request?
Mr. KYL. Sure.
Mr. GREGG. Mr. President, I ask unanimous consent that the vote occur
on or in relation to the pending Feinstein amendment at 7:45 p.m. this
evening; and further, that the time between now and then be equally
divided in the usual form, and that there be no amendments in the
second degree.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The Senator from Arizona.
Mr. KYL. Thank you, Mr. President.
As I said, this provision in the bill to divide the ninth circuit is
very important to the State of Arizona because Arizona is the second
largest State in the existing ninth circuit, both in terms of
population and caseload. It, California, and Nevada are all three very
fast growing. And there is no question that the caseload will continue
to grow at least in proportion to the population.
Phoenix, AZ, is now the sixth largest city in the country. Arizona
is, I believe, the fastest growing State in the country. So not only do
we have a situation in which we are growing very rapidly, along with
Nevada and California, but the proposed amendment would result in a
division of the circuit which would affect my own State of Arizona. So
I speak to that issue.
Now, it is not my suggestion, Mr. President, that the circuit be
divided. There is a division of opinion in Arizona on that that
suggests that the bench and bar are split. I do not think there is a
clear consensus in my State as to whether the circuit should be
divided, but I think there is a pretty clear recognition that it will
be. It will happen sooner or later. It is inevitable, as several of my
colleagues have already pointed out here. There is no question, because
of its size and other factors, the circuit is going to be divided one
way or another.
The question is how will it be divided? On that question I think we
have to look at this question of size, population, growth, caseload
growth, and so on. Because if, for example, you divided the circuit the
way it calls for in the bill, the caseload division would be as
follows: The circuit comprised of California and Nevada would have 63
percent of the cases, and the remainder of the circuit would have 37
percent of the cases. That is about a 2-to-1 division, showing just how
big California is. Probably in terms of caseload, the sounder way to do
it would be just to have California. It would still be about 60-40 in
favor of California versus all of the rest of the States in the
circuit.
But I gather that the proponents of this have decided to accommodate
States who have expressed a willingness, through their Senators, to be
added to California or to remain with California, and that Nevada has
done that, as a result of which, to accommodate Nevada, it has been put
with California.
Now, if Arizona were to be added to that circuit, as some people
suggest--again, there is division of view on this--the caseload would
be 73 percent for the Arizona, Nevada, California circuit; 27 percent
for the rest of the circuit. Obviously, that is not a good division for
the circuits. So I have had to consider it from both a perspective of
my State and what makes sense how to approach this issue. It clearly
does not make sense, from a caseload division, to divide the circuit in
a way that would add the three fastest growing States--Arizona, Nevada
and California--together. I think it is bad enough to add Nevada and
California together, though I do not deny that Nevada has a right to be
with California if they desire. But it will soon be unbalanced and soon
be the largest circuit in the country.
[[Page S8056]]
Mr. President, in the end, I conclude I will not oppose this
proposal. I would like to add two comments to those that have been made
by my colleagues. First, there has been a suggestion that this circuit
would be gerrymandered. I do want to suggest that that is not true. It
is not true politically. The division of Democrat and Republican
nominees would be exactly the same with the new division as it would be
under the existing circuit. So I do not think that anybody believes
this is about gerrymandering in a political sense. The percentage of
Democrats and Republicans would be the same. Moreover, it is not a
geographical gerrymandering. It simply takes two of the States of the
circuit and leaves the remaining circuit as it is.
Again, I would prefer that Nevada remain with the rest of the circuit
to have a more evenly balanced caseload. Nevada wants to go with
California--fine. That creates the anomaly that Arizona is divided from
the rest of the circuit. But in the day of air travel, I do not think
that is a particularly difficult problem for us, particularly since the
committee has seen fit to designate both Seattle and Phoenix
administrative sites of the circuit. So you have both a northern and
southern administrative site. I know in the existing ninth circuit,
cases are argued in Phoenix, Seattle, Los Angeles, San Francisco, and
so on. Because of its size, you have to accommodate the travel needs of
the parties, the litigants. So there is an accommodation to that. And
it would exist in this new circuit as well.
But at least the people in the new circuit would not have to travel
to California. So it seems to me that, on balance, maybe the best of a
difficult situation has been made. I should say, the best has been made
of a difficult situation. That is how to make a division that results
in a fairly even distribution of cases, No. 1, and that does not divide
the State of California, which I objected to along with Senator
Feinstein. So in the end, Mr. President, conceding that division is
ultimately going to occur, it seems to me that this is a division that
makes sense. Therefore I will not oppose it.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER (Mr. Sessions). The Senator from California.
Mrs. FEINSTEIN. I think the distinguished Senator from Arizona knows
I greatly respect him, from working together on other issues. I think
we work very well together.
I want to directly address something that he has said about the
fairness of this split, particularly with respect to the size. I say to
him, that isn't the issue. The issue is how the judges are split. I say
to the Senator, this legislation splits the judges. The way in which it
splits the judges is 15 judges for the ninth circuit, and 13 judges for
the newly formed twelfth circuit. Now, the caseload means that the
ninth circuit court judges have a 50 percent greater caseload per judge
than do the twelfth circuit court judges.
The Senator and I discussed these kinds of issues a year or so ago. I
hope you will recall when we were discussing this in the Judiciary
Committee.
There is a letter dated July 18 of this year to Senator Reid from
Chief Judge Procter Hug. What Judge Hug points out is:
Under the bill, the Ninth Circuit is to have 15 judges and
the Twelfth Circuit is to have 13 judges. The Ninth Circuit
would have a 50% greater caseload per judge than the Twelfth.
He goes on and shows the total for California, Nevada, Guam, Northern
Marianas, with a total caseload of 5,448.
With 15 judges, the caseload per judge--363 cases, then the
caseload for Alaska, 204; Arizona, 891; Hawaii, 204; Idaho,
141; Montana, 175; Oregon, 626; Washington, 871, with a total
of 3,112.
With 13 judges, the caseload per judge--239 cases. That is
one of my big objections. One thing I would just bet my life
on is, as a product of a study, there will be a fairer
distribution of judges.
Mr. KYL. Will the Senator yield?
Mrs. FEINSTEIN. If it is on your time, I would be happy to yield.
Mr. KYL. That would be up to Senator Gregg. I am going to agree with
you, so perhaps----
Mr. GREGG. I have no problem with that. This colloquy can be on our
time.
Mr. KYL. I want to say, we discussed the allocation of judges before.
The Senator is exactly correct. I totally agree with you there should
be a fair allocation, meaning that it should be in rough proportion to
the caseload, and the projected caseload, not just the existing
caseload. Therefore, if that means that there should be a different
division of the judges vis-a-vis the States in the new circuit, I would
not only have no objection to that, but I would join the Senator from
California in assuring that that is the case.
This was not my proposal, as the Senator from California knows. But I
would suspect that the proponents of this amendment would be very happy
to ensure that that distribution of judges is made a part of the
legislation. At least, I would work with the Senator from California to
assure that that would be the case.
Mrs. FEINSTEIN. I very much appreciate that, and I take you at your
word. However, what this legislation does will be the law if it is
accepted by the House.
Mr. MURKOWSKI. Could I ask my friend from California a question?
Mrs. FEINSTEIN. Of course.
Mr. GREGG. At this time I would have to reclaim my time because we do
have some additional speakers. So any additional colloquy should come
off the time of the Senator from California.
Mrs. FEINSTEIN. If I may just make my quick statement here.
On four occasions, the Federal judges of the ninth circuit and the
practicing lawyers of the Ninth Circuit Judicial Conference have voted
in opposition to splitting the circuits. The official bar organization
of Arizona--as recently as July 14, a few days ago--and the bars of
California, Hawaii, Idaho, Montana, and Nevada, and the National
Federal Bar Association, all have taken positions against the circuit
division. No State bar organization to this day has taken a position in
favor of circuit division, let alone this division.
Now, let me try to begin to summarize here.
I believe strongly--and I think the other side knows I do not throw
these comments around loosely--that this is really being done for the
wrong reasons and in the wrong way. I think some people did not like
some of the decisions, specifically in mining and grazing. For some it
is being done because they think they will get more judges for their
State. I have had Senators tell me that directly. For some, a new
courthouse is attractive.
The point is, the House of Representatives has passed the very bill,
the amendment of which I am carrying here in the Senate. This proposal,
notwithstanding anything anyone has said, as a member of the Judiciary
Committee for the last 4\1/2\ years --there has never, Mr. President,
in the time you've been there, there has never been a hearing on this
split. There has never been a discussion of the ramifications of this
split on legal precedent or forum shopping. There has never been input
from the judicial council, from the judges, from the bar associations
on this split. That is fact, Mr. President. That is fact.
Yet, an appropriations committee has stolen the jurisdiction of the
Judiciary Committee and moved ahead and proposed a split a few weeks
ago--2 days later they had a split which split California in half--the
next day that was gone and there was the split we are faced with today.
That is why I say it is a gerrymander.
If this were a map before a court on an electoral district with
Arizona floating out here alone, they would say, aha, it is a
gerrymander. Yet it can be done by a committee that does not even have
authorizing oversight jurisdiction, and, bingo, it is before the full
body. I really have a problem with that. I do not think that is right.
I happen to agree with my chairman, California is going to have 50
million people by the year 2025. We should take a look at whether or
not the interests of justice would be carried out by splitting the
largest circuit in the Union. I do not have a problem with that.
What I do have a problem with is worrying, aha, is this being done
because Montana does not like a mining decision? Is it being done
because Washington does not like a timber decision? Is it being done
because someone else doesn't like another decision? Is it being done
because a state wants an additional judge?
I mean, this is a very real and pertinent consideration because never
before in the history of the Union has a
[[Page S8057]]
circuit been split in this manner. So it is indeed very, very
important.
No consideration of costs. I pointed out the Pasadena and San
Francisco courthouses; $140 million has just been spent on them. My
goodness, I can see the spot done now on television. ``They spend all
this money.'' I believe there is no way you can build new courthouses,
and staff them with duplicate positions, and not have it cost at least
$100 million in 1997 dollars. And do you know what? This goes into
place, Mr. President, in October of this year.
This is almost the end of July, and then there's August, September,
and October 1 this goes into effect. No hearing; no study; no talk; no
what do you think, bar of Arizona; what do you think, bar of Nevada;
what do you think, bar of Alaska; or what do you think, bar of Idaho?
It doesn't meet the smell test. That is the problem for me.
Now, let me talk----
Mr. MURKOWSKI. Will the Senator yield for a question?
Mrs. FEINSTEIN. If I may finish my thought, the point has been made--
and the distinguished Senator from Alaska made this point very well--
that 28 out of 29 cases of this session were reversed by the United
States Supreme Court. Bingo, it is a terrible circuit. Well, let me say
that that is only 28 cases out of over 4,480 cases. It is the largest
circuit. That is a very small percentage of the cases it successfully
adjudicated.
Let me just go back to Judge Hug's letter because I believe there is
something important here. The caseload per judge in the ninth circuit
would be 124 cases per judge higher than the twelfth circuit, or 52
percent greater, as I have said, than the twelfth.
Then he raises this:
The provision in the bill for coequal clerks in the twelfth
Circuit is completely unworkable. How can it be efficiently
administered in this way? Is the administration of the
circuit to be done in two separate, coequal headquarters?
Where would the circuit executive be located?
These are all questions that need to be answered. This thing would go
into effect on October 1. No question is answered.
Then Judge Hug says in his letter:
Consider the travel time and expense of the judges.
Presumably, the judges from Alaska and Montana will need to
travel half of the time to Phoenix, and the Arizona judges
will need to travel half the time to Seattle. Presently, the
circuit headquarters in San Francisco is equal distance, and
the air routes convenient. This would not be the case in the
new twelfth circuit. I don't know whether that's good or bad.
My point is that it ought to be looked at. If we had been
able to move ahead, and the House and the Senate agreed on
the study, it would have been done by now. The study would
have been done by now. It is a year and a half ago. It would
have been done by now. Instead, we are faced with another
arbitrary proposal for a split. We are rushing it through. It
is an arbitrary split. No one has looked at costs, or at fair
distribution of judges; no one has heard from a judge or from
a bar association on this split; and no members of any of the
bars of any of the States have indicated their support for
this--none, zero, zilch, none. October 1, it goes into play.
It does not make sense.
How much time do I have remaining, Mr. President?
The PRESIDING OFFICER. The Senator has 11 minutes.
Mrs. FEINSTEIN. I yield the floor and reserve the balance of my time.
Mr. MURKOWSKI. Will the Senator from California yield for a question?
The PRESIDING OFFICER. Who yields time to the Senator?
Mr. MURKOWSKI. I ask for 1 minute.
Mr. GREGG. Mr. President, I yield the Senator from Alaska a minute.
Mr. MURKOWSKI. I believe the Senator from California indicated, Mr.
President, that new California judges would have a 50 percent increase
in caseload, and the Senator from California indicated that would not
be enough judges. I wonder if she meant to say that, in the new ninth
circuit, there would be 63 percent new cases and 53 percent judges, and
in the twelfth circuit, there would be 37 percent new cases and 42
percent judges, which are the figures that we have from the committee,
which hardly reflect a 50 percent increase in the caseload.
Mrs. FEINSTEIN. Mr. President, I would be happy to respond. I am
reading from a letter dated July 18, signed by Procter Hug, Chief
Judge, U.S. Court of Appeals for the Ninth Circuit. What he points out
is--he is using what I believe is current caseload. I would be happy to
share this with the Senator. I read this accurately:
The total caseload filings in California, Nevada, Guam and
the Northern Marianas would be 5,448. The filings in Alaska,
Arizona, Hawaii, Idaho, Montana, Oregon, and Washington would
be 3,012.
The point is, with 13 judges, the twelfth circuit would have 239
cases per judge. The ninth circuit would have 363 cases per judge. That
is an unfair allocation of cases per judge.
Mr. MURKOWSKI. I will not further comment, other than to point out
that I don't think it is a fair statement to suggest that California
judges would have a 50 percent increase in caseload, because that is
not reflected.
Mrs. FEINSTEIN. The Senator misunderstood me. If I might respectfully
get this straight----
Mr. MURKOWSKI. I have no further questions.
Mrs. FEINSTEIN. Mr. President, I will reclaim a moment of my time to
say this. Let me quote the chief judge:
The ninth circuit would have a 50 percent greater caseload
per judge than the twelfth circuit.
That letter is here. Anyone can see it.
I yield the floor and reserve the remainder of my time.
Mr. GREGG. Could the Chair advise us of the time status?
The PRESIDING OFFICER. The Senator from New Hampshire has 14 minutes
and 48 seconds.
Mr. GREGG. And the Senator from California?
The PRESIDING OFFICER. She has 9 minutes 2 seconds.
Mr. GREGG. I yield to the Senator from Alaska, the chairman of the
committee, 9 minutes.
Mr. STEVENS. Mr. President, I shall not use that much time. I do
appreciate the courtesy of the manager of the bill.
Mr. President, we have studied this matter to death. The issue, in
1973, was recommended by Senator Hruska and the Hruska Commission was
created. It recommended then, in 1973, that the ninth circuit court be
split. Every Congress we hear the same thing from the large delegation
in the House and the two Senators in the Senate from California: we
need more study. I think that is what we are hearing again now--have
another study.
It has only been 24 years now that we have been studying since the
first commission reported. But, of course, we do need the advice of
another commission.
Mr. President, I am a California lawyer. I was raised in California,
and I am pleased to have that background. But I tell you, in all
sincerity, I cannot believe that we can continue this situation. This
chart--I am not sure it can be seen, Mr. President. This chart shows
the population and caseload of the circuits. Clearly, the population is
almost 50 million people in the ninth circuit, and it requires some
change when, clearly, the average of all of the others is somewhere
around 20 million people.
I want to address the concern spoken to, I think, by my good friend
from Hawaii, Senator Inouye. It has been 13 years now since a Hawaii
resident was appointed to the ninth circuit. Fourteen judges have been
seated on the circuit since that time, but Hawaii was never recognized.
Senator Inouye has included an amendment in this provision that
guarantees that at least one judge will be appointed to the circuit
court of appeals from the new circuit, when it is created, from each
State. Now, I think the Senate should listen to that kind of
frustration and should listen to the frustration of those who see how
long it takes for a case to be decided by the Ninth Circuit Court of
Appeals.
Mr. President, I said the other day that the Ninth Circuit Court of
Appeals judges come to our State. They come during the summer, and they
have a delightful time visiting our State. In the wintertime, all our
people fly south and some of our lawyers like that. But the litigants
don't like it because the average time that an appeal is pending before
the ninth circuit is so long, it puts a great burden upon our States,
the smaller States in this circuit.
Now, in 1995, the Senate Judiciary Committee report showed that New
York accounted for approximately 87 percent of the second circuit
docket; Texas cases were approximately 70 percent of the fifth circuit
docket. We have considered splitting the ninth circuit before several
times since I have been in the Senate. Mr. President, the overload of
the ninth circuit is now such a serious problem, and it is only going
to get worse if we continue to
[[Page S8058]]
talk about another commission to discuss whether this split should take
place.
The appellate process, for almost one-fifth of the citizens of the
United States, will continue to be inadequate. I believe we are doing
California a favor by splitting this court. They are the only State
that has one circuit all to itself, all to itself--well, Nevada could
make the decision to join if they wish. But the establishment of
tribunals is a responsibility of the Congress, not of a commission. It
is one of our most important responsibilities under the Constitution. I
believe the Senate will shirk its responsibility if we do not act to
correct this problem of the ninth circuit, and I urge the Senate to do
what this amendment would do: create a new twelfth circuit and allocate
to it the States that are suffering greatly by the current crowded
situation and long delays in the Ninth Circuit Court of Appeals.
I thank the Chair and yield back the balance of my time.
Mr. GREGG. Mr. President, does the Senator from California have any
additional speakers?
Mrs. FEINSTEIN. I would like to know how much time I have remaining,
if I might.
The PRESIDING OFFICER. Nine minutes.
Mrs. FEINSTEIN. I reserve the balance of my time.
Mr. GREGG. Does the Senator plan to close? We have one additional
speaker. I will have that speaker go if the Senator is planning to
close as the final speaker.
Mrs. FEINSTEIN. I will speak after the Senator from Washington.
Mr. GREGG. I yield the balance of our time to the Senator from
Washington.
The PRESIDING OFFICER. The Senator from Washington.
Mr. GORTON. Mr. President, the Senator from California makes a
serious argument: we should not split the circuits because we will
waste the $140 million investment in a courthouse in San Francisco,
except that we can split the circuits if this so-called study
commission says we should do so, and she would then have no objection.
Well, either the courthouse is an important consideration, or it is
not an important consideration. Obviously, Mr. President, it is not an
important consideration. I presume--I hope--that the Senator from
California is not arguing that, even if there is a split, all of the
staff and all of the people who are now in that courthouse in San
Francisco would still be there and everything has to be added onto
that. That is often a way in which the Federal bureaucracy operates.
But there is no reason in the world for us to allow it to operate in
that fashion under this set of circumstances.
This can be done efficiently and effectively. But that is the
fundamental argument against this amendment and in favor of the bill as
it stands. The ranking minority member of the Judiciary Committee said
that this is the wrong way to act. The Senator from California says
this is the wrong way to act because it is on an appropriations bill.
Yet, 2 years ago when a bill practically identical to this was
reported by the Judiciary Committee, after full hearings and a full
debate, they objected to it even being debated on the floor of the U.S.
Senate. Now for the first time we have an opportunity to do so.
This Senator has favored this flip since the early 1980's. And this
is the first time we have ever been able so much as to debate it on the
floor of the U.S. Senate.
The arguments against the proposal for split are essentially
procedural. ``Oh, no, we have not had enough hearings. We have not
talked about it for a long enough time. There have not been enough
study commissions.''
There have been hearings for decades. There has been a debate for
decades. It simply cannot be argued in any kind of rationale manner
that a circuit with this number of States, with 14 million square miles
of land and water, with almost 50 million people growing more rapidly
than any other part of the country, with 28 authorized judges at the
present time, 10 more requested on top of that, can be a collegial
body, a court that can understand the cases that come in front of it, a
court in which the members can even learn the names of the other
members of the court.
Of course a division is appropriate, and the division that is being
discussed here today is the division, if there is to be one, that the
Senators in opposition asked for.
We are criticized because the bill changed in form as it got in front
of us. Well, California is not divided because the Senators from
California ask that it not be divided. And we went along.
Nevada remains a part of the ninth circuit because the Senators from
Nevada asked that that be the case as against the bill that was
reported 2 years ago.
Hawaii and the trust territories are with the new twelfth circuit
because, assuming a division, that is where they wanted to be.
Yes, there have been changes, but they have been changes requested by
the very Senators who are here on the floor arguing against the result
of their requests. Justice in these circuit courts will be done better
in circuits that are roughly similar to the other circuits--all of the
other circuits in the United States. Each of these circuits will still
have more square miles than any other, except for, I believe it is the
tenth in the Mountain States, and more when you include Alaska. The
ninth circuit will still be the largest of any and all of them.
I don't believe this is going to be the last such division. But it is
a division whose time came almost a quarter of a century ago. And that
has been resisted by lawyers and judges who are comfortable with the
present situation, with the wonderful travel opportunities they have,
and rank that convenience ahead of the convenience of individuals
seeking justice before those courts who can be served far better, far
closer to home, with far more understanding, if this division becomes
law, than if we simply say, ``Oh, let's wait. Let's have another study.
And let's let that study come up with the same results we did before.
And then we will have another excuse to oppose the division.''
That is what we got when we heard, on the one hand, ``Fine, let's
have the study, and we will agree with it. But, no, we can't divide the
circuit because we have a brandnew $140 million courthouse in San
Francisco.''
No, Mr. President, it is time for the Senate of the United States to
deal with this question as a matter of substance today. It is time to
do justice. It is time to reject this amendment and pass this bill.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I believe I have 9 minutes remaining
on my time. I would like to yield 7 of them to the distinguished
Senator from Delaware, the former chairman of the Judiciary Committee.
The PRESIDING OFFICER. The Senator from Delaware.
Mr. BIDEN. Thank you very much.
Mr. President, this is not the right way to do this. Let me repeat
that again. This is not the right way to do this. If the circuit were
to be split, we should do it in a way we have done it in the past.
When some of my colleagues who have argued for the split in the past
have come before the committee, they have said some of the following
things. The argument is, ``Well, the reason we want a split is we don't
want to have the court, basically a California-dominated court, making
judgments for the folks in my State. We are different.''
And I point out to my colleagues who say that, you know, it is a
funny thing about the circuit courts. Our Founding Fathers set the
circuit courts up for a basic fundamental reason. They didn't want 50
different interpretations of the Federal Constitution. It is kind of
strange. The whole purpose of the circuit court of appeals was to make
sure there was a uniform view as to how to read the Constitution--not a
Montana reading, not a Washington State reading, not a Nevada reading,
not a Hawaii reading, and not an Alaska reading. Geography is relevant
only in terms of convenience--not ideology.
This is all about ideology at its core. That is what this is about.
That is what the attempt to split it is about.
There is no data to sustain that this should be done. Let the
Judicial Conference make a judgment, make a recommendation to us. Let
them decide as they have in the past.
[[Page S8059]]
I say to my friends from the South, before I got here, we split up
what used to be a giant circuit from Texas to Florida. The Senator's
home State was part of the Presiding Officer's home State, was part of
this giant district of the circuit court, and it got split. We did it
the right way. We got the facts. We heard from the Judicial Conference.
We listened to the court.
This is about politics. It is no way to deal with the court. It isn't
how to do this.
Let's look at what we have. We don't have any data on the operation
of the circuit as it is presently configured. So, therefore, it seems
to me, we should at least give some weight to those folks who are on
the court, and those folks who are litigants argue before the court--
the bar of those States.
With that in mind, let me point out that the Ninth Circuit Judicial
Council, the governing body of all the courts in the ninth circuit, is
unanimously opposed to this--Republican appointees to that court,
Democratic appointees to that court, liberal appointees, conservative
appointees, pointed-head appointees, flat-headed appointees. They are
all opposed.
Let's look at the next thing that makes sense to look at--those who
litigate before the court.
The California bar is opposed to this. The Arizona bar is opposed to
this. The Hawaii State Bar Association is opposed to this. Big Sky
Country Bar from Montana is opposed to this. The State of Nevada's bar
is opposed to this, and the State of Idaho.
Mr. President, I would also point out that splitting the circuit, as
proposed, will not guarantee that certain regional interests will be
better represented. Keep in mind that is what this is really about--
regional interests.
That is the part that bothers me about how we are going about this.
Look, I am from the third circuit way back East--Pennsylvania,
Delaware. So I am not telling anybody in the other part of the country
what their business is. But it offends me that we have argued at
least--I have not been here for the debate--in the committee based upon
regional bias. There is not a Western Federal Constitution. There is
not an Eastern Federal Constitution. There is not a Southern Federal
Constitution. There is one Constitution--one.
Another problem with this legislation that the court will face is the
costs incurred. Dividing this circuit requires trading
an infrastructure to support the new twelfth circuit. The Ninth Circuit
Executive Office estimates that the initial startup cost for the
establishment of the new twelfth circuit would amount to tens of
millions of dollars. Operating costs of maintaining two circuits have
been estimated to be more than $5 million per year.
Look, I think the Senator from California has been eminently
reasonable throughout this whole process. By the way, if anybody
wonders whether this is not about regionalism, which is the worst thing
we could be talking about when we talk about the Federal Constitution,
let me remind my colleagues of a point in fact.
No ninth circuit judge has been appointed to the court for a long
time because those who, in fact, are suggesting that this should be
split said, ``Unless it is split, we are not letting any judges go on
the court.''
Think of that now, Mr. President. Isn't that nice?
``You won't split the court so we can have a regional division. We
are not letting any folks get on the court. And then we are going to
tell you that the court is overworked. Then we are going to tell you
the court has a backlog. Then we are going to tell you the court has a
problem.''
The reason, if it does, is because they have arbitrarily held up the
appointments.
Republican judges from the circuit have come to my office--Democratic
judges from the circuit, Reagan appointees, Bush appointees--and said,
``Can't you do something?'' I said, ``You are talking to the wrong guy.
You are preaching to the choir. Go to the guys who are blocking these
judges.''
So, Mr. President, you can make an argument that this court is
overworked. You can make the argument that this distribution is but
part of the argument. The reason is a self-fulfilling prophesy. You
don't put judges on the circuit. You create a problem.
I can see my time is up. I thank my colleague for yielding.
This is a bad idea. It is not the right way to go about it.
Mrs. FEINSTEIN addressed the Chair.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I thank the Senator from Delaware for
his excellent comment. I agree with him 100 percent. This is the wrong
way for the wrong reason. The reasons are regional. The reasons are, if
we do not like the decision, we don't appoint the judges.
One-third of the ninth circuit today is vacant. I repeat, one-third
of the judgeships on the ninth circuit today are vacant. And I do not
believe that there is a plan to appoint another judge to the ninth
circuit until we bow to this. What we are bowing to is something that
has never been heard, never been studied in the 4\1/2\ years that I
have been on the Judiciary Committee of the Senate.
Mr. President, I ask unanimous consent to include in the Record a
July 14, 1997 statement of the Arizona bar in opposition to this split,
a statement of the California bar in objection to this, a recent letter
from the Governor of the State of California in objection to this, a
July 22 letter from the chairman of the House Judiciary Committee in
objection to this, a letter from the chief judge of the ninth circuit
in objection to this, and the chief judge's letter on the unfair
allocation of judges. I also have in my files letters objecting to the
earlier proposals to split the circuit. These include letters of
objection from the State Bar of Nevada, the State Bar of Montana, the
State Bar of Hawaii, the Los Angeles County Bar, lawyers'
representatives of the ninth circuit, and the Judicial Council.
There being no objection, the material was ordered to be printed in
the Record, as follows:
House of Representatives,
Committee on the Judiciary,
Washington, DC, July 22, 1997.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Orrin: I understand that this week the Senate is
expected to consider S. 1022, the Commerce-Justice-State-
Judiciary appropriations bill. Included in the bill is a
major piece of substantive legislation, the ``Ninth Circuit
Court of Appeals Reorganization Act of 1997.'' This provision
of the bill (section 305) would amend Title 28 of the United
States Code by dividing the existing Ninth Circuit into two
new circuits. As you well know, altering the structure of the
Federal judicial system is a serious matter. It is something
that Congress does rarely, and only after careful
consideration.
It is anticipated that an amendment will be offered to
replace the circuit division rider with legislation to create
a commission to study the courts of appeals and report
recommendations on possible change. This legislation, H.R.
908, has already passed the House unanimously on a voice vote
on June 3, 1997. A similar bill, S. 956, was passed
unanimously by the Senate in the 104th Congress. This is a
far superior way of dealing with the problems of caseload
growth in the Ninth Circuit and other courts of appeals. I
urge your support for the amendment.
Sincerely,
Henry J. Hyde,
Chairman.
____
State Capitol,
Sacramento, CA, July 11, 1997.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Orrin: I have been closely following the renewed
interest in Congress over proposals to split the Ninth
Circuit. I understand that a new proposal, under
consideration by the Appropriations Committee, would split
the Ninth Circuit and divide California in half between the
resulting circuits. I am writing to register my strong
opposition to the passage of any such measure prior to such
time that an objective study is commissioned and issued
addressing the many, serious ramifications of such a split.
As you may know, I have been on record in opposition to
previous proposals to split the Ninth Circuit on the grounds
that they were a form of judicial gerrymandering which sought
to cordon off some judges and keep others.
However, the present proposal to split California between
two circuits would not only amount to judicial gerrymandering
but would invite forum shopping of the rankest kind.
California would face the unprecedented prospect of a
``circuit split'' on a question of law within the same state,
which would invite lawyers to ``forum shop'' between the two
resulting halves of California on the basis of which law is
more favorable to their position. This would be particularly
frustrating for State government, where
[[Page S8060]]
legal challenges to its actions may generally be brought in
any venue within the State.
While a split of the Ninth Circuit would generate a number
of inconsistent rulings along the West Coast in areas such as
commercial law, environmental law (including standing to
sue), and admiralty law, a split of California would
exacerbate this inconsistency by subjecting Northern
California's cities, like San Francisco, to different
controlling law than Southern California's cities, like Los
Angeles.
Nor would the spectacle of forum shopping between circuits
within California be alleviated by a mechanism similar to
that proposed in a 1993 House bill (H.R. 3654), which
suggested the creation of an ``Intercircuit California En
Banc Court.'' As proposed in that bill, the Intercircuit
California Court would permit en banc review by judges of
different circuits ``whose official duty stations are in the
State of California.'' Such an intercircuit en banc panel
would necessarily differ from the composition of the en banc
panels for each of the participating circuits. This, of
course, raises the specter of greater inconsistencies among
the circuits arising from overlapping en banc panels. As the
proposal would permit the Intercircuit Court to resolve only
intercircuit conflicts of federal law, conflicting
interpretations of California substantive law arising in
diversity cases would presumably remain unresolved. Of
course, these additional circuits would impose additional
burdens on the U.S. Supreme Court.
Admittedly, the Ninth Circuit handles more cases than any
other circuit. However, statistics refute any objection that
the Circuit is ``too big.'' The median time for it to decide
appeals (14.3 months as of September 30, 1995) is less than
that for the Eleventh Circuit (15.1 months), and only
slightly higher than that for the Sixth, Seventh and District
of Columbia Circuits.
The real issue underlying this debate appears to be one of
judicial gerrymandering, which seeks to cordon off some
judges in one circuit while keeping others in another because
of concerns, whether perceived or real, over particular
judges' perspectives or judicial philosophy. If this is the
issue, I submit that the proper means to address it is
through the appointment of judges who share our judicial
philosophy that judges should not make policy judgments, but
should interpret the law based on the purposes of the statute
as expressed in its language, and who respect the role of the
states in our federal system.
I urge you to discourage your colleagues from approving any
proposed split of the Ninth Circuit, and particularly one
that splits California, until such time as a study is issued
that carefully examines the implications of this significant
issue. I would be pleased to contribute one or more
representatives to assist with such a study.
Sincerely,
Pete Wilson,
Governor.
____
The State Bar
of California,
San Francisco, CA, July 14, 1997.
Re State Bar of California Support for Commission to Study
the Federal Courts of Appeals and Opposition to Splitting
the Ninth Circuit Court of Appeals.
Hon. Dianne Feinstein,
U.S. Senate,
Washington, DC.
Dear Senator Feinstein: The Board of Governors of the State
Bar of California strongly opposes the recent proposals to
split the Ninth Circuit Court of Appeals. We support the
establishment of a non-partisan commission to study the
structure and alignment of the federal courts of appeals. A
bill to establish such a commission, H.R. 908, unanimously
passed the House in June. It has been 24 years since the last
major study of the structure and alignment of the federal
courts of appeals was conducted. No proposal to restructure
the Ninth Circuit should be considered prior to the
completion of a thorough study.
Some have argued that the size of the caseload of the Ninth
Circuit argues for its division; however, caseload growth is
an issue common to courts of appeals nationwide. Splitting
the Ninth Circuit, ostensibly because of its caseload, before
considering how to respond to growing caseloads nationwide,
will complicate rather than advance solutions to caseload
growth. Furthermore, repeated division of circuits in
response to growth is likely to create a proliferation of
balkanized circuits.
We have heard that various proposals to split the Ninth
Circuit may be made in the Senate Appropriations Committee,
for example, to include California and Nevada in one circuit
and to join other states in the Continental United States in
another circuit, including non-contiguous Arizona; or to
place California in a single circuit with the island
territories, with all other states presently in the Ninth
Circuit in a separate circuit. The variety of proposals
indicates that there is no consensus, even among proponents,
as to how any split should be achieved.
We are strongly opposed to all of these proposals to split
the Ninth Circuit. They represent a form of judicial
gerrymandering and are not based upon any study of the Ninth
Circuit or of the overall needs of the federal courts of
appeals. They violate the established principles that federal
judicial circuits encompass three or more states and be
designed to transcend parochial interests. These proposals
are likely to increase the problems of the federal courts of
appeals and make these problems more costly and difficult to
fix. The multiplicity of proposals that have been made,
without study, simply emphasize the need for a thorough study
of the federal appellate courts as a whole.
For these reasons, we believe that any proposal to split
the Ninth Circuit, or to realign any other circuit, needs to
be informed by a non-partisan study of the structure and
alignment of the federal courts of appeal.
I have written a similar letter to Senator Boxer, who is a
member of the Senate Appropriations Committee.
Sincerely,
Thomas G. Stolpman,
President.
____
State Bar of Arizona,
Phoenix, AZ, July 14, 1997.
Hon. Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: This letter is simply to confirm that
the State Bar of Arizona has repeatedly opposed any division
of the Ninth Circuit Court of Appeals, and supports the
House's proposal for a study commission.
Sincerely,
Don Bivens,
President-Elect.
____
United States Courts,
For the Ninth Circuit,
Reno, NV, July 23, 1997.
Hon. Dianne Feinstein,
U.S. Senator,
Washington, DC.
Dear Senator Feinstein: This afternoon we had a meeting of
the active and senior judges of the Ninth Circuit Court of
Appeals, for the sole purpose of discussing the current
efforts underway by the Senate Appropriations Committee to
split the Ninth Circuit. After a thorough discussion, the
judges voted overwhelmingly to support the creation of a
study commission to study the structure of the circuits.
Altering the structure of the federal judiciary system is
an extremely serious matter, something that should be done
rarely and only after careful, serious study and
consideration.
We strongly urge the members of the Senate to support the
creation of a commission to conduct a thoughtful, thorough
and complete study of the matter.
Our court asked me to convey to you our appreciation for
your continued leadership in this matter.
Yours sincerely,
Procter Hug, Jr.,
Chief Judge.
____
United States Courts
For the Ninth Circuit,
Reno, NV, July 18, 1997.
Hon. Harry M. Reid,
U.S. Senator,
Washington, DC.
Dear Harry: After reviewing this matter yet again, I have
some possible arguments for the floor of the Senate, giving
examples of why this is a hasty and ill-considered bill and
why a Commission should study such an important issue.
1. Under the bill, the Ninth Circuit is to have fifteen
judges and the Twelfth Circuit is to have thirteen judges.
The Ninth Circuit would have a 50% greater caseload per judge
than the Twelfth Circuit.
States: Filings
California....................................................4,840
Nevada..........................................................500
Guam.............................................................87
Northern Marianas................................................21
________
Total.......................................................5,448
========
With 15 judges, the caseload per judge..............................363
========
Alaska..........................................................204
Arizona.........................................................891
Hawaii..........................................................204
Idaho...........................................................141
Montana.........................................................175
Oregon..........................................................626
Washington......................................................871
________
Total.......................................................3,112
========
With 13 judges, the caseload per judge..............................239
The caseload per judge in the Ninth Circuit would be 124
cases per judge higher than the Twelfth Circuit, or 52%
greater than the Twelfth.
2. The provision in the bill for co-equal clerks in the
Twelfth Circuit is completely unworkable. How can it be
efficiently administered in this way? Is the administration
of the circuit to be done in two separate co-equal
headquarters? Where would the Circuit Executive be located?
3. Consider the travel time and expense of the judges.
Presumably, the judges from Alaska and Montana will half the
time travel to Phoenix, and the Arizona judges will half the
time travel to Seattle. Presently, the circuit headquarters
in San Francisco is equidistant and air routes convenient.
This would not be the case in the new Twelfth Circuit.
Harry, I suggest these arguments be saved for the floor to
avoid changes or arguments prepared to meet them.
Yours Sincerely,
Procter Hug, Jr.,
Chief Judge.
____
Statement of Administration Policy
The Judiciary: Ninth Circuit
The Administration opposes the provision in the Committee
bill that would reorganize
[[Page S8061]]
the Ninth Circuit by splitting it into two separate circuits.
We understand that other substantive amendments to divide the
Ninth Circuit may be offered on the Senate Floor. The
Administration strongly objects to using the appropriations
process to legislate on this important matter. The division
of the Ninth Circuit is an important issue not just for the
bench and the bar of the affected region, but also for the
citizens of the Ninth Circuit. The Administration believes
that a much better approach would be passage of legislation,
H.R. 908--already passed by the House and currently pending
at the desk in the Senate--that would create a bipartisan
commission to study this difficult and complex question and
make recommendations to the Congress within a date certain.
This would allow for substantive resolution of the issue in a
deliberative manner, allowing all affected parties to voice
their views.
The PRESIDING OFFICER. The Senator's time has expired.
Mrs. FEINSTEIN. I thank the Chair.
I yield the floor.
Mr. GREGG. Mr. President, I have a couple of minutes left.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. Before getting to a vote on this issue, just let me make
this point.
Were this a judicial proceeding, there is something called judicial
notice. That is like water runs downhill and the Sun comes up in the
East. I think the Court would take judicial notice of the fact the
ninth circuit does not work; it is too big; it has too many people for
one circuit to manage; it has too many judges to work effectively; it
has too large a geographic region. This is an attempt to address that
issue. It is a very important issue to address. It is an affordable
issue to address. I hope my colleagues will vote down this amendment.
Have the yeas and nays been asked for on this amendment?
The PRESIDING OFFICER. They have not.
Mr. GREGG. Does the Senator from California wish to ask for the yeas
and nays?
Mrs. FEINSTEIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The yeas and nays have been ordered. The clerk will call the roll.
The result was announced--yeas 45, nays 55, as follows:
[Rollcall Vote No. 204 Leg.]
YEAS--45
Akaka
Baucus
Biden
Bingaman
Boxer
Breaux
Bryan
Bumpers
Byrd
Cleland
Conrad
Daschle
Dodd
Dorgan
Durbin
Feingold
Feinstein
Ford
Glenn
Graham
Harkin
Hollings
Inouye
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Mikulski
Moseley-Braun
Moynihan
Murray
Reed
Reid
Robb
Rockefeller
Sarbanes
Torricelli
Wellstone
Wyden
NAYS--55
Abraham
Allard
Ashcroft
Bennett
Bond
Brownback
Burns
Campbell
Chafee
Coats
Cochran
Collins
Coverdell
Craig
D'Amato
DeWine
Domenici
Enzi
Faircloth
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kempthorne
Kyl
Lott
Lugar
Mack
McCain
McConnell
Murkowski
Nickles
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Warner
The amendment (No. 986) was rejected.
The PRESIDING OFFICER (Mr. Hagel). The Senator from New Hampshire.
Mr. GREGG. Mr. President, I move to reconsider the vote.
Mr. BURNS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. SARBANES. Mr. President, is it in order to send an amendment to
the desk at this point?
The PRESIDING OFFICER. Is there objection to laying aside amendment
979? Without objection, it is so ordered.
Amendment No. 989
(Purpose: To Strike the Provisions Dealing With the Withdrawal of the
United States From Certain International Organizations)
Mr. SARBANES. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Maryland [Mr. Sarbanes], proposes an
amendment numbered 989.
On page 124, beginning on line 5, strike all through page
125, line 2.
Mr. SARBANES. Mr. President, could we have order in the Senate?
The PRESIDING OFFICER. The Senate will be in order. The Senator from
Maryland.
Mr. SARBANES. Mr. President, I want to direct my colleagues'
attention to section 408 of this bill, on pages 124 and 125. I am
absolutely stunned to find this language in this legislation, because
it provides for our withdrawal from the United Nations.
What it says, if I understand it correctly, is that if the
appropriation does not come up to the level of the U.N. assessment,
then the United States shall withdraw from an international
organization, but I assume it is primarily directed at the U.N.
Let me just read a couple of paragraphs to my colleagues.
The United States shall withdraw from an international
organization under this section in accordance with the
procedures identified for withdrawal in the treaty, pact,
agreement, charter, or other instrument of that organization
which establishes such procedures.
Unless otherwise provided for in the instrument concerned,
a withdrawal under this section shall be completed by the end
of the fiscal year in which the withdrawal is required.
This is a small section located in the latter part of this
legislation. As you read through this bill, all of a sudden, you come
across the provision. If we are going to withdraw from the U.N., we
ought to have a full-scale debate. This is not a minor decision. There
are some people in the country who would like to do that, but if we are
going to undertake to do so we ought to have a full scale debate.
What this section says as it starts off is:
Notwithstanding any other provision of law, the United
States shall withdraw from an international organization if
the President determines that the amount appropriated or
otherwise available for a fiscal year . . . is less than the
actual amount of such contributions. . . .
In other words, the assessments. So, if we do not appropriate the
full assessment, as I understand this section, the President has to
begin withdrawal procedures.
There are many years when we have not met the assessment. In fact, we
continue to run arrearages. We just passed legislation here that had
certain conditions for paying our U.N. dues, that withheld certain
amounts, required certifications, and so forth and so on.
I don't know where this provision came from but it is a backdoor way
of compelling our withdrawal from the United Nations.
The amendment that was sent to the desk would strike this section
from the bill. I urge my colleagues to support the amendment. We should
not be talking about withdrawal from international organizations. We
are the world's leading power. We essentially use these international
organizations to serve our interests. Now we come to this section,
which is sort of hidden away. The upshot of it would be to, in effect,
lead us to begin withdrawal procedures from the United Nations.
I don't think we even ought to have any references to withdrawal.
Certainly the way this provision is written, the bill is going to force
us out of the U.N.
I hope the committee, upon reflection, would agree to drop the
section from the bill.
Mr. HATCH. Will my colleague yield for a second?
Mr. SARBANES. Certainly.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. He is just yielding to me. But I absolutely agree with
you. I absolutely agree with you. Let me tell you, during this last
cold war time, I had a lot to do with the ILO when I was chairman of
the Labor Committee and ranking member there, and ever since, when our
tripartite organization--Government, labor and business--saved this
country and countries all around this world from the tyranny of
totalitarianism, right at the ILO.
[[Page S8062]]
I can remember one trip I made over there because Irving Brown called
me. He was the head of our delegation. He was the International Vice
President of the AFL-CIO, and in my opinion the strongest anti-
Communist in the world at the time. He stopped the Communists from
taking over the French docks. He went into Paris before the end of the
Second World War--one of the most heroic figures I ever met in my life.
And he led our delegation with the full support of labor, business, and
Government, year after year. He died here a few years ago. I went to
his memorial service here.
But I know what the ILO has meant to this country and what it has
meant to free trade unionism around the world and what it has meant to
freedom.
I have to tell you, if we have this provision continue in this bill,
since all three of these organizations, the WHO, the ILO, and the
agricultural organization, we are behind in payments to them, it would
mean it would have to come down to choosing one of them that they would
delete. I can tell you right now, the one, probably the weakest that
would be deleted, would be the ILO. I have to tell you, that preserves
free trade unionism around the world, it protects freedom around the
world, and, I have to tell you, quells disruptions and problems all
over the world. It helps us all over the world to spread democracy.
I don't want to see that happen, and I think the distinguished
Senator from Maryland has brought up a very, very good point here. I
call my colleagues' attention to it. I am grateful he has yielded to me
for these few remarks. I hope they have been helpful to my colleagues
on both sides, but I have been there, I know how important this is. I
believe this is not the thing to do, to have that particular language
left in there as it is. So I support my colleague from Maryland.
Mr. BIDEN. Will the Senator from Maryland yield for a brief comment?
Mr. President, this is the second time we have addressed this issue
in the last several weeks. A similar provision was in the State
Department authorization bill that we dealt with. We raised the issue
then, and the Senator moved to strike a similar provision, a withdrawal
provision. It was accepted by a voice vote. This bill went on to pass
the Senate 90 to 5, I believe.
I am surprised this issue has surfaced again. Not only does section
408 depart from the State Department authorization bill, but it is bad
policy; it is just simply bad policy.
I hope my friends, the managers of this bill, will consider the fact
that we have been through this once already and maybe allow us just to
have a voice vote and move on. We have enough to fight over in this
bill.
I have much more to say on this, but, as the old joke goes, everybody
has already said it, so I am not going to repeat it. The Senator from
Maryland is absolutely right; it is a repeat of what we did.
I thank the Senator for yielding to me, and I yield the floor.
Mr. GREGG. 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. SARBANES. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
Mr. GREGG. I object.
The PRESIDING OFFICER. Objection is heard. The clerk will continue
calling the roll.
The legislative clerk continued to call the roll.
Mr. LOTT. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. Mr. President, I seek recognition so we can announce there
will be no further rollcall votes tonight. There will be at least one
vote tomorrow. And I believe that we can say there will be one vote
tomorrow. It will be an important vote. We expect that that vote will
be either on the tuna-dolphin issue or, more than likely, under the
agreement we are going to propound, it would be on the global warming
issue.
So there would be a vote tomorrow. A time would have to yet be
determined exactly what time that would be, but probably not before 10
o'clock in the morning. And then we hope to work out some
understandings with regard to State, Justice, Commerce. And then we
would probably not have final votes on that until next Tuesday, I
believe it would be.
So that is the point I wanted to announce. There will be at least one
vote tomorrow, and no further rollcall votes tonight. We will make an
announcement with regard to Monday later on, in a few minutes, or
tomorrow, about the situation on Monday.
Mr. McCAIN. Is the leader's intention, if there is no agreement on
tuna-dolphin, that there will be a cloture vote tomorrow morning on
tuna-dolphin that he had previously anticipated?
Mr. LOTT. Unless there is an agreement, there will be a cloture vote
on tuna-dolphin, but we are working on an agreement where it may not be
in the morning. But we will have one in short order. We are trying to
work through all the different players and make sure everybody has been
consulted. That is why we are not asking for the UC right now.
I think I should go ahead and say to the chairman of the
Appropriations Committee, it would be our intent, because of requests
of a number of Senators, and because of the cooperation we have
received, that we would not have any recorded votes on Monday. But we
are trying to also clear an agreement that the Democratic leader
indicated he would like to approve with us to take up the
Transportation appropriations bill some time during the day on Monday,
but it would not lead to recorded votes. The next recorded vote would
be tomorrow, and then Tuesday morning and Wednesday morning under the
agreements we are working. But we have not cleared them with everybody
at this point.
With that, at this time, 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. KERRY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KERRY. Mr. President, I ask unanimous consent to proceed as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Kerry pertaining to the introduction of S. 1067
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Ms. COLLINS. Mr. President, I ask unanimous consent that the pending
amendment be set aside so that I can engage in a brief colloquy with
the chairman of the subcommittee.
The PRESIDING OFFICER (Mr. Brownback). Is there objection?
Mr. SARBANES. Reserving the right to object, I don't think it is
necessary to set the amendment aside in order to have a colloquy.
The PRESIDING OFFICER. The Senator is correct. It is not necessary.
Ms. COLLINS. I stand corrected.
Mr. SARBANES. Mr. President, I object to the request, but it doesn't
preclude the distinguished Senator from having her colloquy.
The PRESIDING OFFICER. The objection is heard. The Senator from Maine
is recognized.
Ms. COLLINS. Mr. President, I ask unanimous consent to be recognized
for such time as I may consume for a brief colloquy.
The PRESIDING OFFICER. Without objection, it is so ordered.
NWS REORGANIZATION
Ms. COLLINS. Mr. President, I rise today to engage in a colloquy with
the distinguished chairman of the subcommittee, Senator Gregg,
regarding the National Weather Service's ongoing top-to-bottom review
of its operations and structure.
I am taking this opportunity today to express my hope and belief that
this review process will conclude that the Weather Service Office in
Caribou, ME, should be fully upgraded to a Weather Forecasting Office.
I just want to comment very briefly, Mr. President, on a few of the
reasons why the Caribou Weather Service Office should be upgraded.
In general, it is the Weather Service's policy that weather
forecasting
[[Page S8063]]
offices should cover roughly 17,000 square miles. Right now, the
Weather Forecasting Office in Gray, ME--which is more than 230 miles
from Caribou--is attempting to provide services for roughly 63,000
square miles, an area more than three times larger than the norm. Given
the huge area involved, it is extremely difficult for the small staff
of a Weather Service Office to provide the services necessary to ensure
public safety.
For example, the Weather Service Office currently has only one
electrical technician who must service equipment in Frenchville,
Caribou, Houlton, and as far south as Millinocket, in Penobscot County.
This is an enormous workload for just one employee, particularly in
light of the possibility that repairs may be needed at the same time at
different locations far away from each other.
Accurate and timely weather reports are essential to Aroostook
County, the largest county in Maine, for two reasons: one involving
public safety, the other an economic concern.
Mr. President, northern Maine experiences more than its fair share of
severe weather, including blizzards in the winter months. Many of my
colleagues have probably heard weather reports in which my hometown of
Caribou has recorded the lowest temperature in the Continental United
States. Accurate and timely weather reports are essential for public
safety.
The second reason for upgrading the Weather Service Office centers on
the nature of the economy in the county. Natural resource-based
industries such as agriculture, logging, and tourism are the mainstay
of the county's economy. Our potato farmers, for example, must have
quality weather forecasts and reports in order to know best when to
plant and harvest their crops.
For these public safety and economic reasons, I am convinced that
upgrading the Weather Service Office in Caribou is a necessary action
for the National Weather Service to undertake, and I hope that the
Appropriations Committee will act favorably on upcoming funding
requests.
Mr. President, I yield the floor so that my distinguished New England
neighbor and colleague, Senator Gregg, may respond to my concerns.
Ms. SNOWE. Mr. President, I am pleased to join my colleague from
Maine, Senator Collins, and the distinguished chairman of the
subcommittee, Senator Gregg, today to discuss an issue of utmost
importance to Aroostook County, the Caribou Weather Service Office.
The bill before us requires the National Weather Service [NWS] to
consult with the subcommittee before making any reprogramming requests
in relation to the top-to-bottom review that is currently underway. As
part of their review, NWS will consider whether the Caribou Weather
Service Office should be upgraded to a weather forecasting office.
Under the National Weather Service's modernization plan, a weather
forecasting office will have Doppler radar. The Doppler radar would
give Caribou the ability to forecast warnings for sudden and severe
changing weather patterns so that the communities the weather station
serves will be able to respond quickly. At the present time, the
nearest Doppler radar is in Gray, ME, more than 200 miles away. This is
too far away to be of immediate help to Aroostook County.
Aroostook County is one of the largest counties in the United
States--the size of Connecticut and Rhode Island combined--and its
economy is dominated by agriculture, trucking, and forest products
industries, all of which rely heavily on timely and accurate weather
information. The Caribou station provides vital information on a daily
basis to northern Maine communities that must deal with a wide range of
weather patterns from bitter cold and snow to severe thunderstorms and
flooding. An upgrade from a weather service office to a weather
forecasting office would improve the weather forecasting abilities of
the Caribou station, thereby improving the ability of the affected
towns to react to sudden and severe weather changes.
Once the NWS has completed its review, I look forward to working with
Chairman Gregg and the subcommittee to ensure that the recommended
changes are funded in an expeditious manner.
Mr. GREGG. Mr. President, I appreciate the Senator from Maine raising
this very significant issue to the folks of Northeastern Maine. Those
of us who have been to Caribou understand that it is the coldest place
in America, consistently, and recognize that the issue of weather and
predictability of weather is very important. Also, I know how important
upgrading the Caribou Weather Service Office into a Weather Forecasting
Office is for the people of Aroostook County. It is a major issue, and
I can understand how strongly my friend and colleague from Maine feels
about this matter.
The Senator from Maine, Senator Collins, has made a very persuasive
case for why the Weather Service Office in Caribou, ME, should be
upgraded into a Weather Forecasting Office. We must always work to
ensure public safety, and given the enormous land area, a Weather
Forecasting Office would be a tremendous benefit for the people of
northern Maine.
You have my assurance, Senator Collins, that when the subcommittee
receives the National Weather Service report and recommendations on a
reorganization plan, the subcommittee will work closely with you
regarding the Caribou, ME, Weather Service Office.
Ms. COLLINS. I thank the Senator very much for his assistance.
Mr. REED addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island.
Slamming
Mr. REED. Mr. President, I would like to take a moment to discuss a
sense-of-the-Senate resolution which is included, I believe, in the
managers' amendment, with the concurrence of the Senator from New
Hampshire and the Senator from South Carolina.
The thrust of my amendment is to confront an issue which is growing--
the issue of slamming--where individuals who have signed up for long
distance telephone service have their service changed illegally. This
is a growing problem, a problem that we must confront. It is a problem
that--in fact, as I considered it, I also contemplated the construction
of an amendment to this appropriations bill that would have dealt with
the problem by mandating better proof that a customer has actually
changed service, including criminal penalties for slamming, and other
deterrences.
As I spoke with my colleagues and law enforcement officials, I came
to realize, through many different viewpoints, that an amendment at
this time would delay the appropriations process. So rather than
introducing an amendment, I have proposed a sense-of-the-Senate
resolution which, again, I believe has been accepted and will be
maintained within the managers' agreement.
Before going forward, I commend and thank the chairman, Senator
Gregg, and the ranking member, Mr. Hollings, and also Chairman McCain
and Chairman Burns for their generous assistance in this endeavor.
Mr. HOLLINGS. Mr. President, if the distinguished Senator will yield.
The Senator from Rhode Island has done a valuable service to the Senate
in bringing this to our attention. The FCC has just promulgated a rule
relative to slamming just this past week. This sense-of-the-Senate
resolution is consistent with it, in the sense that it would require
the mandating of the evidence itself, civil fines, and a civil right of
action. I think it really emphasizes the concern that all of us have
had in the communications field of this particular malpractice. I hope
we can help, with this sense-of-the-Senate resolution, emphasize the
need to expedite the rulemaking on the part of the FCC. I thank the
distinguished Senator from Rhode Island and I join in his resolution.
Mr. REED. Mr. President, I yield to the Senator from New Hampshire,
without losing my right to the floor.
Mr. GREGG. Mr. President, I support the efforts of the Senator from
Rhode Island to put a sense-of-the-Senate resolution in this bill
relative to this very important issue. His sense of the Senate tracks
the FEC regulation. I think it is very appropriate that he has raised
the visibility of this issue, and the sense of the Senate will be
included in the managers' amendment.
Mr. REED. Mr. President, reclaiming my time, I thank the Senator from
New Hampshire for his support. I would
[[Page S8064]]
like to just briefly describe the problem and also the ongoing
discussion with the FCC and also here within Congress.
First, as both my colleagues have indicated, this is an alarming and
growing problem. The Federal Communications Commission is dealing with
the problem now. They will shortly propose a rule that will take away
the financial incentive for some of these renegade companies who
essentially illegally change service. Surprisingly, today under FCC
rules, a renegade company can, in fact, illegally switch a customer and
still get the benefits of that month or of several months of charges.
The FCC has proposed to change this.
This sense-of-the-Senate resolution supports that proposed rule
change and the other activities the FCC is contemplating. One of the
reasons we are here today is that, under the present rules of the FCC,
telephone companies must get either a verbal or written response in
terms of a formal request to change. The problem with respect to a
written consent is that, many times, they are hidden in sweepstakes
promotions, giveaways and, in fact, the nature of the written response
is unknown to the consumer. Once again, the FCC is proposing to change
this new rule. I support that change and encourage them to go forward.
The phone company can also rely upon the verbal assent of a consumer,
but there are problems with this verbal assent, also. Some of the
problems we have seen with telemarketers are the fact that they will
deceive the consumer about identity or the nature of the service, or
they will obtain the consent of a child, or stranger in the household,
or disregard the consumer's decline to switch the service, or flatout
not even bother to get the verbal assent and claim that they do in
retrospect. The problem with this verbal authorization is proof. Again,
the FCC has taken some steps in this regard. They are proposing to
eliminate what is an option today, where someone presumably could
consent over the phone and then receive a package later from the
company requiring that consumer to send a card in to deny the service
change. The FCC once again is trying to eliminate that procedure, also.
These are all positive steps. I encourage, and this resolution
encourages, the FCC to pursue those steps.
This is a major problem for consumers in the United States. Fifty
million people each year switch their phone service. One million of
those switches are likely to be fraudulent. One regional carrier now
estimates that 1 in 20 of the switches in their system are fraudulent
switches. This problem has tripled since 1994. It is now the FCC's No.
1 consumer complaint. Therefore, this problem is something that we
should deal with, and deal with decisively.
In my own home State of Rhode Island, there are abundant examples of
consumers who have been disadvantaged by this illegal switching.
Indeed, the Rhode Island Public Utilities Commission has noted this
complaint as the No. 1 complaint they receive with respect to telephone
services. For example, a small businessperson in Newport, RI, had his
800 number switched, and rather than an 800 number, the only people who
could call the business were residents of Alaska.
In Smithfield, RI, a family had their phone service illegally
switched. They protested, but before they could rectify the problem,
their phone service was terminated because they refused to pay the bill
for the illegal company that switched them.
These are problems that have to be addressed, and I hope are being
addressed today by the FCC, and perhaps ultimately our legislation in
this body.
What I hope we could do would be to focus more resources of the FCC
on this problem. In 1996, the FCC received 16,000 complaints about
slamming, but they only were able to successfully prosecute and induce
judgment against 15 companies. They don't have the resources. They need
those resources. Indeed, I worry that law enforcement agencies around
the country not only lack resources but lack, ultimately, the proof
that a switch has been made illegally. Law enforcement officials in
certain States, such as Connecticut, Wisconsin, California, Texas, and
Illinois, have been successful, but they need additional support.
Indeed, one of the major elements of the legislation I was
contemplating was the requirement not only of written proof but, also,
in the case that an oral or verbal consent was given, some type of
recording of assent so that law enforcement authorities could verify
decisively whether or not the appropriate assent had been made. It is
necessary for us to balance the needs for a flexible system by which
consumers can make choices and change their service to one that
protects their right to ensure that it is their choice and not the
result of fraudulent or manipulative practices by unscrupulous
companies. I believe we can do that.
I believe we have taken a step forward today with this sense-of-the-
Senate resolution to start on that path. I look forward to offering
independent legislation which I think will assist the current effort of
the FCC to resolve this grave problem that is growing each day.
Once again, I thank my colleagues, Senator Gregg, Senator Hollings,
Senator McCain, and Senator Burns, for their work and for their effort
on this. Others are interested. I know Senator Campbell and Senator
Durbin are also interested in this problem.
We have an opportunity today to send a strong message to the FCC to
move forward and also to continue to contemplate and deliberate about
legislation which will assist in their efforts and end this scandalous
problem, the No. 1 consumer complaint today with respect to
telecommunications slamming.
I thank my colleagues. I yield the remainder of my time.
Mr. KERRY addressed the Chair.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KERRY. Mr. President, I had a discussion with the Senator from
North Dakota. I am going to be very, very brief, with his indulgence.
The PRESIDING OFFICER. Is there objection to laying aside the pending
amendment?
Mr. KERRY. Mr. President, I ask unanimous consent that we temporarily
lay aside the amendment for the purpose of introducing my amendment,
and the moment my introduction is completed that the pending amendment
will return and be the pending amendment.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Amendment No. 992
(Purpose: To provide funding for the Community Policing to Combat
Domestic Violence Program)
Mr. KERRY. I send an amendment to the desk.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:
The Senator from Massachusetts (Mr. Kerry), for himself,
Mr. Dodd, Mrs. Murray, Mr. Lautenberg, and Mr. Johnson,
proposes an amendment numbered 992.
Mr. KERRY. 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:
On page 29, line 18, insert ``That of the amount made
available for Local Law Enforcement Block Grants under this
heading, $47,000,000 shall be for the Community Policing to
Combat Domestic Violence Program established pursuant to
section 1701(d) of part Q of the Omnibus Crime Control and
Safe Streets Act of 1968: Provided further,'' after
``Provided,''.
stop domestic violence now
Mr. KERRY. Mr. President, this amendment continues the successful
COPS ``Community Policing to Combat Domestic Violence'' Program. Police
departments currently use these COPS funds for domestic violence
training and support. This amendment would allow local law enforcement
agencies to renew their grant funding so they can continue to employ
innovative community policing strategies to combat domestic violence.
Mr. President, domestic violence is a very serious national problem.
Almost four million American women were physically abused by their
husbands or boyfriends in the last year alone. A woman is physically
abused every 9 seconds in the United States. Women are victims of
domestic violence more often than they are victims of burglary,
muggings, and all other physical crimes combined. In fact, 42 percent
of women who are murdered are killed by their intimate male partners.
In Massachusetts, 33 women were killed in domestic related cases in
1995. This
[[Page S8065]]
amendment is necessary to fight this epidemic of domestic violence.
Mr. President, this problem of domestic violence affects all classes
and all races. More than one in three Americans have witnessed an
incident of domestic violence according to a recent nationwide survey
released by the Family Violence Prevention Fund. Mr. President,
battering accounts for one-fifth of all medical visits by women and
one-third of all emergency room visits by women in the U.S. each year.
As Dartmouth, MA, Police Chief Stephen Soares said recently, domestic
violence ``goes from the lowest economic planes to the highest in terms
of professional persons. There isn't a line drawn in terms of
profession or money.''
Domestic violence hurts women and hurts our economy. The Bureau of
National Affairs estimates that domestic violence costs employers
between $3 billion and $5 billion each year in lost work time and
decreased productivity. In a recent survey of senior business
executives, 49 percent said that domestic violence has a harmful effect
on their company's productivity. Forty-seven percent said domestic
violence negatively affects attendance and 44 percent said domestic
violence increases health care costs.
Mr. President, domestic violence also has tragic effects on children.
Children who witness the violence often do poorly in school, repeat the
pattern of either victim or abuser as adults, and are more prone to
have a variety of emotional problems.
According to Linda Aguiar, the head of ``Our Sisters' Place'' in Fall
River, Massachusetts, ``One child that was at the shelter, we found out
he had taken knives from the kitchen and hid them in the bedroom. He
did this because he was afraid his father would come. He thought his
father would come and put a ladder to the window.''
To attempt to deal with these problems, Congress in the 1994 Crime
Act provided that up to 15 percent of the funding for the COPS program
could be made available for innovative community policing activities. A
small part of that money, $47 million, was made available to police
departments for domestic violence training and support. I would like to
read excerpts from a letter I received from the Chief of Police of
Chelmsford, MA, about the COPS Domestic Violence program. He said, ``It
has come to my attention that the federal grant entitled `Community
Oriented Policing Services Combating Domestic Violence' '' (COPS) has
not been approved--As you know, domestic violence is a serious law
enforcement and societal problem that we are just beginning to face.
Every year, millions of women are abused and hundreds are murdered by
members of their own family. It's time that society began viewing these
atrocities as a crime. We must put forward the necessary attention and
funding to solve this problem. The COPS grant does exactly that. It
provides advocacy, training, and research toward ending this problem.
Without this funding victims of domestic abuse and police officers will
have nowhere to turn for support, education, resources and training.''
Mr. President, the COPS Domestic Violence Program has been a success.
In Massachusetts, police departments have used the money to fund many
anti-domestic violence activities:
The Gardner Police Department and a local battered women's resource
center were able to establish school-based support groups for children
affected by violence in their homes. More than 250 children ages 5-10
have benefited from this program.
In Somerville, nearly 100 city police officers and an equal number of
representatives of local non-profit service agencies received anti-
domestic violence training. As a result, a young woman who appeared in
the Emergency Room seeking assistance for domestic violence was
referred to a nurse supervisor who helped her get a restraining order,
safety planning, and other support.
Officers in the Domestic Violence Unit of the Fall River Police
Department, in coordination with a local battered women's and
children's shelter, have been able to conduct personal follow-up in
more than 1,100 incidents of domestic violence since September of 1996.
Mr. President, before these funds were available, many local law
enforcement agencies lacked the resources to provide anti-domestic
violence training and support. In 1995 prior to the awarding of the
COPS domestic violence grant, police in Gardner, MA were called to
intervene in a dispute involving domestic abuse. Due to the lack of
cooperation from the victim, officers did not have sufficient evidence
to arrest her boyfriend, but instead were only able to escort him off
the property. Two hours after the incident, the victim's boyfriend
returned to the property and set it afire, and the woman was killed by
asphyxiation. Subsequent to this crime the suspect was arrested,
convicted of the crime with which he was charged and sentenced to time
in prison. This incident demonstrated the need for a victim's advocate
employed by the police department who might have been able to convince
the woman of her need for help and then intervene on her behalf. Due to
the COPS Domestic Violence grants, the Gardner Police Department now
has the resources to more successfully combat domestic violence.
When the Department of Justice announced these Community Policing to
Combat Domestic Violence grants on June 1, 1996, police departments
were promised 1 year of funding with the ability to receive two
additional years of funding. Unfortunately, these successful Domestic
Violence programs will be denied the additional 2 years of funding
because of a little-noticed change, included in the appropriations bill
report language, which no longer allows up to 15 percent of COPS funds
to be used for innovative community policing activities such as anti-
domestic violence training and support for local law enforcement
agencies.
Our amendment earmarks $47 million of the $503 million provided by
the Commerce/State/Justice Appropriation bill for the Local Law
Enforcement Block Grant (LLEBG) to renew funding of grants made under
the COPS Domestic Violence Program. It is appropriate that this money
be earmarked for this purpose because the Local Law Enforcement Block
Grant Program was designed to provide funds to local governments to
fund crime reduction and public safety improvements broadly defined.
Additionally, the LLEBG already contains several earmarks in the C/S/J
Appropriations bill: $2.4 million for discretionary grants for local
law enforcement to form specialized cyber units to prevent child sexual
exploitation, and $20 million for the Boys and Girls Clubs.
Some will argue that this appropriations bill increases funding for
the Violence Against Women Act (VAWA) and that therefore no additional
funds are needed to confront domestic violence. However, that is
incorrect for three reasons. First, the increase in funding for the
Violence Against Women Act is only $15 million, far less than the $47
million needed to renew the COPS Domestic Violence grants. Second, only
25 percent of the VAWA money goes to police departments--most of the
rest goes to prosecution and direct victims services. Third, most of
the VAWA money for police departments goes to buy equipment, not for
training and support.
Mr. President, this funding is necessary to help police departments
to deal with the epidemic of domestic violence. I would like to thank
Senators Dodd, Lautenberg, and Johnson for joining me in proposing this
important amendment and urge all my colleagues to support it.
Mr. DODD. Mr. President, I rise to support the amendment of my
colleague, the Senator from Massachusetts [Mr. Kerry]. This amendment
will restore the COPS antidomestic violence grants created by the
Violence Against Women Act--a program of vital importance that funds
local police and community initiatives to combat domestic violence.
Domestic violence is a serious scourge on our society. Once every 9
seconds, a woman is beaten by her husband or boyfriend, according to
FBI crime statistics. Four women are killed each day at the hands of
their domestic attackers, according to the National Clearinghouse for
the Defense of Battered Women. And 16 people were killed by family
violence in Connecticut between September 1995 and September 1996. That
is totally unacceptable.
Mr. President, for quite some time I have been extremely concerned
that
[[Page S8066]]
antidomestic violence programs currently funded through domestic
violence COPS grants will no longer have a source of funding as the
COPS grants for this purpose are eliminated.
For too long before Congress enacted the 1994 crime law and Violence
Against Women Act, domestic violence was considered a private matter--
something to be dealt with inside the home, and outside of public view
and public policy. The Violence Against Women Act represented a
consensus that government and our communities should work together to
prevent and stop domestic violence, and that it should be one of our
highest priorities.
In Connecticut, many communities were able to rise to that challenge
when they received anti-domestic violence grants under the COPS
program. More than ten Connecticut cites and towns have used these
grants to establish law enforcement infrastructures to support a
diverse range of anti-domestic violence programs, each specifically
tailored to the needs of that local community. I recently had the
opportunity to visit with two police chiefs who are using anti-domestic
violence COPS grants to run domestic violence prevention and
intervention programs in Bridgeport, CT, and Groton, CT. They have
developed different programs that make use of a wide range of resources
to fight domestic violence, utilizing police officers, involving
victims' shelters and services, incorporating counseling for both
victims and batterers, and aggressively pursuing prosecution of
batterers.
Programs like these send a message from our communities to victims
and batterers alike. These programs say that domestic violence has no
place in Connecticut or anywhere in our country. These programs say
that if you are a batterer, we will stop you, we will catch you, and we
will prosecute you to the fullest extent of the law. And I am told by
police chiefs throughout Connecticut that that is why these programs,
and the funds that make them possible, have truly improved their
ability to combat domestic violence. Domestic violence is preventable,
if we provide the funding for initiatives to stop it.
Now, however, the elimination of antidomestic violence COPS grants
threatens to force an untimely end to successful programs like those in
Connecticut. Law enforcement officials would be hindered in their
effort to prevent domestic violence and catch and punish perpetrators,
and victims of domestic violence would continue to suffer. Let's not
abandon police chiefs when they've just begun to win the battle against
domestic violence. Let's not turn our backs on the victims who need our
help.
I wrote to the Commerce-State-Justice appropriators to ask them to
maintain the funding for these important programs, and I am pleased
today to cosponsor the amendment that would do just that. Hundreds of
police chiefs and countless victims across the country are counting on
us to do no less.
I thank the Senator from Massachusetts for his amendment, and I join
him in urging my colleagues to adopt it.
Mr. LOTT addressed the Chair.
The PRESIDING OFFICER. The majority leader.
Unanimous-Consent Agreement
Mr. LOTT. Mr. President, I thank the Senator from Massachusetts for
finishing expeditiously and for his help on a number of issues
throughout the day as we try to get an agreement on how we can proceed
for the remainder of the day, and when we can get votes tomorrow and
next week.
Mr. President, I ask unanimous consent that the following be the only
remaining first-degree amendments in order to S. 1022, and they be
subject to relevant second-degree amendments.
Mr. President, I will submit the list since there are several of
them. But everybody has been consulted on this list. The Democratic
leadership is aware of it as well as the Members on this side.
I ask unanimous consent that the list be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
democratic amendments to commerce-state-justice
Baucus, EDA.
Biden, COPS.
Biden, trust fund.
Bingaman, registration of nonprofits.
Bumpers, OMB.
Byrd, anti-alcohol.
Conrad, relevant.
Daschle, law enforcement.
Dorgan, sense of Senate--Univ. Service Fund.
Dorgan, NII grants.
Graham, public safety officers.
Harkin, funding for globe.
Inouye, Ninth circuit--northern territories.
Kennedy/Leahy, capital murder.
Kerry, COPS.
Lautenberg, PTO.
Reed, SoS telecom slamming.
Robb, public safety grants.
Sarbanes, Sec. 408 pending No. 989.
Wellstone, Legal Services Corp.
Wellstone, Legal Services Corp.
Harkin, private relief.
Hollings, managers.
Hollings, managers.
republic amendments to state-justice-commerce
Domenici, court appointed attorney's fees.
Hatch, DOJ LEG. AFFAIRS.
Burns, Mansfield fellowships.
McCain, INS inoculations.
Stevens, Cable laying.
Hatch, Limitation of funds for Under Secretary of Commerce.
DeWine, Visas.
Helms, Technical.
Warner, Terrorism.
Coverdell, DNA testing/sex offenders.
Bond, small business.
Warner, patent trademark.
Kyl, masters.
Abraham, INS fingerprinting.
Stevens, womens World Cup.
Coats, gambling impact.
McCain, relevant.
McCain, relevant.
Burns, EDA.
Hatch, antitrust provisions.
Gregg, relevant.
Hatch, local law enforcement.
Mr. LOTT. Mr. President, I further ask unanimous consent that all
amendments must be offered and debated tonight and any votes ordered
with respect to S. 1022 be postponed to occur beginning on 9:30 a.m. on
Tuesday, July 29, with 2 minutes for debate equally divided before each
vote, and following the disposition of amendments, S. 1022 be advanced
to third reading and a passage vote occur, all without further action
or debate.
I have more to this request, but I want to emphasize what that means.
We will complete all of the amendments tonight. The votes on those
amendments and final passage will occur next Tuesday beginning the
9:30.
I further ask that if the Senate has not received the House companion
bill at the time of passage of S. 1022, the bill remain at the desk;
and I further ask unanimous consent that when the Senate receives the
House companion bill, the Senate proceed to its immediate consideration
and all after the enacting clause be stricken and the text of S. 1022,
as amended, be inserted, the House bill then be read a third time and
passed and the Senate insist on its amendment, request a conference
with the House and that the Chair be authorized to appoint conferees
and that S. 1022 be indefinitely postponed.
The PRESIDING OFFICER. Is there objection?
Mr. SARBANES. Mr. President, reserving the right to object, in the
discussions with the chairman of the subcommittee, as I understand it,
the amendment that is pending at the desk will be adopted this evening.
Mr. LOTT. That is my understanding Mr. President.
Mr. HOLLINGS. That is correct.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. I further ask that at 8:30 a.m. on Tuesday the Senate
resume the State, Justice, Commerce appropriations bill and there be 30
minutes remaining, equally divided, for debate on each of the two
amendments to be offered by Senator Wellstone.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. I further ask that it be in order, if necessary, for each
leader to offer one relevant amendment on Tuesday prior to the
scheduled 9:30 votes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. With regard to the tuna-dolphin issue, I ask unanimous
consent that, at 9:30 a.m. on Friday, July 25, the Senate resume the
motion to proceed to S. 39, the tuna-dolphin bill, and there be 30
minutes equally divided between Senator McCain, or his designee, and
Senator Boxer. I further ask unanimous consent that following the use
or yielding back of the time, the Senate proceed to the vote on the
motion to invoke cloture on the motion to proceed to S. 39.
[[Page S8067]]
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. Mr. President, I further ask that if an agreement can be
reached with respect to S. 39--and it appears there may be--it be in
order for the majority leader to vitiate the cloture vote, the Senate
to then immediately proceed to S. 39, that the managers' amendment be
in order, and the amendment and bill be limited to a total of 30
minutes equally divided, and following the disposition of the amendment
the bill be advanced to third reading, and passage occur, all without
further action or debate.
I think I should clarify this and put it in common language.
If an agreement is worked out, we will vitiate the cloture vote. I
would like to modify that agreement to say that, if an agreement is
reached, we will vitiate; then we will take that issue up next week
with 30 minutes of debate and a vote next week, unless a voice vote
would be agreed to for tomorrow or next week.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. With regard to Wednesday of next week, I ask unanimous
consent that at 9:30 a.m., Wednesday, July 30, the Senate proceed to
the consideration of Senate Resolution 98. I further ask unanimous
consent that there be 2 hours of debate on the resolution equally
divided between the chairman and the ranking member, or their
designees, with the following amendments in order to this bill.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. LOTT. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. Mr. President, I realize it gets a little confusing on how
we are lining these up. But I think it is being helpful to all
Senators. I think it is allowing us to complete the debate and get
votes and move important legislation forward in the best way possible.
So the way we are getting it racked up, so to speak, I think is good
for the Senate, and we are trying to do the right thing.
So I would like to modify that earlier request to this extent:
That we come in in the morning and go immediately at 9:30 to the
global-warming bill. That bill is Senate Resolution 98. I ask consent
that there be 2 hours of debate on the resolution equally divided
between the chairman and the ranking member or their designees with the
only amendments in order to be the following: Kerry amendment adding
specific negotiating positions; Senator Byrd's amendment, relevant.
I further ask unanimous consent that following the disposition of the
above-mentioned amendments and the expiration or yielding back of time
for debate, the Senate proceed to a vote on the resolution with no
intervening action or debate, and, if the resolution is agreed to, the
preamble then be agreed to, which means that the final vote on global
warming would occur around 11:30 tomorrow morning.
Mr. KERRY. Mr. President, reserving the right to object--I will not
object--I simply ask the majority leader if he would modify that
further, per our agreement, that they would be first-degree amendments
with no second-degree amendments.
Mr. LOTT. Mr. President, I ask to further modify my unanimous-consent
request.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. Then the modification of what we had earlier agreed to is
that after that vote on Senate Resolution 98, we would then have the
vote on the cloture motion on tuna-dolphin unless an agreement is
worked out, at which point we would vitiate that cloture vote, and we
would get a subsequent time agreement of 30 minutes and a voice vote,
or a recorded vote, on that issue next week.
Mrs. BOXER. Reserving the right to object, and I shall not object--
The PRESIDING OFFICER. The Senator from California.
Mrs. BOXER. The leader did not say exactly what time the cloture vote
would take place.
Mr. LOTT. The cloture vote would then take place, after the global
warming vote, I presume about 11:45, 11:50, something of that nature.
Mrs. BOXER. Could we say by 12 o'clock?
Mr. LOTT. It certainly would be by 12 o'clock.
Mrs. BOXER. That would be very helpful. One more point. If there
should be a recorded vote, which many of us do not anticipate, on the
dolphin-tuna compromise, if there is one, could we reserve just a
couple of minutes on either side just to talk before that vote, on next
week, just 2 minutes?
Mr. LOTT. Before the vote next week.
Mrs. BOXER. Yes.
Mr. LOTT. Sure. I would hate to enter into a time agreement on a
specific time now but we would have a vote at an agreed to time and we
would have some time to explain it. I think it is appropriate.
Mr. KERRY. It is my understanding the majority leader in the prior
order already requested 30 minutes.
Mr. LOTT. I had indicated 30 minutes.
Mrs. BOXER. That is very acceptable. Thank you very much. And I
wanted to thank the Senator from Arizona as well for helping resolve
this procedure.
Mr. LOTT. Mr. President, I thank the Senators for their cooperation.
Let us keep going then. I think we are making good progress.
I ask unanimous consent that at 5 o'clock on Monday, July 28, the
Senate proceed to the consideration of the Transportation
appropriations bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LOTT. For the information of all Senators, any votes ordered with
respect to the Transportation appropriations bill will be postponed to
occur on Wednesday morning immediately following the global warming
resolution vote.
We have changed that now. The Transportation appropriations bill
would occur on Wednesday morning.
Mr. FORD. I liked the first one better.
Mr. LOTT. Therefore, no votes will occur during the session on
Monday, July 28.
Mr. President, I will yield the floor at this point and in a few
minutes we will recap everything we agreed to in those unanimous-
consent agreements so that they will be clear and understandable. We
will do that before we go out tonight.
I yield the floor.
Mr. SARBANES addressed the Chair.
The PRESIDING OFFICER. The Senator from Maryland.
Amendment No. 989
Mr. SARBANES. Mr. President, is the Sarbanes amendment now the
pending business?
The PRESIDING OFFICER. The Sarbanes amendment is now the pending
business.
Mr. SARBANES. I ask unanimous consent that Senators Moynihan, Hatch,
Jeffords, Kerry, Biden, and Leahy be added as cosponsors.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SARBANES. I hope we could move to adoption of the amendment.
Mr. GREGG. I hope the Senator would ask for adoption.
Mr. HOLLINGS. The question is on the adoption of the amendment.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 989) was agreed to.
Mr. SARBANES. Mr. President, I move to reconsider the vote.
Mr. HOLLINGS. I move to lay that motion on the table.
Mr. GRAHAM addressed the Chair.
The PRESIDING OFFICER. The Senator from Florida.
Amendment No. 993
(Purpose: To make an Amendment Relating to the Health Insurance
Benefits of Certain Public Safety Officers)
Mr. GRAHAM. Mr. President, at the completion of these brief remarks,
I will send an amendment to the desk.
Mr. President, last year in consideration of this same appropriations
bill, the Senate and the House adopted and the President signed into
law what is known as the Alu-O'Hara bill. This is legislation which was
the result of a tragic circumstance in which two law enforcement
officers called to a hostage-taking scene were seriously
[[Page S8068]]
burned when the hostage taker set on fire the structure in which the
hostages were being held. These two law enforcement officers were
subsequently discharged from the law enforcement agency because of
their severe injuries, and in the course of their discharge they lost
their insurance coverage. So now they were two heroes out of work,
lifetime injuries and without health insurance.
This Alu-O'Hara bill, which we adopted last year, provided that law
enforcement agencies would provide to any public service officer ``who
retires or is separated from service due to an injury suffered as the
direct and proximate result of a personal injury sustained in line of
duty while responding to an emergency situation or in hot pursuit with
the same or better level of health insurance benefits that are
otherwise paid by the entity to a public service officer at the time of
retirement or separation.'' The enforcement for this was a reduction in
that local law enforcement block grant award.
Mr. President, as I indicate, this has been the law since last year.
It is currently in the House appropriations bill. Frankly, we are
seeking an opportunity to put this into substantive law so we will not
have to continue to rely upon the appropriations bill as the means of
continuing this important protection for law enforcement officers which
has strong support by all the major law enforcement agencies in
America.
So I send this amendment to the desk and will ask my colleagues for
its favorable adoption when we consider these matters on Tuesday.
The PRESIDING OFFICER. The clerk will report the amendment. The bill
clerk read as follows:
The Senator from Florida [Mr. Graham] proposes an amendment
numbered 993.
Mr. GRAHAM. 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:
At the appropriate place in title I of the bill, insert the
following:
Sec. 1. Of the amounts made available under this title
under the heading ``OFFICE OF JUSTICE PROGRAMS'' under the
subheading ``state and local law enforcement assistance'',
not more than 90 percent of the amount otherwise to be
awarded to an entity under the Local Law Enforcement Block
Grant Program shall be made available to that entity, if it
is made known to the Federal official having authority to
obligate or expend such amounts that the entity employs a
public safety officer (as that term is defined in section
1204 of title I of the Omnibus Crime Control and Safe Streets
Act of 1968) does not provide an employee who is public
safety officer and who retires or is separated from service
due to injury suffered as the direct and proximate result of
a personal injury sustained in the line of duty while
responding to an emergency situation or a hot pursuit (as
such terms are defined by State law) with the same or better
level of health insurance benefits that are otherwise paid by
the entity to a public safety officer at the time of
retirement or separation.
Mr. GREGG addressed the Chair.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. GREGG. We have no objection to this amendment and I ask unanimous
consent the amendment be accepted.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 993) was agreed to.
Mr. GRAHAM. Mr. President, I move to reconsider the vote.
Mr. HOLLINGS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. DORGAN addressed the Chair.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Mr. President, I have been working on a sense-of-the-
Senate resolution which I hoped to have the agreement of a number of
Members of the Senate who have similar interests on the issue of the
using universal service funds for the purpose of reaching a balanced
budget in the budget reconciliation conference that is now going on. I
know that sounds foreign as a subject to those who are not familiar
with it, but I want to explain it a little bit and describe why this is
important.
I have spoken to a number of Senators in the Chamber this evening--
Senator Stevens, the distinguished chairman of the Senate
Appropriations Committee, Senator Rockefeller, Senator Hollings,
Senator Daschle, Senator Snowe, and others who are concerned about
something that is happening in the reconciliation conference that could
have a significant impact on the cost of telephone service in rural
areas in this country in the years ahead. Here is what it is.
Our country has been fortunate to enjoy the benefits of a
telecommunications system that says it does not matter where you live.
If you live in an area where you have very high-cost service, there
will be something called a universal service fund that helps drive down
that high cost so that everyone in this country can afford telephone
service, universally affordable telephone service. That is what the
universal service fund is designed to do and has been designed to do
for a long, long while. I come from a town of 300 people and telephone
service there is affordable because the universal service fund drives
down the rate of what would otherwise be high cost. The benefits of a
national system is that every telephone in the country makes every
other telephone more valuable. A telephone in my hometown in Regent,
ND, makes Donald Trump's telephone more valuable in New York City
because he can reach that telephone in Regent, ND. That is the whole
concept of universally affordable telephone service, and it is why we
have a universal service fund.
Now, having said that, the universal service fund was reconstructed
some--but not dramatically--during the Telecommunications Act passed by
Congress a year and a half ago. We now have a balanced budget proposal
that is in conference between the House and the Senate and some are
saying in this negotiation that they want to use the revenues from the
universal service fund out in the year 2002 in order to help plug a
leak on the budget side.
The fact is the universal service fund was never intended to be used
for such a purpose. In fact, the universal service fund does not belong
to the Government. It does not come into the Federal Treasury and is
not expended by the Federal Government. It, therefore, ought not be a
part of any discussion on budget negotiations, and yet it is.
This week I have spoken several times to the Office of Management and
Budget, and they have explained to me in great detail with no clarity
at all why it is now part of this process. I have spoken to people who
claim to be experts on this, and none of them have the foggiest idea
about what the proposal actually does.
Now, the reason I come to the floor to speak about it is this: We are
nearing presumably the end of a conference, and if a conference report
comes to the floor of the Senate using the universal service fund as
part of a manipulated set of revenues in the year 2002, in order to
reach some sort of budget figure, it will be an enormous disservice for
the universal service fund. It will deny the purpose of the fund for
which we in the Commerce Committee worked so hard to preserve in the
Telecommunications Act of 1996. This provision in the reconciliation
bill will set a precedent that will be a terrible precedent for the
future. The result will be, I guarantee, higher phone bills in rural
areas in this country in the years ahead.
I once stopped at a hotel in Minneapolis, MN, and there was a sign at
the nearest parking space to the front door, and it said ``Manager's
parking space.'' And then below it, it said, ``Don't even think about
parking here.'' I don't expect anybody ever parked in that space
besides the manager. Don't even think about parking here. I hope that
the Senate will pass the sense-of-the-Senate resolution I have proposed
that says to the reconciliation conference: ``do not even think about
this.'' I say to the budget reconciliation conferees: ``do not try to
bring to the floor of the Senate or the House a budget reconciliation
conference report that manipulates and misuses the universal service
fund.'' It is not right, it is not fair, and it will destroy the
underpinnings of what we have done in telecommunications policy to
provide affordable telephone service across this country for all
Americans. Yes, especially, most especially Americans who live in the
rural areas of this country.
I have enormous respect for those people who put these budgets
together. It is not easy. But this instance of using the universal
service fund as is
[[Page S8069]]
now being proposed is, I am afraid, budget juggling at its worst.
Juggling I suppose at a carnival or in the backyard is entertaining.
Juggling in this circumstance using universal fund support to
manipulate the numbers in 2002 is not entertaining to me. It is
fundamentally wrong. This money does not belong to the Federal
Government. It does not come to the Federal Treasury, and it is not
spent by the Federal Government and has no place and no business in any
reconciliation conference report.
I was flabbergasted to learn that it was there and it is being
discussed. I have spoken to the Director of the Office of Management
and Budget about this several times this week, spoken to others who are
involved with it. And I must tell you I think that the Congressional
Budget Office, the Office of Management and Budget, and any member of
the conference that espouses this is making a terrible, terrible
mistake. I hope that the Senate will pass the sense-of-the-Senate
resolution I have proposed and that we can garner the support of the
position I now espouse to say as that parking sign, ``don't even think
about this.'' It is wrong, and it will disserve the interests that we
have fought so hard to preserve affordable telephone service all across
this country.
The Senator from South Carolina has spent a great deal of time on
this issue, as has the Senator from Alaska, the Senator from West
Virginia, the Senator from Maine, and so many others. As I said, the
wording is not yet agreed to on the sense-of-the-Senate resolution. I
hope it will be very shortly, and when it is I hope we will pass it and
send a message that any conference report that comes back here ought
not use universal service support funds because they are not our funds
to use.
Mr. President, I yield the floor.
Mr. DOMENICI addressed the Chair.
The PRESIDING OFFICER. The Senator from New Mexico.
Amendment No. 994
(Purpose: To amend section 3006A of title 18, United States Code, to
provide for the public disclosure of court appointed attorneys' fees
upon approval of such fees by the court)
Mr. DOMENICI. Mr. President, I have an amendment and I understand it
is going to be accepted. I will let the managers do that in their wrap-
up if they would like unless the Senator has indicated that it is all
right.
Mr. President, I ask, has Senator Hollings cleared it?
Mr. HOLLINGS. It has been cleared.
Mr. DOMENICI. I thank the Senator very much.
I send an amendment to the desk, and since it is acceptable on both
sides I ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New Mexico [Mr. Domenici] proposes an
amendment numbered 994.
Mr. DOMENICI. 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:
At the appropriate place in title I of the bill, insert the
following:
SEC. 1. PUBLIC DISCLOSURE OF COURT APPOINTED ATTORNEYS' FEES.
Section 3006A(d) of title 18, United States Code, is
amended by striking paragraph (4) and inserting the
following:
``(4) Disclosure of fees.--
``(A) In general.--Subject to subparagraphs (B) through
(E), the amounts paid under this subsection for services in
any case shall be made available to the public by the court
upon the court's approval of the payment.
``(B) Pre-trial or trial in progress.--If a trial is in
pre-trial status or still in progress and after considering
the defendant's interests as set forth in subparagraph (D),
the court shall--
``(i) redact any detailed information on the payment
voucher provided by defense counsel to justify the expenses
to the court; and
``(ii) make public only the amounts approved for payment to
defense counsel by dividing those amounts into the following
categories:
``(I) Arraignment and or plea.
``(II) Bail and detention hearings.
``(III) Motions.
``(IV) Hearings.
``(V) Interviews and conferences.
``(VI) Obtaining and reviewing records.
``(VII) Legal research and brief writing.
``(VIII) Travel time.
``(IX) Investigative work.
``(X) Experts.
``(XI) Trial and appeals.
``(XII) Other.
``(C) Trial completed.--
``(i) In general.--If a request for payment is not
submitted until after the completion of the trial and subject
to consideration of the defendant's interests as set forth in
subparagraph (D), the court shall make available to the
public an unredacted copy of the expense voucher.
``(ii) Protection of the rights of the defendant.--If the
court determines that defendant's interests as set forth in
subparagraph (D) require a limited disclosure, the court
shall disclose amounts as provided in subparagraph (B).
``(D) Considerations.--The interests referred to in
subparagraphs (B) and (C) are--
``(i) to protect any person's 5th amendment right against
self-incrimination;
``(ii) to protect the defendant's 6th amendment rights to
effective assistance of counsel;
``(iii) the defendant's attorney-client privilege;
``(iv) the work product privilege of the defendant's
counsel;
``(v) the safety of any person; and
``(vi) any other interest that justice may require.
``(E) Notice.--The court shall provide reasonable notice of
disclosure to the counsel of the defendant prior to the
approval of the payments in order to allow the counsel to
request redaction based on the considerations set forth in
subparagraph (D). Upon completion of the trial, the court
shall release unredacted copies of the vouchers provided by
defense counsel to justify the expenses to the court. If
there is an appeal, the court shall not release unredacted
copies of the vouchers provided by defense counsel to justify
the expenses to the court until such time as the appeals
process is completed, unless the court determines that none
of the defendant's interests set forth in subparagraph (D)
will be compromised.''.
Mr. DOMENICI. Mr. President, I am not sure, if I were to ask every
Senator to take a guess, anyone would come anywhere close to answering
this question correctly.
I ask, how many dollars do you think we spent last year paying for
defense lawyers for criminals in the Federal court who claim they don't
have enough money to defend themselves?
We have an obligation. The court has interpreted our Constitution to
say they must have counsel, so I am not here complaining. But I don't
think anyone--I see my friend from Iowa looking at me--would guess $308
million, and growing tremendously, taxpayers' dollars to defend
criminals in the Federal court system.
I am not asking in this amendment that we review that process,
although I kind of cry out to any committee that has jurisdiction and
ask them to take a look. All I am doing in this amendment is changing
the law slightly with reference to letting the taxpayer know how much
we are paying criminal defense lawyers. All this amendment does is say
when a payment is made to a criminal defense lawyer, a form has to be
filed that indicates that payment. There is no violation of the sixth
amendment because there are no details. We are not going to, in this
statement, reveal the secret strategy of the defense counsel or their
latest deposition theory. We are just saying, reveal the dollar amount
so the American people know, through public sources, how much we are
paying.
Frankly, if I had a little more time, I would state some of the fees
that we finally have ascertained, and I think many would say, ``Are you
kidding?'' I will just give you three that we know of.
Mr. President, what would you say if I told you that from the
beginning of fiscal year 1996 through January 1997, $472,841 was paid
to a lawyer to defend a person accused of a crime so heinous that the
United States Attorney in the Northern District of New York is pursuing
the death penalty? Who paid for this lawyer--the American taxpayer.
What would you say if I told you that $470,968 was paid to a lawyer
to defend a person accused of a crime so reprehensible that, there too,
the United States Attorney in the Southern District of Florida is also
pursuing the death penalty? Who paid for this lawyer--the American
taxpayer.
What would you say if I told you that during the same period, for the
same purpose, $443,683 was paid to another attorney to defend a person
accused of a crime so villainous that the United States Attorney in the
Northern District of New York is pursuing the death penalty? Who paid
for this lawyer--the American taxpayer.
Now, Mr. President, what would you say if I told you that some of
these cases have been ongoing for three or more years and that total
fees in some
[[Page S8070]]
instances will be more than $1 million in an individual case? That's $1
million to pay criminal lawyers to defend people accused of the most
vicious types of murders often which are of the greatest interest to
the communities in which they were committed.
At minimum, Mr. President, this Senator would say that we are
spending a great deal of money on criminal defense lawyers and the
American taxpayer ought to have timely access to the information that
will tell them who is spending their money, and how it is being spent.
That is why today I am introducing the ``Disclosure of Court Appointed
Attorney's Fees and Taxpayer Right to Know Act of 1997''.
Under current law, the maximum amount payable for representation
before the United States Magistrate or the District Court, or both, is
limited to $3,500 for each lawyer in a case in which one or more
felonies are charged and $125 per hour per lawyer in death penalty
cases. Many Senators might ask, if that is so, why are these exorbitant
amounts being paid in the particular cases you mention? I say to my
colleagues the reason this happens is because under current law the
maximum amounts established by statute may be waived whenever the judge
certifies that the amount of the excess payment is necessary to provide
``fair compensation'' and the payment is approved by the Chief Judge on
the circuit. In addition, whatever is considered ``fair compensation''
at the $125 per hour per lawyer rate may also be approved at the
Judge's discretion.
Mr. President, the American taxpayer has a legitimate interest in
knowing what is being provided as ``fair compensation'' to defend
individuals charged with these dastardly crimes in our federal court
system. Especially when certain persons the American taxpayer is paying
for mock the American Justice System. A recent Nightline episode
reported that one of the people the American taxpayer is shelling out
their hard earned money to defend urinated in open court, in front of
the Judge, to demonstrate his feelings about the judge and the American
judicial system.
I want to be very clear about what exactly my bill would accomplish.
The question of whether these enormous fees should be paid for these
criminal lawyers is not, I repeat, is not a focus of my bill. In
keeping with my strongly held belief that the American taxpayer has a
legitimate interest in having timely access to this information, my
bill simply requires that at the time the court approves the payments
for these services, that the payments be publicly disclosed. Many
Senators are probably saying right now that this sounds like a very
reasonable request, and I think it is, but the problem is that often
times these payments are not disclosed until long after the trial has
been completed, and in some cases they may not be disclosed at all if
the remains are sealed by the Judge. How much criminal defense lawyers
are being paid should not be a secret. There is a way in which we can
protect the alleged criminal's sixth amendment rights and still honor
the American taxpayer's right to know. Mr. President, that is what my
bill does.
Current law basically leaves the question of when and whether court
appointed attorneys' fees should be disclosed at the discretion of the
Judge in which the particular case is being tried. My bill would take
some of that discretion away and require that disclosure occur once the
payment has been approved.
My bill continues to protect the defendant's sixth amendment right to
effective assistance of counsel, the defendant's attorney client
privilege, the work product immunity of defendant's counsel, the safety
of any witness, and any other interest that justice may require by
providing notice to defense counsel that this information will be
released, and allowing defense counsel, or the court on its own, to
redact any information contained on the payment voucher that might
compromise any of the aforementioned interests. That means that the
criminal lawyer can ask the Judge to take his big black marker and
black-out any information that might compromise these precious Sixth
Amendment rights, or the Judge can make this decision on his own. In
any case, the Judge will let the criminal lawyer know that this
information will be released and the criminal lawyer will have the
opportunity to request the Judge black-out any compromising information
from the payment voucher.
How would this occur? Under current law, criminal lawyers must fill
out Criminal Justice Act payment vouchers in order to receive payment
for services rendered. Mr. President, I have brought two charts to the
floor to provide Senators with an example of what these payment
vouchers look like so that they can get an understanding of what my
bill would accomplish. These two payment vouchers are the standard
vouchers used in the typical felony and death penalty cases prosecuted
in the federal district courts. As you can see Mr. President, the
information on these payment vouchers describes in barebones fashion
the nature of the work performed and the amount that is paid for each
category of service.
My bill says that once the Judge approves these payment vouchers that
they be publicly disclosed. That means that anyone can walk down to the
federal district court where the case is being tried and ask the clerk
of the court for copies of the relevant CJA payment vouchers. It's that
simple. Nothing more. Nothing less.
Before the court releases this information it will provide notice to
defense counsel that the information will be released, and either the
criminal lawyer, or the Judge on his/her own, may black-out any of the
barebones information on the payment voucher that might compromise the
alleged criminal's precious sixth amendment rights.
Mr. President, I believe that my bill is a modest step toward
assuring that the American taxpayer have timely access to this
information. In addition to these CJA payment vouchers, criminal
lawyers must also supply the court with detailed time sheets that
recount with extreme particularity the nature of the work performed.
These detailed time sheets break down the work performed by the
criminal lawyer to the minute. They name each and every person that was
interviewed, each and every phone call that was made, the subjects that
were discussed and the days and the times they took place. They go into
intimate detail about what was done to prepare briefs, conduct
investigations, and prepare for trial.
Mr. President, clearly if this information were subject to public
disclosure the alleged criminal's sixth amendment rights might be
compromised. My bill does not seek to make this sensitive information
subject to public disclosure, but rather continues to leave it to the
Judge to determine if and when it should be released. In this way, my
bill recognizes and preserves the delicate balance between the American
taxpayers' right to know how their money is being spent, and the
alleged criminal's right to a fair trial.
I believe we should take every reasonable step to protect any
disclosure that might compromise the alleged criminal's sixth amendment
rights. My bill does this by providing notice to defense counsel of the
release of the information, and providing the Judge with the authority
to black-out any of the barebones information contained on the payment
voucher if it might compromise any of the aforementioned interests. I
believe it is reasonable and fair, and I hope I will have my
colleagues' support.
I am very pleased the Senate will accept this. I hope the House does.
I believe they will. Because I think the public has a right to know. As
a matter of fact, I think we have a right to know, case by case,
payment by payment, how much is being paid by the taxpayer to defend
criminals in the Federal court.
I yield the floor.
THE PRESIDING OFFICER. If there be no further debate, the question is
on agreeing to the amendment.
The amendment (No. 994) was agreed to.
Mr. DOMENICI. Mr. President, I move to reconsider the vote.
Mr. GREGG. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 995
(Purpose: To Provide for the Payment of Special Masters, and for Other
Purposes)
Mr. GREGG. Mr. President, on behalf of Senator Kyl, I send an
amendment to the desk.
[[Page S8071]]
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New Hampshire [Mr. Gregg], for Mr. Kyl,
proposes an amendment numbered 995.
The amendment is as follows:
At the appropriate place, insert the following:
SEC. . SPECIAL MASTERS FOR CIVIL ACTIONS CONCERNING PRISON
CONDITIONS.
Section 3626(f) of title 18, United States Code, is
amended--
(1) by striking the subsection heading and inserting the
following:
``(f) Special Masters for Civil Actions Concerning Prison
Conditions.--''; and
(2) in paragraph (4)--
(A) by inserting ``(A)'' after ``(4)'';
(B) in subparagraph (A), as so designated, by adding at the
end the following: ``In no event shall a court require a
party to a civil action under this subsection to pay the
compensation, expenses, or costs of a special master.
Notwithstanding any other provision of law (including section
306 of the Act entitled `An Act making appropriations for the
Departments of Commerce, Justice, and State, the Judiciary,
and related agencies for the fiscal year ending September 30,
1997,' contained in section 101(a) of title I of division A
of the Act entitled `An Act making omnibus consolidated
appropriations for the fiscal year ending September 30, 1997'
(110 Stat. 3009-201)) and except as provided in subparagraph
(B), the requirement under the preceding sentence shall apply
to the compensation and payment of expenses or costs of a
special master for any action that is commenced, before, on,
or after the date of enactment of the Prison Litigation
Reform Act of 1995.''; and
(C) by adding at the end the following:
``(B) The payment requirements under subparagraph (A) shall
not apply to the payment to a special master who was
appointed before the date of enactment of the Prison
Litigation Reform Act of 1995 (110 Stat. 1321-165 et seq.) of
compensation, expenses, or costs relating to activities of
the special master under this subsection that were carried
out during the period beginning on the date of enactment of
the Prison Litigation Reform Act of 1995 and ending on the
date of enactment of this subparagraph.''.
Mr. GREGG. I move to set aside the amendment by Senator Kyl.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 996
(Purpose: To require the Attorney General to submit a report on the
feasibility of requiring convicted sex offenders to submit DNA samples
for law enforcement purposes)
Mr. GREGG. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New Hampshire [Mr. Gregg], for Mr.
Coverdell, proposes an amendment numbered 996.
Mr. GREGG. 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:
At the appropriate place in title I of the bill, insert the
following:
SEC. . REPORT ON COLLECTING DNA SAMPLES FROM SEX OFFENDERS.
(a) Definitions.--In this section--
(1) the terms ``criminal offense against a victim who is a
minor'', ``sexually violent offense'', and ``sexually violent
predator'' have the meanings given those terms in section
170101(a) of the Violent Crime Control and Law Enforcement
Act of 1994 (42 U.S.C. 14071(a)));
(2) the term ``DNA'' means deoxyri- bonucleic acid; and
(3) the term ``sex offender'' means an individual who--
(A) has been convicted in Federal court of--
(i) a criminal offense against a victim who is a minor; or
(ii) a sexually violent offense; or
(B) is a sexually violent predator.
(b) Report.--From amounts made available to the Department
of Justice under this title, not later than 180 days after
the date of enactment of this Act, the Attorney General shall
submit to Congress a report, which shall include a plan for
the implementation of a requirement that, prior to the
release (including probation, parole, or any other supervised
release) of any sex offender from Federal custody following a
conviction for a criminal offense against a victim who is a
minor or a sexually violent offense, the sex offender shall
provide a DNA sample to the appropriate law enforcement
agency for inclusion in a national law enforcement DNA
database.
(c) Plan Requirements.--The plan submitted under subsection
(b) shall include recommendations concerning--
(1) a system for--
(A) the collection of blood and saliva specimens from any
sex offender;
(B) the analysis of the collected blood and saliva
specimens for DNA and other genetic typing analysis; and
(C) making the DNA and other genetic typing information
available for law enforcement purposes only;
(2) guidelines for coordination with existing Federal and
State DNA and genetic typing information databases and for
Federal cooperation with State and local law in sharing this
information;
(3) addressing constitutional, privacy, and related
concerns in connection with mandatory submission of DNA
samples; and
(4) procedures and penalties for the prevention of improper
disclosure or dissemination of DNA or other genetic typing
information.
Mr. HOLLINGS addressed the Chair.
The PRESIDING OFFICER. The Senator from South Carolina.
Amendment No. 997
(Purpose: To Express the Sense of the Senate That the Federal
Government Should not Withhold Universal Service Support Payments)
Mr. HOLLINGS. On behalf of Senator Dorgan and others, I send an
amendment to the desk and ask the clerk to report.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from South Carolina [Mr. Hollings], for Mr.
Dorgan, for himself, Mr. Rockefeller, Mr. Hollings and Mr.
Daschle, proposes an amendment numbered 997.
Mr. HOLLINGS. 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:
At the appropriate place, insert the following:
SEC. . SENSE OF THE SENATE THAT THE FEDERAL GOVERNMENT
SHOULD NOT MANIPULATE UNIVERSAL SERVICE SUPPORT
PAYMENTS TO BALANCE THE FEDERAL BUDGET.
Whereas the Congress reaffirmed the importance of universal
service support for telecommunications services by passing
the Telecommunications Act of 1996;
Whereas the Telecommunications Act of 1996 required the
Federal Communications Commission to preserve and advance
universal service based on the following principles:
(A) Quality services should be available at just,
reasonable, and affordable rates;
(B) Access to advanced telecommunications and information
services should be provided in all regions of the Nation;
(C) Consumers in all regions of the Nation, including low-
income consumers and those in rural, insular, and high cost
areas, should have access to telecommunications and
information services, including interexchange services and
advanced telecommunications and information services, that
are reasonably comparable to those services provided in urban
areas and that are available at rates that are reasonably
comparable to rates charged for similar services;
(D) All providers of telecommunications services should
make an equitable and nondiscriminatory contribution to the
preservation and advancement of universal service;
(E) There should be specific, predictable, and sufficient
Federal and State mechanisms to preserve and advance
universal service; and
(F) Elementary and secondary schools and classrooms, health
care providers, and libraries should have access to advanced
telecommunications services;
Whereas Federal and State universal contributions are
administered by an independent, non-Federal entity and are
not deposited into the Federal Treasury and therefore not
available for Federal appropriations;
Whereas the Conference Committee on H.R. 2015, the Budget
Reconciliation Bill, is considering proposals that would
withhold Federal and State universal service funds in the
year 2002; and
Whereas the withholding of billions of dollars of universal
service support payments will mean significant rate increases
in rural and high cost areas and will deny qualifying
schools, libraries, and rural health facilities discounts
directed under the Telecommunications Act of 1996:
Now, therefore, be it
Resolved, That it is the sense of the Senate that the
Conference Committee on H.R. 2015 should not manipulate,
modify, or impair universal service support as a means to
achieve a balanced Federal budget or achieve Federal budget
savings.
Amendment No. 998
Mr. HOLLINGS. Mr. President, I also, on behalf of the distinguished
Senator from Delaware, Senator Biden, send an amendment to the desk and
ask the clerk to report it.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from South Carolina [Mr. Hollings], for Mr.
Biden, proposes an amendment numbered 998.
Mr. HOLLINGS. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S8072]]
The amendment is as follows:
At the appropriate place, insert the following:
SEC. . EXTENSION OF VIOLENT CRIME REDUCTION TRUST FUND.
Section 310001(b) of the Violent Crime Control and Law
Enforcement Act of 1994 (42 U.S.C. 14211(b)) is amended--
(1) in paragraph (5), by striking ``and'' at the end;
(2) in paragraph (6), by striking the period at the end and
inserting a semicolon; and
(3) by adding at the end the following:
``(7) for fiscal year 2001, $4,355,000,000; and
``(8) for fiscal year 2002, $4,455,000,000.''.
Beginning on the date of enactment of this legislation, the
non-defense discretionary spending limits contained in
Section 201 of H.Con Res. (105th Congress) are reduced as
follows:
for fiscal year 2001, $4,355,000,000 in new budget
authority and $5,936,000,000 in outlays;
for fiscal year 2002, $4,455,000,000 in new budget
authority and $4,485,000,000 in outlays.
Mr. HOLLINGS. Mr. President, I 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. ROCKEFELLER. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. Mr. President, the junior Senator from West Virginia
wishes to continue, a little bit, the comments that were made by the
Senator from North Dakota [Mr. Dorgan]. Needless to say, the Senator
from West Virginia not only wholly agrees with him, but would carry the
argument even further.
The concept of universal service is literally sacred in our country.
For the majority of the people of our land, which is rural land, it is
the only lifeline they have potentially to the present day and to their
future day. They are able to afford certain kinds of rural rates. But
if people start to take the universal service fund and use it for any
other purpose other than what it was originally intended, the whole
system of equality between rural States and urban States, of user
States and using States, disappears. The concept of universal service
is ended.
I would like to suggest that this is not a thought which is held by
myself alone. I ask at this moment to have printed in the Record a
letter from the U.S. Telephone Association and a letter from the Rural
Telephone Coalition on the subject that the Senator from North Dakota
and I were discussing.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
United States
Telephone Association,
Washington, DC, July 9, 1997.
Hon. Byron L. Dorgan,
U.S. Senate,
Washington, DC.
Dear Senator Dorgan: The United States Telephone
Association (``USTA''), representing more than 1,200
companies, is dismayed that Congress has chosen universal
telephone service as a vehicle to balance the budget by the
year 2002. While USTA recognizes the endeavors of key leaders
in rejecting spectrum fees and other inappropriate budget
proposals, exploiting the universal telephone service fund to
balance the budget is not only bad precedent, it is bad
telecommunications policy. Accordingly, USTA strenuously
urges you to oppose this proposal in conference.
In its effort to meet the budget accord, the U.S. House of
Representatives adopted a reconciliation package that
maneuvers universal telephone service support moneys to
satisfy current budgetary objectives. To make up for a $2
billion budget shortfall, the House's proposal borrows $2
billion in FY 2001 while artificially reducing universal
telephone service support by this same amount in FY 2002.
This proposal needlessly jeopardizes a privately run support
system that continues to work without federal monetary aid.
Moreover, such a ``scoring'' device sets a dangerous
precedent that could damage this nation's universal telephone
service policy necessary to maintain nationwide, affordable
telecommunications service.
USTA has opposed the Office of Management and Budget and
the Congressional Budget Office for more than two years over
their claims of authority to reflect universal telephone
service transactions on the federal budget. The
Telecommunications Act clearly establishes the manner in
which universal telephone service funds are collected and
disbursed. Pursuant to the Act, universal telephone service
moneys logically should not be classified as either federal
receipts or federal disbursements and thus should not be
associated with the federal budget, as the Administration has
insisted and Congress has allowed.
USTA appreciates your continued support regarding the
elimination of such budget proposals as the imposition of
spectrum fees. Similarly, USTA strongly urges you to reject
any proposals that would seek to balance the budget at the
expense of universal telephone service. We hope we can count
on you to help keep such initiatives out of the final
conferenced agreement.
Sincerely,
Roy Neel,
President and CEO.
____
NRTA--NTCA--OPASTCO,
Rural Telephone Coalition,
Washington, DC, July 10, 1997.
Dear Senator/Representative: The undersigned collectively
representing approximately 850 of the nation's small rural
incumbent local exchange carriers, have been closely
following the struggle of the Congress to develop a
reconciliation package that meets the targets assigned by the
recent budget accord. Although we understand the difficult
nature of this task, we applaud the efforts of key leaders
who have prevented the adoption of many of the more
unrealistic and unjustified concepts for meeting the
agreement's targets. These concepts include auctioning
electromagnetic radio spectrum at all costs, imposing new
electromagnetic radio spectrum fees and auctioning toll-free
``vanity'' numbers.
However, we are alarmed that the U.S. House of
Representatives, in its last-minute effort to achieve the
budget agreement's targets, adopted a reconciliation package
containing language that manipulates universal service
support moneys to do so. Universal telecommunications service
is a national policy objective, but the moneys that are
involved in effectuating this policy are strictly private,
not governmental as the House initiative attempts to suggest.
The House provision seeks to create the illusion that the
U.S. government should somehow have access to these private
universal service moneys for the sole purpose of balancing
the budget.
Specifically, in attempting to make up for a $2 billion
budget shortfall, the U.S. House of Representatives has
adopted a reconciliation package that uses universal service
support moneys to meet its present budget objectives and even
seems to suggest that a totally unnecessary appropriation is
involved. This proposal borrows $2 billion in fiscal year
(FY) 2001 while artificially reducing universal service
support by this same amount in FY 2002--budget gimmickry
Congress should reject. This proposal unnecessarily
jeopardizes a privately run support system that continues to
work without federal monetary aid. Such a misleading
``scoring'' device sets a dangerous precedent that could
permanently damage the nation's statutory universal service
policy and budget process.
Our organizations have opposed the Office of Management and
Budget (OMB) and the Congressional Budget Office (CBO) for
more than two years over their claims of authority to reflect
universal service transactions on the federal budget.
Universal service flow transactions represent the collection
and distribution of private moneys, for the sole purpose of
recovering private investment and expenses necessary to
maintain nationwide universal telecommunications service.
Therefore, universal service moneys logically cannot be
classified as either federal receipts or federal
disbursements and thus legally should not be associated with
the federal budget, as the administration has insisted and
the Congress has allowed.
We are pleased that Congress rejected spectrum fees and
other inappropriate proposals that had the sole intent of
meeting budgetary targets. However, manipulation of universal
service moneys to look like U.S. government resources is not
only bad precedent, but also had telecommunications policy.
Any measure embracing such a proposal should be strenuously
opposed. We hope we can count on your support to keep such
initiatives out of the final conferenced reconciliation
package. Please feel free to contact any one of our
organizations if you have questions about this critical
matter.
Sincerely,
John F. O'Neal,
General Counsel, National Rural Telecom Association.
Michael E. Brunner,
Executive Vice President and Chief Executive Officer,
National Telephone Cooperative Association.
John N. Rose,
President, Organization for the Promotion and Advancement
of Small Telecommunications Companies.
Mr. ROCKEFELLER. There is another aspect which worries me greatly. I
have heard so many people talk about the importance of technology and
the importance of understanding that technology is our future and the
fact that so many of the people in our rural areas and in our urban
areas are not hooked up to the Internet and hooked up to all of the
advantages that technology and the computer brings us. It was with that
in mind that during the consideration of the Telecommunications Act, a
number of Senators, led
[[Page S8073]]
by Senator Snowe of Maine, put forward an amendment which would allow,
for the very first time, money to be used with the full consent of the
carriers, to be used to wire up 116,000 schools in this country,
endless numbers of public libraries, enormous numbers of rural health
clinics so that they could develop in the practice of telemedicine and
other new technologies that are now and will be available.
If what is being contemplated by those who are working on the
reconciliation process is the use of universal service money to plug up
a potential shortfall in the spectrum auction, the entire Snowe
amendment, which relates to whether or not we are going to have a
first- or second-class citizenry in this country --first-class being
those who have the money to have computers in their schools and at home
and then the second class, and that being the majority, being those who
do not--all of that will go down.
I make the further point that this is not the Government's money.
Some may try to argue that it is, but it is money that is paid into a
special fund and it is money which is being administered by something
called NECA, which is the ``national exchange cable association''--I
believe that is what it stands for. They are private. They are private.
They are a private entity administering this fund.
This has been through a Senate process where it was agreed to in a
bipartisan debate, 98 to 1. It has been through a joint board, FCC
process, that is State and FCC together, voting 8 to nothing, and
through a further final FCC process, 4 to nothing--unanimous, virtually
the entire way through.
If the budget negotiators use this universal service fund for any
purpose other than for the purposes that the universal service fund is
meant to be used for, I think it begins a tremendous downfall in not
only our future in terms of rural rates, but also in terms of learning
and technology. The Vice President of the United States, our former
colleague, Albert Gore, said that in his view the Snowe amendment,
relating to 116,000 schools, more public libraries and more rural
health clinics, was the biggest and most important thing that had
happened in education policy in the last 30 years. He may have said, in
this century.
In any event, all of that is in jeopardy, and the resolution, which
is being circulated, I hope will be carried by staff members and others
who hear the voice of the Senator from North Dakota and myself, to
their Senators to know that something called universal service is in
dire jeopardy as of this moment, because the tampering with that
universal service is now in the bill that may come before us. There has
to be a change made. Change is hard to come by. In other words, we
really are at the ramparts on this issue.
I thank the Presiding Officer and I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, NECA is the National Exchange Carriers
Association. Mr. President, this association was formed at the breakup
of AT&T back in 1984, and it is a private entity, whereby the different
carriers, through their trade associations, self-impose, in an
intermittent fashion, the amounts due and owing in order to constitute
what we call the universal service fund. It is a private entity. There
is no Federal law that says you can be a member or shall be a member or
you cannot be a member. It is not under the Federal law; it is under
this particular entity that it was associated with and together at that
particular time of the breakup.
It depends on the volume of business, obviously. If you get a greater
volume and more burdens and so forth--for high-cost areas is really
what it was for, initially. It is now being extended to rural, being
extended for the schools and the hospitals. But the high-cost areas are
being taken care of under this universal service fund.
Mr. President, what we are seeing here--and I hope the conferees on
reconciliation get the message--this is the epitome of the national
loot. In 1994, this Congress passed, President Clinton signed into law
the Pension Reform Act. Under that Pension Reform Act, it provided
certain penalties, whereby you can't loot the pension funds of the
particular corporate America. They wanted to make sure that a person in
this particular corporation who had worked over the years and
everything else, didn't have a newcomer in a merger or buyout or
whatever it is, abscond with all the moneys and all of a sudden your
pension was gone.
Now, it so happens that in the news here, about 6 weeks ago, now 8
weeks ago, that a famous American, Denny McLain, the all-time all-star
pitcher, I think it was, for the Detroit Tigers, became a president of
the corporation and he used the corporate pension fund in violation of
law to pay the company's debt, and he was promptly sentenced to an 8-
year jail sentence. We do it at the Federal level and get the good
Government award.
We loot the Social Security pension fund, the Medicare trust fund,
the civil service pension trust fund, the military retirees' trust
fund. They even had in the reconciliation bill --and I put in an
amendment--the looting of the airport and airways improvement fund,
whereby the moneys that are supposed to go to the improvement of the
airways instead is going to the deficit.
Now the cabal, the conspiracy that they call a conference committee
has the unmitigated gall to provide as follows, and I read:
The Senate recedes to the House with modifications.
3006 of this title provides that expenditures from the
universal service fund under part 54 of the Commission's
rules for the fiscal year 2002 shall not exceed the amount of
revenue to be collected for that fiscal year, less [blank]
billion dollars.
Section 3006(B) further provides that any outlays not made
from the universal service fund in fiscal year 2002 under
subsection (A) are immediately available commencing October
1, 2002.
The conferees note that this subsection shall not be
construed to require the amount of revenues collected under
part 54 of the Commission's rules to be increased.
What in the world, how else is it going to be done? If you take the
amount of the funds necessary to keep universal service constant, less
X billion dollars or million dollars, whatever, that they want to fit
in here for a budget fix, then the companies and the associations
through their companies that make the contributions are going to have
to immediately either cut out the service under the service fund and
the rules and regulations of the entity that controls it or raise the
rates, and then the politicians will all run around saying, ``I'm
against taxes, I'm against rate increases,'' when they are causing it
in a shameful, shameless way in this particular provision and not even
put in the amount. They have a blank here, and they are going to fill
in the amount, and it is another smoke and another mirror and another
loot.
Oh, yes, wonderful. We pass overwhelmingly the Pension Reform Act to
make sure that it is a trust and it can be depended upon, and here, in
the very same Congress, we come around and we loot all the particular
funds, and now we find a private one. Maybe they will get the Brownback
fund before they get through, if they can find it, and add that to it,
too. They can get anybody's fund and put something down in black and
white and they say, ``Oh, what good boys we are. We put in our thumb
and pulled out a plum, and we balance the budget.''
Turn to page 4 on the conference report on a so-called balance budget
agreement and report for the 5-year period terminating fiscal year
2002, and on page 4, line 15, the word is not ``balance,'' the word is
``deficit,'' $173.9 billion deficit.
Yet, the print media--I am glad this is on C-SPAN so the people
within the sound of my voice can at least hear it, because they are not
going to print it--the media goes along with the loot, and then they
wonder why the budget is not balanced. If we only level with the
American people, they would understand you can't cut taxes without
increasing taxes.
We have increased the debt with that particular shenanigan to the
tune now of $5.4 trillion with interest costs on the national debt of
$1 billion a day. So when you cut down more revenues to pay, you
increase the debt, you increase the interest costs, so you get
reelected next year, because I stood for tax cuts, but they won't tell
them that with the child tax cut that they have actually increased the
tax for the child. Now that is at least in the Congressional Record in
black and white.
I yield the floor.
[[Page S8074]]
Mr. DOMENICI. Mr. President, I rise in support of S. 1022, the
Commerce, Justice, State, and the Judiciary appropriations bill for
fiscal year 1998. The Senate bill provides $31.6 billion in budget
authority and $21.2 billion in new outlays to operate the programs of
the Department of Commerce, Department of Justice, Department of State,
the Judiciary and Related Agencies for fiscal year 1998. When outlays
from prior-year budget authority and other completed actions are taken
into account, the bill totals $31.6 billion in budget authority and
$29.4 billion in outlays for fiscal year 1998. The subcommittee is
within its revised section 602(b) allocation for budget authority and
outlays.
Mr. President, I commend the distinguished subcommittee chairman,
Senator Gregg, for bringing this bill to the floor. It is not easy to
balance the competing program requirements that are funded in this
bill. I thank the chairman for the consideration he gave to issues I
brought before the subcommittee, and his extra effort to address the
items in the bipartisan balanced budget agreement. It has been a
pleasure to serve on the subcommittee.
Mr. President, I ask unanimous consent that a table displaying the
Budget Committee scoring of this bill be printed in the Record at this
point.
There being no objection, the table was ordered to be printed in the
Record, as follows:
S. 1022, COMMERCE-JUSTICE APPROPRIATIONS, 1998; SPENDING COMPARISONS--SENATE-REPORTED BILL
[Fiscal year 1998, in millions of dollars]
----------------------------------------------------------------------------------------------------------------
Defense Nondefense Crime Mandatory Total
----------------------------------------------------------------------------------------------------------------
Senate-Reported bill:
Budget authority......................................... 275 25,587 5,225 522 31,609
Outlays.................................................. 322 25,188 3,381 532 29,423
Senate 602(b) allocation:
Budget authority......................................... 297 25,588 5,225 522 31,632
Outlays.................................................. 322 25,479 3,401 532 29,734
President's request:
Budget authority......................................... 257 26,114 5,238 522 32,131
Outlays.................................................. 286 25,907 3,423 532 30,148
House-passed bill:
Budget authority.........................................
Outlays..................................................
SENATE-REPORTED BILL COMPARED TO:
Senate 602(b) allocation:
Budget authority......................................... (22) (1) ........ ......... (23)
Outlays.................................................. ........ (291) (20) ......... (311)
President's request:
Budget authority......................................... 18 (527) (13) ......... (522)
Outlays.................................................. 36 (719) (42) ......... (725)
House-passed bill:
Budget authority......................................... 275 25,587 5,225 522 31,334
Outlays.................................................. 322 25,188 3,381 532 29,423
----------------------------------------------------------------------------------------------------------------
Note.--Details may not add to totals due to rounding. Totals adjusted for consistency with current scorekeeping
conventions.
carbon monoxide violations
Mr. MURKOWSKI. Mr. President, as we consider funding for the
Environmental Protection Agency, I would like to raise the issue of
Clean Air Act carbon monoxide violations in my home town of Fairbanks
with the chairman of the Environment and Public Works Committee,
Senator Chafee.
As the chairman knows, Fairbanks has one of the highest rates of
temperature inversions in the world. When such inversions occur,
pollutants from any source in the area are trapped at extremely low
altitudes. For example, it is not uncommon to see the smoke from house
chimneys trapped directly above a house rather than disbursed in the
atmosphere as in other cities nationwide.
While I would have preferred that the EPA not go forward with a bump-
up on the rating of Fairbanks' air from moderate to serious, I
recognize that this bill is not the place to accomplish that goal. I
would like to point out that in the past 20 years, Fairbanks has
reduced its violation days from 160 to as low as 1 last year. It is
these last violations that are causing difficulties for communities
nationwide. However, Fairbanks may never be able to prevent several
violations per year due to its unique and extreme cold weather. It is
my hope that the EPA would work with Fairbanks to develop strategies to
mitigate the pollution that is so severely magnified by the extreme
cold weather of my hometown.
Mr. STEVENS. I want to reiterate the concerns expressed by my
colleague, Senator Murkowski. The reality may be that no matter what
Fairbanks does, it may never be able to comply with EPA standards
because of its geographic location.
Mr. CHAFEE. I thank the Senators from Alaska for their remarks about
carbon monoxide violations in Fairbanks. Their hometown has
dramatically reduced the number of exceedences over the past 20 years
and should be recognized for this success. It is my hope that the EPA
will continue to work with Fairbanks to devise pollution reduction
strategies that recognize the unique conditions that exist in
Fairbanks.
Mr. MURKOWSKI: I thank my friend from Rhode Island.
office of the u.s. trade representative
Mr. CHAFEE. Mr. President, I want to take a moment to discuss one
provision in the legislation now before the Senate. Under the heading
of Related Agencies, the Commerce-State-Justice appropriations bill
provides funding for the Office of the U.S. Trade Representative.
As my colleagues know, our Nation's Special Trade Representative,
backed by the team of staff at USTR, is responsible for negotiating and
administering trade agreements and coordinating overall trade policy
for the United States. Those are significant responsibilities, and they
are critical to the economic interests of American firms, workers,
consumers, and families.
For an agency with such significant duties, USTR does not consume
much in the way of taxpayer monies. Annual funding for USTR has hovered
at just over $20 million for the past 5 years. In terms of the Federal
budget--or for that matter of the several other agencies funded by this
bill--$20 million is a mere pittance.
I might say that for what we get in return, the funds spent on USTR
represent quite a bargain. Thanks to USTR, we have in place trade
agreements and policies that allow our companies to compete
successfully worldwide. And where barriers remain, the USTR team works
continuously to make further progress. Their work over the years has
affected billions of dollars in U.S. trade and contributes enormously
to the health of the overall U.S. economy.
Now, USTR does not require much in funding because for the most part,
appropriations are spent on two items: salaries and travel. Those basic
necessities--the salaries that pay the staff, and the travel that is
required for the various ongoing negotiations with our trading partners
around the world--make up the bulk of USTR's financial needs. There is
not much fat there. Therefore, every dime they get is critical.
I want to commend the chairman of the Commerce-State-Justice
Subcommittee for allocating the full budget request for USTR for fiscal
year 1998. Under his bill, the Office of the USTR will receive
$22,092,000, exactly what the administration sought. I want to thank
him for that.
Let me raise one concern, however, that I know is shared by
the leadership and most members of the Senate Finance Committee. Since
the January 1995 implementation of the Uruguay round agreements and the
WTO, USTR has taken on an enormous new docket of cases in which the
United States is involved, and all of these cases now come with strict
deadlines. As of July 1, there were pending some 47 WTO or NAFTA cases
in which the United States is a plaintiff, a defendant, or otherwise a
participant. That is quite a workload. Yet despite the increase, USTR
has not increased its career legal staff. The number of lawyers and
litigators now on staff is virtually the same as in the pre-WTO days.
USTR has just 12 lawyers in Washington, with 2 more in Geneva, and only
2 of them are able to devote themselves fulltime to the international
litigation. That dearth of staff makes no sense--and only hurts our
efforts to win our cases.
I believe USTR must have the resources and personnel that it needs to
fulfill its responsibilities. While I am delighted that USTR received
its full budget request, I must say that the budget request amount is
simply not realistic for an agency facing these new assignments. Even a
modest increase of, say, $1 million--which again, in terms of the
federal budget is not even visible--would make a significant and
positive difference to the ability of USTR to carry out its work. And
that in turn would only benefit US workers and families, and the
overall US economy.
I want to urge USTR to press the Office of Management and Budget to
recognize their new workload. I have mentioned this repeatedly to
Ambassador Barshefsky and I hope she will act on it. And I want to
exhort OMB in the strongest terms possible to adjust next year's budget
request accordingly for
[[Page S8075]]
USTR. I am confident that such an adjustment would be met with favor by
the members of the authorizing committee, namely the Senate Finance
Committee.
If OMB fails to act, then it may fall to Congress to do the right
thing, and make the small but necessary increased investment in this
agency. Indeed, I seriously considered taking such a step during
today's debate. But for now I will wait. Thanks to the good work of the
chairman, we do have in this bill $22 million in full funding for USTR,
and I intend to do what I can to make sure that that full $22 million
becomes law. However, I call upon the administration in no uncertain
terms to ensure that in the budget submitted next year, USTR is
provided the resources they need.
Mr. McCAIN. Mr. President, I am happy to say that, after reviewing
the bill before the Senate, I find relatively few examples of pork-
barrel spending. I stress, relatively few, since I can still find a few
objectionable provisions in the bill and many in the report. But there
are far fewer problems with this bill than the last few appropriations
bills we have passed in the Senate.
This bill contains the usual earmarks for centers of excellence. In
particular, bill earmarks $22 million for the East-West Center in
Hawaii and $3 million for the North/South Center in Florida.
These amounts represent a combined increase of $16.5 million above
the administration's request.
Last week, I spoke about the problem of Congress establishing, at
taxpayer expense, centers for the study of virtually every subject,
irrespective of the availability of research and analysis on those
issues already available from existing universities and private
research institutions.
This enormous increase in funding for the East-West and North/South
Centers is incomprehensible given the dire state of U.S. diplomatic
representation in many of the newly independent countries of the post-
cold-war world. They are particularly inexplicable in light of the
committee's decision to zero out the funding for the National Endowment
for Democracy, a decision which the Senate fortunately reversed earlier
today.
Mr. President, I would not be at all surprised to see in next year's
bill funding for a North-by-Northwest Center, perhaps to include a
banquet room honoring the last Alfred Hitchcock.
The bill also contains language that directs the U.S. Marshals
Service to provide a magnetometer and not less than one qualified guard
at each entrance to the Federal facility located at 625 Silver, S.W.,
in Albuquerque, NM. I must say that this is perhaps the most specific
earmark I have ever seen, even providing an address to ensure the
assets are delivered to the proper beneficiaries.
Once again, though, the Appropriations Committee has contributed a
few new and innovative ways to earmark port-barrel spending.
The most interesting is language that I will call a reverse earmark.
The report earmarks $8 million to begin addressing the backlog in
repair and maintenance of FBI-owned facilities, other than those
located in and around Washington, DC and Quantico, VA. I wonder whether
my colleagues from this area were aware that they had been singled out
for exclusion from an earmark.
Other report language earmarks are more typical, such as: Various
earmarks for southwest border activities, although I note that my
colleagues singled out the New Mexico and Texas borders for special
attention to combat illegal border crossing and drug smuggling
problems. I was of the impression that these problems were prevalent
across the entire border with Mexico, including Arizona and California.
Similarly, the report requires that two-thirds of the additional
1,000 border patrol agents are to be deployed in Texas sectors, with
the remaining 300-plus agencies to be scattered across New Mexico,
Arizona, or California. The report earmarks $1 million for Nova
Southeastern University in Florida for the establishment of a National
Coral Reef Institute to conduct research on, what else, coral reefs.
And it also earmarks $1 million to the University of Hawaii to conduct
similar coral reef studies. I suppose this might be considered a good
idea to fund competitive research projects, except these institutions
did not have to compete to get these funds, nor will they likely have
to compete to continue to receive hand-outs to continue their coral
reef research.
The report contains $410,000 for the Alaska Eskimo Whaling
Commission, and $200,000 for the Beluga Whale Commission. It contains
$2.3 million to reduce tsunami risks to residents and visitors in
Oregon, Washington, California, Hawaii, and Alaska. And it earmarks $88
million in NOAA construction funds for specific locations in Alaska,
Hawaii, South Carolina, Mississippi, and other States.
And finally, this bill contains earmarks for assistance to the U.S.
Olympic Committee to prepare for the 2002 Winter Olympics in Utah. I
found $3 million for communications and security infrastructure
upgrades, $2 million to formulate a public safety master plan, and
language directing that NTIA provide telecommunications support to the
Utah Olympics similar to that provided in Atlanta last summer. As my
colleagues know, this is just a small portion of the funding we will
see channeled to the Utah Olympics. It is in addition to the money
included in the supplemental passed earlier this year and in other
appropriations bills that have already passed this body.
While the wasteful spending in this bill is less onerous than in
other bills I have seen in the past 2 weeks, I still have to object
strenuously to the inclusion of these earmarks and add-ons in the bill.
We cannot afford pork-barrel spending, even the amount contained in
this bill.
I ask unanimous consent that a list of the objectionable provisions
in this bill be printed in the Record.
There being no objection, the list was ordered to be printed in the
Record, as follows:
Objectionable Provisions in S. 1022 FY 1998 Commerce/Justice/State/
Judiciary Appropriations Bill
bill language
Earmarks for funding for the National Advocacy Center in
Columbia, South Carolina, which was authorized in 1993 as a
center for training federal, state, and local prosecutors and
litigators in advocacy skills and management of legal
operations: $2.5 million for operations, salaries, and
expenses of the Center, $2.1 million to support the National
District Attorney's Association participation in legal
education training at the Center.
U.S. Marshals Service is directed to provide ``a
magnetometer and not less than one qualified guard'' at each
entrance to a federal facility (including both buildings and
related grounds) at 625 Silver, S.W., in Albuquerque, New
Mexico
$125,000 of State Department Diplomatic and Consular
Programs funding earmarked for the Maui Pacific Center
$22 million of USIA funds earmarked for the Center for
Cultural and Technical Interchange between East and West in
the State of Hawaii, and $3 million for an educational
institution in Florida known as the North/South Center
Section 606 prohibits construction, repair, or overhaul of
vessels for the National Oceanic and Atmospheric
Administration in shipyards outside the U.S.
report language
Department of Justice:
Various earmarks for Southwest Border activities,
including: $281,000 for a Southwest Border initiative; $11.4
million for Southwest Border control; $29.7 million and the
direction to allocate additional necessary resources to
address border crossing and drug smuggling problems along the
New Mexico and Texas borders; $39.3 million in construction
and engineering funds for facilities at 29 specific locations
along the Southwest Border
Earmark of not less than $468,000 of the U.S. Marshals
Service funding for witness security New York metro
inspectors
Earmark of $700,000 for acquisition and installation of
video conferencing equipment in jails and courthouses in New
York, Illinois, Utah, Colorado, Nevada, Washington, and sites
to be determined in New Mexico and Texas after consultation
with the Appropriations Committee
Language urging the FBI to favorably consider the FBI
Center in West Virginia as the location for a new training
program on the investigative use of computers, for which $1
million was earmarked
$1.5 million to maintain an independent program office
dedicated solely to the relocation of the Criminal Justice
Information Services Division and automation of fingerprint
identification services
Increase of $8 million to begin addressing the backlog in
repair and maintenance of FBI-owned facilities, other than
those located in and around Washington, D.C. and Quantico,
Virginia
Earmarks of a portion of the increased funding and
positions for identification, apprehension, detention, and
deportation of illegal aliens, as follows: $48.3 million for
additional detention capacity, including 300 beds in New
York, 300 bed in Florida, and 400 beds
[[Page S8076]]
in California facilities; $5 million for the Law Enforcement
Support Center and expanded services of the Center in Utah.
Directive to deploy not less than two-thirds of the 1,000
new border patrol agents in the Mafa, Del Rio, Laredo, and
McAllen sectors in Texas
Earmarks of increased funding for inspection activities
for: Full-time manning of three in-transit lounges at Miami
International Airport; $4 million for dedicated commuter
lanes, including equipment and facilities, at Laredo,
Hidalgo, and El Paso, Texas, and Nogales, Arizona; $1.7
million to staff three new airports in Oregon, California,
and Nova Scotia; $700,000 for automated permit ports in
Maine, Vermont, New York, Montana, Washington, Alaska, and
New York; $1.5 million for automated I-94 equipment at
airports in New York, Newark, Seattle, San Francisco, Los
Angeles, Honolulu, Chicago, Philadelphia, Miami, and Boston.
Earmark for activation of new and expanded prison
facilities in Texas, California, Mississippi, South Carolina,
Arkansas, Texas, West Virginia, Washington, and Ohio
Language urging the Bureau of Prisons to favorably consider
development of MDTV at the Beckley Federal prison facility
$1 million equally divided between Mount Pleasant and
Charleston, South Carolina police departments for computer
enhancements and equipment upgrades
$3 million for the Utah Communications Agency to support
security and communications infrastructure upgrades to
counter potential terrorism threats at the 2002 Winter
Olympic Games, and $2 million to allow the Law Enforcement
Coordinating Council for the 2002 Olympics to develop and
support a public safety master plan
$2 million as a grant to establish a Public Training Center
for First Responders at Fort McClellan, Alabama
$3.85 million for the National White Collar Crime Center in
Richmond, Virginia
Earmarks of Violent Crime Reduction Trust Fund dollars for:
$190,000 for the Gospel Rescue Ministries of Washington, D.C.
to renovate the Fulton Hotel as a drug treatment center; $2
million for the Marshall University Forensic Science Program;
$2 million for a rural states management information system
demonstration project in Alaska; $500,000 for the Alaska
Native Justice Center; $1 million for the Santee-Lynches
Regional Council of Governments Local Law Enforcement
Program; $10 million for North Carolina Criminal Justice
Information Network for automation and security equipment; $1
million for the National Judicial College; Language urging
funding for the New Orleans-based Project Return and Chicago-
based Family Violence Intervention Program
$2 million for Southwest Surety Institute at New Mexico
State University
$1 million for a public-private partnership demonstration
project in Las Vegas, Nevada, for a home for victims of
domestic abuse
Language directing funding to complete design of the
Choctaw Indian tribal detention facility in Mississippi
Language expressing the expectation that the National
Center for Forensic Science at the University of Central
Florida will be provided a grant for DNA identification work,
if warranted
$850,000 of juvenile justice grants for the Vermont
Department of Social and Rehabilitation Services to establish
a national model for youth justice boards.
$1 million for the New Mexico prevention project.
$200,000 for the State of Alaska for a study on child abuse
and criminal behavior linkage.
$1.75 million for the Shelby County, Tennessee, Juvenile
Offender Transition Program.
Direction to examine proposals and provide grants, if
warranted, to the following entities: Hill Renaissance
Partnership, Lincoln Council on Alcoholism and Drugs,
Hamilton Fish National Institute on School and Community
Violence, Low Country Children's Center, and Comprehensive
Juvenile Justice Crime Prevention and Juvenile Assessment
Center in Gainesville, Florida.
department of commerce
Language urging the Economic Development Administration to
consider applications for grants for: Defense conversion
project at University of Colorado Health Sciences Center in
Aurora, Colorado; Passenger terminal and control tower at
Bowling Green/Warren County, Kentucky, regional airport;
Jackson Falls Heritage Riverpark in Nashua, New Hampshire;
Bristol Bay Native Association; Redevelopment of abandoned
property in Newark, New Jersey; Pacific Science Center in
Seattle, Washington; Rodale Center at Cedar Crest College in
Lehigh Valley, Pennsylvania; Minority labor force initiative
in South Carolina; Cumbres and Toltec Scenic Railroad
Commission in Arriba County, New Mexico, and Conejos County,
Colorado; Fore River Shipyard in Quincy, Massachusetts;
Native American manufacturer's network in Montana; National
Canal Museum in Easton, Pennsylvania; Cranston Street Armory
in Providence, Rhode Island.
Recommendation that Little Rock, Arkansas, Minority
Business Development Center remain in operation.
Recommendation that Jonesboro-Paraground, Arkansas,
Metropolitan Statistical Area be designated to include both
Craighead and Greene Counties.
Language urging the NTIA to consider grants to University
of Montana and Marshall University, West Virginia.
Language directing NTIA to fund telecommunications support
for the Olympic Committee Organization in Utah to ensure that
similar telecommunications facilities as were available at
the Atlanta Olympics
$500,000 earmarked for South Carolina geodetic survey
$300,000 earmarked for Galveston-Houston operation of
physical oceanographic real time system
$1.9 million earmarked for south Florida ecosystem
restoration, including $1 million for Nova Southeastern
University for establishment of a National Coral Reef
Institute to conduct research on coral reefs, and $1 million
for the University of Hawaii for similar coral reef studies
$450,000 for a cooperative agreement with the State of
South Carolina Department of Health and Environmental Control
to work on the Charleston Harbor project
Increase of $6.6 million above the request for the National
Estuarine Research Reserve System, which serves 22 sites in
18 states and Puerto Rico
$4.7 million for the Pacific fishery information network,
including $1.7 million for the Alaska network
Not less than $850,000, for the marine resources monitoring
assessment and prediction program of the South Carolina
Division of Marine Resources
$390,000 for the Chesapeake Bay resource collection program
$50,000 for Hawaiian monk seals
$500,000 for the Hawaii stock management plan
$300,000 for Alaska groundfish surveys and $5.5 million for
Alaska groundfish monitoring
$410,000 for the Alaska Eskimo Whaling Commission and
$200,000 for the Beluga Whale Committee
$1 million for research on Steller seals at the Alaska
SeaLife Center, $325,000 for similar work by the state of
Alaska, and $330,000 for work by the North Pacific
Universities Marine Mammal Consortium
$400,000 for the NMFS in Honolulu for Pacific swordfish
research
$250,000 to implementation of the state of Maine's recovery
plan for Atlantic salmon
$150,000 to the Alaska Fisheries Development Foundation
$200,000 for the Island Institute to develop multispecies
shellfish hatchery and nursery facility to benefit Gulf of
Maine communities
$3.8 million to develop a national resources center at
Mount Washington, New Hampshire, to demonstrate innovative
approaches using weather as the education link among
sciences, math, geography, and history
$500,000 for the ballast water demonstration in the
Chesapeake Bay
$2.3 million to reduce tsunami risks to residents and
visitors in Oregon, Washington, California, Hawaii, and
Alaska
$3 million increase, with total earmark of $15 million, for
the National Undersea Research Program, equally divided
between east and west coast research centers, with the west
coast funds equally divided between the Hawaii and Pacific
center and the West Coast and Polar Regions center
$1.7 million for the New England open ocean aquaculture
program
$1 million for the Susquehanna River basin flood system
$97,000 for the NOAA Cooperative Institute for Regional
Prediction at the University of Utah
$150,000 to maintain staff at Fort Smith, Arkansas, to
improve the ability of southern Indiana to receive weather
warnings
Earmarks of $88 million in NOAA construction funds for
specific locations in Alaska, Hawaii, South Carolina,
Mississippi, and others
department of state:
$22 million for East-West Center (increase of $15 million),
and $3 million for North/South Center (increase of $1.5
million)
small business administration:
Language stating SBA should consider funding a
demonstration in Vermont with the Northern New England
Tradeswoman, Inc.
The PRESIDING OFFICER. Who seeks recognition?
Mr. GREGG. Mr. President, I 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. GREGG. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
methamphetamine initiative
Mr. HATCH. Mr. President, I would like to thank the chairman of the
subcommittee for taking what I believe is a necessary and meaningful
step to turn the tide on a growing epidemic in this country,
methamphetamine abuse. Although originally confined principally to the
Southwest, including my home State of Utah, this epidemic is now moving
East. Congress needs to take action to stop meth abuse.
Mr. GREGG. I could not agree more with the Senator from Utah. In my
home State of New Hampshire, we are now experiencing our own influx of
methamphetamine. I am seriously concerned about the effect that the
proliferation of this drug is going to have
[[Page S8077]]
upon the children of this Nation, particularly in New Hampshire.
Mr. HATCH. Meth abuse, unfortunately, is also rapidly becoming one of
our top public health threats. According to the latest data released by
SAMHSA in its ``Drug Abuse Warning Network'' report released last week
the number of children aged 12 to 17 who have had to go to emergency
rooms due to meth use increased well over 200 percent between 1993 and
1995 alone. The number of deaths associated with meth has also
increased dramatically. From 1989 to 1994, methamphetamine accounted
for 80 percent or more of clandestine lab seizures by the DEA.
Clandestine lab crackdowns are at an alltime high, and many more are
going undetected. Mobile labs in rural areas of Utah, including
numerous locations in Ogden, Provo, and the St. George area are making
meth with virtual impunity. Local law enforcement does not have the
manpower, resources, or technical expertise to cover such vast areas in
a truly meaningful fashion. Federal law enforcement, most principally
the Drug Enforcement Administration, has agents specially trained in
the areas of methamphetamine lab take downs, but the number of such
specialists is extremely limited, and certainly is of insufficient
numbers to be any sort of meaningful presence in Utah, as well as the
rest of the Rocky Mountains.
I am deeply concerned about the Methamphetamine problem in Utah, as
well as the rest of the Nation. In my State, distribution by Mexican
traffickers has been expanded by using networks established in the
cocaine, heroin, and marijuana trades. Wholesale distribution is
typically organized into networks in major metropolitan areas, to
include Salt Lake City. Utah has 2,500 isolated noncontrolled airstrips
which provide a convenient means for drug smugglers to transfer
methamphetamine to vehicles for shipment throughout the United States.
Also, there are over 65 public airports throughout the State that are
not manned on a 24-hour basis, but can be lit from a plane by using the
plane's radio tuned to a specific frequency.
Major highway systems such as I-15, I-70, and I-80 serve to
interconnect Mexico with Colorado, Utah, and Wyoming which allows Utah
to be an ideal transshipment point to major markets on the west coast,
as well as Minneapolis, Chicago, Detroit, and other Midwestern areas.
It also results in such illegal drugs being readily accessible
throughout Utah.
According to the DEA, methamphetamine seizures nationwide in 1996
were the highest in over a decade. Not easily dissuaded, particularly
when such large profits can be made, Mexican traffickers have begun
obtaining the necessary precursor chemicals for methamphetamine from
sources in Europe, China, and India. These precursor chemicals needed
to manufacture methamphetamine drugs are available in Utah and have
contributed to the increased consumption of the drug. Further,
ephedrine tablets are purchased in large quantities and then converted
to methamphetamine.
For these reasons I believe that it is imperative that this Congress
provide the necessary resources to the DEA to engage in a meaningful
methamphetamine initiative. I fully support the Appropriations
Committee's report to S. 1022 that recommends that $16,500,000 of the
funds appropriated to the DEA be used to fund a methamphetamine
initiative, to include an additional 90 agents and 21 support personnel
who will be tasked with implementing a broad approach for attacking
methamphetamine abuse in this country. I strongly encourage that some
of these funds be applied to funding DEA agents with particularized
methamphetamine training be stationed in Utah to combat this ever
growing threat in my State, and to prevent the methamphetamine lab
activities in Utah from continuing to harm other States throughout this
Nation.
Mr. GREGG. It is my intention that these new agents be allocated
where they are most needed. Many States, such as New Hampshire and Utah
are certainly experiencing the level of increased meth abuse this meth
initiative is designed to address.
cooper hospital's trauma reduction initiative
Mr. LAUTENBERG. I would like to express my support for Cooper
Hospital's Trauma Reduction Initiative.
Cooper Hospital is located in Camden, NJ, one of the most troubled
cities in the Nation. Between 1994 and 1995, the number of violent
crimes declined 4 percent nationwide, while in Camden they rose 8.6
percent. Homicides in Camden rose 28.88 percent, while homicides
declined 6 percent nationally. With an estimated population of 82,000,
Camden ranks as the sixth most violent city in the country when
compared to all cities and towns.
Cooper Hospital's Trauma Reduction Initiative links hospital staff,
community leaders, and churches throughout Camden as the frontline of
crisis intervention. The Trauma Reduction Initiative represents a
community-based approach to deal with the types of violence that
disrupt our neighborhoods and burden our health care system.
According to Government research, by 2003, firearms will have
surpassed auto accidents as the leading cause of injury death in the
United States. But unlike victims of car accidents, who are almost
always privately insured, four out of five firearm victims are
receiving public assistance or are uninsured. Thus, taxpayers bear the
brunt of medical costs that have grown to $4.5 billion a year in the
past decade. Cooper Hospital's violence prevention program is designed
to help stop the spiral of violent crime and retaliation in Camden.
This program could serve as a model for other cities to follow.
The Trauma Reduction Initiative has received funding from the Bureau
of Justice Assistance. I ask my colleagues, the chairman and ranking
member of the Commerce, Justice, State Appropriations Subcommittee, if
they agree that the Trauma Reduction Initiative is worthy of BJA's
continued support?
Mr. GREGG. I appreciate the concerns of the Senator from New Jersey
about the disturbing amount of violent crime in Camden. I agree that,
within the available resources, the Trauma Reduction Initiative is
worthy of BJA's continued support.
Mr. HOLLINGS. I, too, share the concerns of the Senator from New
Jersey about the escalating costs of firearm violence in our country. I
agree with the chairman that, within the available resources, BJA
should continue to support the Trauma Reduction Initiative.
technical corrections
Mrs. FEINSTEIN. Mr. President, I would first like to thank the
chairman and ranking member of the Commerce, Justice, State, and the
Judiciary Appropriations Subcommittee for joining Senator Boxer and
myself in this colloquy regarding our amendment to make technical
corrections to title I, section 119 of the Commerce-State-Justice
appropriations bill. This section, as amended, will allow the
Department of Justice and the Federal Emergency Management Agency to
transfer surplus real property to State and local governments for law
enforcement, fire fighting, and rescue purposes.
Mrs. BOXER. Mr. President, I would like to join my colleague from
California in thanking the chairman and ranking member for all their
assistance on this issue. I would also like to extend our appreciation
to the chairman and ranking member of the Governmental Affairs
Committee, without whose suggestions this amendment would not have gone
forward. I am very pleased to cosponsor this amendment, which modifies
the amendment I offered in the Appropriations Committee to include the
Department of Justice Property Transfer Act.
Mr. GREGG. I thank my colleagues from California for their hard work
in including this language in the bill. We all know that the police and
fire departments are the first to respond to crises, and this change in
law will facilitate local agencies in obtaining surplus Federal
property for primary and specialized law enforcement and rescue
training. I am pleased to support this change in law for the benefit of
our communities.
Mr. HOLLINGS. I join my colleagues in recognizing the value of this
language. I would like to ask if the Senator from California knows of
any situations where this change in law would serve immediate benefit?
Mrs. FEINSTEIN. I would be pleased to answer that question. I was
first made aware of the problems that current property transfer laws
poses by the sheriff of Riverside County in southern California. The
sheriff's office
[[Page S8078]]
has obtained, by short-term lease, a portion of March Air Reserve Base.
The sheriff's office has been using this land for joint law enforcement
and fire and rescue training. This legislation will allow the sheriff's
office to apply directly to the General Services Administration, which
will coordinate the application and approval process with the
Department of Justice and FEMA to transfer the necessary property. Once
again, I thank my colleagues for their support of this legislation.
abusive and exploitative child labor
Mr. HARKIN. Mr. President, I would like to engage the chairman and
the ranking member of the Commerce, Justice, State, and the Judiciary
Subcommittee in a colloquy regarding abusive and exploitative child
labor.
According to the International Labor Organization [ILO], some 250
million children between the ages of 5 and 14 are working in developing
countries and the number is on the rise. I strongly believe that access
to primary education reduces the incidence of child labor around the
world. It is my understanding that the Asia Foundation supports efforts
to improve access to primary education.
I would like to see some language in the conference report urging the
Asia Foundation to continue its work in Pakistan. I know that our
staffs' have conferred, and that you and the ranking member share my
concern about abusive and exploitative child labor.
Mr. GREGG. I commend the Senator for his concern, and would welcome
any report language he has regarding the matter. Though it is outside
the scope of the conference, I will exploit any opportunity that
presents itself that would allow language to be inserted in the
conference report.
Mr. HOLLINGS. The Senator from Iowa has been working this issue hard,
and I agree with the chairman.
Ketchikan Shipyard
Mr. MURKOWSKI. Mr. President, Ketchikan, AK, just north of the
Canadian border in southeast Alaska, has recently suffered an extreme
economic blow due to changes in Federal forest management policies. It
is a town of just a few thousand people, and the loss of 406 jobs due
to the closure of one of the town's major industries, a pulpmill,
severely disrupted the community.
The need for economic revitalization in Ketchikan is great, but the
available opportunities are limited. One potentially important
opportunity is provided by a local shipyard, Ketchikan Ship and
Drydock. However, the ability of this yard to contribute to the local
economy is limited without a significant upgrade of its ability to
handle a variety of vessel sizes.
It is my understanding that the subcommittee report on this
appropriation recognizes similar situations in other areas by
suggesting that the Economic Development Administration consider
proposals which meet its procedures and guidelines.
Would the distinguished managers of the bill, my friends from New
Hampshire and South Carolina, agree that if the EDA receives a proposal
for the Ketchikan shipyard which meets its procedures and guidelines,
the EDA should consider that proposal and provide a grant if the latter
is warranted?
Mr. GREGG. Mr. President, the distinguished Senator from Alaska is
correct. I would urge the Economic Development Administration to
consider such a proposal that met its procedures and guidelines and
urge it to provide a grant if it finds the proposal warranted.
Mr. HOLLINGS. Mr. President, I agree with the response by my friend
from New Hampshire.
nist funding for texas tech university wind research
Mrs. HUTCHISON. Mr. President, I would like to ask the distinguished
Subcommittee Chairman, Senator Gregg, to engage in a colloquy on a
matter of extreme importance to my State and a number of others, and
that is the need for more research into wind and severe storm disasters
and ways to protect people and property from catastrophic harm.
Mr. GREGG. Mr. President, I would be happy to yield to the Senator
from Texas and engage in a colloquy.
Mrs. HUTCHISON. Mr. President, as you know, there have been a number
of severe tornadoes, wind storms, hurricanes and other wind-related
disasters in recent months which have killed scores of people and
destroyed communities. Earlier this year, the small town of Jarrell,
TX, experienced a tornado that killed 29 people, seriously injured many
others, and caused millions of dollars in damage to homes and
businesses. The President's home State of Arkansas was also hit by a
wind disaster that resulted in loss of life. The home State of the
Ranking Minority Member of the Subcommittee, Senator Hollings is still
rebuilding after the devastation of Hurricane Hugo in 1989.
Mr. President, there is important work being done at Texas Tech
University to help improve design construction of buildings to make
them more resilient to windstorms. The laboratory building will include
space to house a wind tunnel, a structural and building component
testing lab and a material testing lab. These laboratory facilities
will be used to develop innovative building frames and components that
are resilient to extreme winds and windborne debris and yet are
economically affordable. The research will also produce results to help
cope with the environmental effects of wind erosion and dust and
particulate generation.
The Department of Commerce, through the National Institute of
Standards and Technology, does wind research. NIST in particular is
engaged in research that complements the Texas Tech project.
The Committee has provided $276,852,000 for the scientific and
technical research and services (core programs) appropriation of NIST.
Part of the increased amount is for continued research, development,
application and demonstration of new building products, processes,
technologies and methods of construction for energy-efficient and
environmentally compatible buildings.
Senator Gregg, do you concur that it is the intent of the committee
to direct $3.8 million in funds provided to NIST for scientific and
technical research and services for cooperative research between NIST
and Texas Tech University to pursue this important wind research?
Mr. GREGG. It is the intent of the Committee to direct $3.8 million
of NIST's scientific and technical research and services funding
provided in the bill for cooperative research with Texas Tech
University. I look forward to working with the Senator from Texas to
ensure that the additional funds provided for core programs for
continued research, development, application and demonstration of new
building products, processes, technologies and methods of construction
supports cooperative wind research between NIST and Texas Tech
University.
small business development centers
Mr. CHAFEE. I wonder if I could get the attention of the
distinguished manager of the bill, Commerce, Justice, State
Appropriations Subcommittee Chairman Judd Gregg. I have a proposal
related to small business development centers, and I'd like to get him
to comment on it.
Mr. GREGG. I'd be happy to.
Mr. CHAFEE. I thank the Senator. What I propose to do is give more
SBDCs the tools they need to encourage small companies to start
exporting. As the Senator knows, the SBDCs are doing a terrific job
helping small business owners devise business plans, marketing
strategies, and so forth, but many of them simply don't have the
capacity to offer advice on how to export.
We ought to try to change that, in my view. Exporting is the name of
the game today--even for small businesses. And one way to do that would
be to broaden access to a successful small business export promotion
program called the International Trade Data Network, or ITDN.
Now, what is the ITDN? The ITDN is a computer-based service that
small business owners can use to retrieve a stunning amount of
international trade data--compiled both from Federal Government sources
and the private sector. With a few quick keystrokes, individuals can
read about everything from market demographics to descriptions of
upcoming trade missions to explanations of relevant export and import
regulations to potential contract leads. Small businesses anxious to
export can learn about virtually every industry and virtually every
country.
The ITDN was developed in 1988 by the Export Assistance Center at
Bryant College in Smithfield, RI, and it's
[[Page S8079]]
been a big help to literally hundreds of Rhode Island's small
businesses. In fact, 18 companies in Rhode Island use the ITDN every
single day.
Listen to some of these endorsements from Rhode Island business
owners. One said, ``The information made available through the ITDN is
an integral part of our Pre-Entry Level Market Analysis.'' Another
reported, ``I find the ITDN to be a state-of-the-art, user friendly
software that is a one-stop shop for international information. It is a
vital tool for businesses today that need to survive in a global
environment.''
But right now, only 30 or so of our 960 Small Business Development
Centers have direct access to the ITDN. So what I'd like to do is
expand the program, so that SBDCs all across the country are connected
to it. Specifically what I have in mind is converting the ITDN to an
internet-based website, and establishing an Interactive Video Trade
Conferencing Center at each State's lead small business assistance
office. My proposal would also make the ITDN technology available to
the Approximately 2,500 SBDC sub-centers across the country.
As I understand the situation, SBDCs are already authorized to
conduct export promotion activities under Section 21 of the Small
Business Act. In fact, representatives of Bryant College met with the
SBA's Associate Administrator for the SBDC program earlier this year to
discuss this proposal, and received a very positive response. For one
reason or another, however, the SBA has been reluctant to dedicate any
money to this purpose.
The 1988 Commerce, Justice, State Appropriation bill contains $75.8
million for the SBDC program, an increase of some $2.3 million over the
1997 funding level. In talking with the folks at the Export Assistance
Center at Bryant College, it's my understanding that expanding the ITDN
could be done over 2 years, with a first year cost of about $925,000.
I'd ask the distinguished manager if I could get his endorsement of my
proposal.
Mr. GREGG. I appreciate the Senator's interest in this matter, and I
agree that we ought to look for ways to increase American small
businesses' capacity to export.
Having looked at the Senator from Rhode Island's proposal, and
listened to his remarks, I think that the ITDN program could be an
excellent tool for opening international markets. I strongly encourage
the Small Business Administration to make funds available for the
expansion of the ITDN in fiscal year 1998.
Mr. CHAFEE. I want to thank my friend from New Hampshire for his
support for this initiative.
``made in the usa'' advertising
Mr. KOHL. I understand that the FTC has proposed to weaken the
standard for ``Made in the U.S.A.'' advertising from ``all to virtually
all'' U.S. content to ``substantially all'' U.S. content. The proposal
sets forth two alternative safe harbors for ``Made in the U.S.A.''
claims: 75 percent U.S. content--U.S. manufacturing costs represent 75
percent of the total manufacturing costs for the product and the
product was last substantially transformed in the U.S. or; two level
substantial transformation--The product was last substantially
transformed in the United States and all significant inputs were last
substantially transformed in the United States.
I also understand that the new proposed guidelines would have the
effect of allowing products made with 25 percent or more foreign labor
and foreign materials to be labeled ``Made in the U.S.A.'' In some
cases, the FTC's proposed guidelines would allow products made entirely
with foreign materials and foreign components to be labeled ``Made in
the U.S.A.''
The ``Made in the U.S.A.'' label, a time-honored symbol of American
pride and craftsmanship, is an extremely valuable asset to
manufacturers. Allowing this label to be applied to goods not wholly
made in America will encourage companies to ship U.S. jobs overseas
because they can take advantage of the cheaper labor markets while
promoting their products as ``Made in the U.S.A.'' For products not
wholly made in the U.S.A., companies already can make a truthful claim
about whatever U.S. content their products have--e.g., ``Made in the
U.S.A. of 75 percent U.S. component parts'' or ``Assembled in the
U.S.A. from imported and domestic parts''. However, if manufacturers
seek to voluntarily promote their products as ``Made in the U.S.A.''
they must be honest in that promotion and only apply the ``Made in the
U.S.A.'' label to products wholly made in the U.S.A.
Mr. GREGG. I am aware of the concerns expressed by my colleague on
the Appropriations Committee and share the Senator's concerns on the
need to protect American jobs. My subcommittee has jurisdiction over
the FTC and you can be assured that we will closely watch any action
taken by the FTC regarding the current standard for ``Made in the
U.S.A.''
Mr. HOLLINGS. I too want to assure the Senator that our Subcommittee
will closely monitor any actions on the FTC's part to change the ``Made
in the U.S.A.'' designation. The ``Made in the U.S.A.'' label should
continue to assure consumers that they are purchasing a product wholly
made by American workers.
Mr. KOHL. I thank Senator Gregg and Senator Hollings for their
comments on this important issue. I am reassured by their interest in
this matter.
jefferson parish communications system
Mr. BREAUX. Mr. President, I rise to discuss with the distinguished
chairman of the subcommittee, Senator Gregg, the distinguished ranking
member of the subcommittee, Senator Hollings, and my distinguished
colleague from Louisiana, Senator Landrieu, an important safety issue
facing Jefferson Parish, LA.
As my colleagues know, the Jefferson Parish Sheriff's Office is one
of the most progressive and notable law enforcement offices in the
country. Unfortunately, they have been forced to use a conventional 450
MHz UHF radio system that is far too small and antiquated to handle
current traffic volumes and to provide the secure and varied
communications capabilities necessary in today's law enforcement
environment. Replacing this old system with a new 800 MHz digital
system is necessary to ensure the safety of its residents and guests,
and to enhance the operational efficiencies of the sheriff's office.
Hurricane Danny recently demonstrated the dire need for this new
communications system. Grand Isle, off the southern-most part of
Jefferson Parish, is a barrier island with approximately 2,500
residents. There is, however, only one road leading from Grand Isle to
the mainland. When it appeared this road was at risk because of Danny's
70-75 mph winds and high tides, the sheriff's office decided to
evacuate the island. Unfortunately, before the island could be safely
evacuated, one of the radio towers was damaged and rendered inoperable
by the hurricane. The sheriff's office was forced to borrow cellular
telephones in order to evacuate the island.
Ms. LANDRIEU. The Senator makes a fine point, and I would like to add
that the new communications system would also support inter-operability
with most of the adjoining parishes and the city of New Orleans. This
would mean expanded emergency capabilities throughout the region which
are vital to the entire State of Louisiana.
Mr. BREAUX. Mr. President, as my colleague knows, the sheriff's
office of Jefferson Parish has sought assistance in the past and has
helped to highlight the need for Federal assistance to help local law
enforcement agencies replace outdated communications equipment. In
fact, the sheriff's office was influential in getting a discretionary
grant program created in 1994 that would provide funds for these types
of activities. However, Congress has consistently earmarked these
funds, leaving no funds for grant applicants.
Ms. LANDRIEU. Mr. President, the Jefferson Parish Sheriff's Office
has demonstrated its commitment to this project by allocating over 50
percent of the cost of this initiative in a dedicated escrow account.
In a competition for funds, the sheriff's office, with its well
developed procurement strategy and available matching funds, would no
doubt prevail as a deserving candidate.
Mr. GREGG. I thank the Senators from Louisiana for bringing this
issue to my attention. I understand that the new communication system
for the sheriff's office in Jefferson Parish is a priority and I will
give this request my attention and consideration in conference.
[[Page S8080]]
Mr. HOLLINGS. I too, thank the Senators from Louisiana and believe
that this is a project worthy of attention in conference.
Mr. BREAUX. I greatly appreciate the assistance of the distinguished
chairman and ranking member of the subcommittee in this matter. I would
like to thank them and my colleague from Louisiana, Senator Landrieu,
for joining me in this colloquy.
odyssey maritime discovery center exhibits and lecture series
Mrs. MURRAY. Mr. President, I would like to urge the chairman and
ranking member of the Commerce, State Justice Appropriations
Subcommittee to join me in directing the National Marine Fisheries
Service, through the Information and Analyses, Resource Information
account, to provide $250,000 to the Odyssey Maritime Discovery Center
in Seattle, WA.
The Odyssey Center is a new educational learning center opening in
July, 1998. This Center will establish an educational link between the
everyday maritime, fishing, trade, and environmental activities that
occur in the waters of Puget Sound and Alaska, and the lessons students
learn in the classroom. Through high-tech and interactive exhibits,
over 300,000 children and adults per year will discover that what
happens in our waters, on our coast lines, at our ports affects our
State's and Nation's economic livelihood, environmental well-being, and
international competitiveness. The Center wishes to establish an
exhibits and lecture series to link the public, particularly school
children, with the maritime, fishing, trade, and environmental
industries. Named in honor of the great Senator of Washington, Warren
G. Magnuson, this series would begin in 1998 and would serve as an
educational resource on the sustainable development, uses, and
protection of our seas and coastal waters. This series would provide a
fitting tribute to Senator Magnuson, the founder of this Nation's
Federal fisheries policies and the namesake of our principal fisheries
management law, the Magnuson-Stevens Fishery Conservation and
Management Act.
Mr. HOLLINGS. Mr. President, I join the Senator from Washington in
supporting this exhibits and lecture series at the Odyssey Maritime
Discovery Center and believe the National Marine Fisheries Service
should provide $250,000 through the Information and Analyses, Resource
Information account. I too feel this series will provide a fitting
tribute to the former Senator from Washington and an important learning
tool for young people.
Mr. GREGG. Mr. President, I also join the Senator from Washington in
supporting this lecture series. I think Senator Magnuson would be
honored by this educational effort to teach children about the ways of
the sea, and the economic and ecological ways of life that depend on
it.
Mrs. MURRAY. I thank the chairman and ranking member of the
Subcommittee for their support and interest.
Mr. GORTON. Mr. President, I join in support of this effort on behalf
of the Odyssey Maritime Discovery Center and I applaud Senator Murray's
efforts on the Center's behalf.
women's business centers
Mr. DOMENICI. Mr. President. On June 12, I introduced in behalf of
myself and Senator Bond, along with 24 other cosponsors, a bill to
strengthen the Small Business Administration's [SBA] women's business
centers program. This bill, S. 888, the ``Women's Business Centers Act
of 1997,'' reflects our commitment for a stronger and more dynamic
program for women-owned businesses.
I am pleased that the Small Business Committee has included the text
of this bill into its 3-year reauthorization of the Small Business Act.
It is anticipated that this reauthorization bill will be considered by
the Senate within the next few months. The language in the
reauthorization bill, as stated in the ``Women's Business Centers Act
of 1997,'' increases the annual funding authorization for the women's
business centers to $8 million from the present level of $4 million,
authorizes the centers to receive funding for 5 years rather than the
present 3 years, changes the matching Federal to non-Federal funding
formula, and enables organizations receiving funds at the date of
enactment to extend their program from 3 to 5 years.
Since the Small Business Committee's reauthorization bill has not yet
been considered by the Senate, the additional funds for the women's
business centers' program are not included in S. 1022. I do want,
however, to thank Senator Gregg, Chairman of the Commerce, State,
Justice, and Judiciary Subcommittee of the Senate Appropriations
Committee, for providing full funding of the authorized $4 million for
1998. This is most appreciated by all of us who support the women's
business centers' activities, and it is especially important since the
House has requested $1 million less for this program.
It will be most beneficial if the Small Business reauthorization bill
is considered and passed in the Senate and House prior to conference on
this appropriations measure. I draw my colleagues' attention to this
issue because absent the higher authorized funds of $8 million for the
women's centers' program, it means in 1998 we may not be able to
achieve the expansion of this program as we intended. There will be
insufficient funds to expand the program into States who presently do
not have women's centers and existing programs cannot extend their
programs from 3 to 5 years. This is a serious problem because we are
well aware of the positive benefits of the women's business centers in
helping women entrepreneurs, the fastest growing group of new small
businesses in the United States. These business centers are able to
leverage public and private resources to help their clients develop new
businesses or expand existing ones, and their services are absolutely
essential for the successful and continued growth of this sector of our
economy.
I am also concerned that because there are insufficient funds to
expand the women's business centers' program, existing centers will not
be able to extend their activities from the present 3-year grant
program to a 5-year schedule. These existing centers in approximately
29 States have proven track records of support to women entrepreneurs.
The Office of Women's Business Ownership within the SBA will continue
its administration of the overall program and will be able to develop a
few new sites in States that do not have centers; however, the office
is not yet authorized to extend funding an additional 2 years for
existing sites. This is most regrettable because these successful
existing centers desperately need these small amounts of funds to
continue their professional assistance to their women-owned business
clients.
Mr. President, I want to once again go on record that I am
dissatisfied that the SBA has not given appropriate attention to the
women's business program. It has failed to provide sufficient
professional personnel to the Office of Women's Business Ownership in
order to carry out its important tasks. It has repeatedly requested
less funding than authorized for the program despite the fact that this
is one of the most successful of all SBA programs. To my knowledge, it
has never come to Congress and requested additional monies for the
program; instead, it has expected Congress to do SBA's work in
trumpeting the successes of this small but vital program. I find it
most discouraging that while we in Congress are well aware of the
outstanding work of the women's business centers--and the
administration's repeatedly publicized the success stories last year--
there appears to be minimal support within SBA for expanding the work
of this very small program. This is a loss to the agency, and it is
most assuredly a loss to countless thousands of women entrepreneurs,
let alone a loss to our overall national economy.
We must keep in mind that the funds in this bill for the women's
business centers reflect those appropriated in 1997, and, therefore,
the expansion of this program as envisioned in S. 888, the ``Women's
Business Centers Act of 1997'' and the reauthorization of the Small
Business Act, may be delayed. As evidenced by cosponsorship of S. 888,
a fourth of the Senate, on a bipartisan basis, supports expansion of
the women's business centers' program. We need to be aware of the
consequences of this and do everything we possibly can to provide the
support this critical and highly successful program needs in the
future. Thank you.
The Vermont World Trade Office
Mr. LEAHY. Mr. President, I would like to take a moment to highlight
a
[[Page S8081]]
program in my State which I believe is a model the Small Business
Administration [SBA] should consider investing in. Small businesses are
the driving force of Vermont's economy. An important reason for their
success in the State has been the development of a healthy export
market for the goods they produce. Forty percent of Vermont companies,
employing some 70,000 Vermonters, are engaged in some degree of export
trade. In 1995, Vermont created and funded the Vermont World Trade
Office [WTO] to provide technical assistance to Vermont businesses and
information on foreign trade opportunities. The office has been
overwhelmed by requests from companies interested in exploring trade
opportunities. To meet that demand and make the office more convenient
to Vermont businesses, the WTO hopes to open satellite offices in other
parts of the State, expand services and offer additional seminars for
interested businesses. Funding from the SBA would make this expansion
possible. I believe that a modest investment by SBA would yield a
valuable demonstration of the importance of export assistance in
building and expanding markets for small businesses. Does the Senator
from New Hampshire agree that this would be an appropriate use of SBA
funding?
Mr. GREGG. Mr. President, I thank the Senator from Vermont for
bringing this project to my attention. I agree that many small
businesses do not have adequate access to information on building an
export market for their goods. A demonstration of the importance of
this assistance by the Vermont World Trade Office would benefit other
States considering a similar system. I urge the SBA to consider
providing the Vermont World Trade Office with $150,000 to conduct such
a demonstration.
violence institute
Mr. LAUTENBERG. I want to express my support for the University of
Medicine and Dentistry of New Jersey's [UMDNJ] Violence Institute,
which provides valuable assistance to our efforts to curb violent
behavior in all aspects of our society. The Violence Institute's
programs are not directed solely at violent behavior of a criminal
nature, but also focus on issues of domestic violence, and violence
against women and children. I want to note that the Violence Institute
was one of only a handful of projects recommended for special funding
in the conference report accompanying the fiscal year 1997 Commerce,
Justice, State appropriations bill.
I ask my colleagues, the chairman and ranking member of the Commerce,
Justice, State Appropriations Subcommittee, Senators Gregg and
Hollings, if they agree that the Violence Institute's initiatives to
curb violent behavior are consistent with the Department of Justice's
objectives and that such programs are worthy of the Department's
support?
Mr. GREGG. I appreciate the concerns of my colleague from New Jersey
about reducing violent behavior in our society, and I agree that the
Violence Institute provides valuable assistance in addressing the
epidemic of violent crime in the United States. Successful programs
that provide research into the basic causes of violence, and that
develop initiatives to prevent the spread of violent crime, can be
valuable tools in our Nation's fight against crime. I believe that
programs such as the ones conducted at the Violence Institute are
worthy of the Department's support.
Mr. HOLLINGS. I, too, share the concerns of the Senator from New
Jersey about violent crime in our society. The Violence Institute's
research in this area makes a significant contribution to the
Department of Justice's efforts to address this problem, and I agree
with the chairman that programs like the Violence Institute are worthy
of the Department's support.
communications assistance for law enforcement act
Mr. LEAHY. Mr. President, Chairman Gregg and the Appropriations
Subcommittee on Commerce, Justice, State and the Judiciary recognize in
the Report for S. 1022 that the ``pace of technological change in the
telecommunications industry poses enormous challenge'' both to law
enforcement and national security agencies in conducting court-
authorized wiretaps and ``in the conduct of foreign counterintelligence
and terrorism investigations in the United States.'' The Communications
Assistance for Law Enforcement Act [CALEA], which I sponsored in the
103d Congress, addressed this public safety and national security
problem, after considerable debate and hearings in the Judiciary
Committees of both the House and the Senate. I commend the chairman and
the subcommittee for recognizing ``that digital telephony is a top law
enforcement priority.''
CALEA authorizes $500 million for the Attorney General to pay
telecommunications carriers for costs associated with modifying the
embedded base of equipment, services, and facilities to comply with
CALEA. Nevertheless, S. 1022 does not include any funding for this law,
based upon the Committee's finding ``that the Bureau has adequate
resources available.''
Moreover, the report recommends that no funds be expended for CALEA
until the following requirements are met: First, the Bureau creates a
working group with industry officials approved by the House and Senate
Appropriations Committees, and second, the working group develops a new
``more rational, reasonable, and cost-effective CALEA implementation
plan'' that is satisfactory to the Senate Appropriations Committee.
Would Chairman Gregg agree with me that in addition to the
Appropriations Committees, the Judiciary Committees of both the House
and Senate, which authorized CALEA, should also be involved in
approving the industry officials on the working group and any plan
provided by the working group?
Mr. GREGG. Yes. It is appropriate for the Committees on the Judiciary
of both the House and the Senate to be involved and that was the
intention of the committee when it prepared the report.
Mr. HOLLINGS. Yes. I agree with Senators Leahy and Gregg.
Mr. LEAHY. This addresses one of the concerns I have with the
report's new requirements for expenditures of money for CALEA
implementation.
I am also concerned about whether creation of the working group
tasked with developing a CALEA implementation plan will delay, rather
than facilitate, implementation of this law and compliance by
telecommunications carriers with the four law enforcement requirements
enumerated in this important law. Indeed, the report places no time
constraints on creation of this working group or on when the Bureau-
working group implementation plan must be submitted to the specified
committees.
Further delay in implementation of CALEA poses risks for the
effectiveness of our law enforcement agencies. As the committee
acknowledges, they are already encountering problems in executing
court-authorized wiretaps. The industry, with the input of law
enforcement, has drafted a specifications standard for CALEA. I am
concerned that objections from the Bureau over elements in that
proposed standard are delaying its adoption. I would like to see the
Bureau accept that standard and get on with CALEA implementation.
I am also concerned that the working group proposed by the committee
will work behind closed doors, without the accountability that CALEA
intended. We should make sure that any meetings of the working group
will be open to privacy advocates and other interested parties.
I fully appreciate that questions have been raised about how the
implementation of CALEA is proceeding. That is why, over a year ago,
Senator Specter and I asked the Digital Privacy and Security Working
Group, a diverse coalition of industry, privacy and government reform
organizations, for its views on implementation of CALEA, and other
matters. We circulated to our colleagues on June 20, 1997, a copy of
this group's ``Interim Report: Communications Privacy in the Digital
Age.'' The report recommends that hearings be held to examine
implementation of CALEA, how the Bureau intends to spend CALEA funds,
and the viability of CALEA's compliance dates. This recommendation is a
good one.
We should air these significant questions at an open hearing before
the authorizing Committees. I would rather see the authorizing
Committees work in that fashion with the Appropriations Committees to
make funds immediately available and insure those
[[Page S8082]]
funds are spent to establish a minimum standard that serves law
enforcement's pressing needs, without some of the enhancements being
proposed by the FBI that industry claims are delaying the process of
implementation. The committees should insist on some priorities in
terms of geographic need and capability. I think we could resolve this
with a little oversight, and return to the spirit of reasonableness
that characterize the drafting of CALEA.
technical corrections
Mr. GREGG. Mr. President, the following are technical corrections to
the fiscal year 1998 Departments of Commerce, Justice, and State, the
Judiciary and related agencies appropriations report: First, under
``Title I--Department of Justice'', on page 7, line 3, delete
$17,251,958,000; and insert $17,278,990,000; on page 7, line 6, delete
$826,955,000 and insert $853,987,000; and second, under ``Title V--
Related Agencies, Small Business Administration'', on page 126, line
22, delete $8,756,000 and insert $8,756,000,000.
Amendment No. 979
Mr. GREGG. Mr. President, I ask unanimous consent that we now adopt
the managers' amendment, which is the pending amendment No. 979.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 979) was agreed to.
Mr. GREGG. Mr. President, I move to reconsider the vote.
Mr. HOLLINGS. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendments Nos. 999 through 1021, En Bloc
Mr. GREGG. Mr. President, I now send a series of amendments to the
desk and ask unanimous consent that they be considered read and agreed
to, the motion to reconsider be laid upon the table, and that any
statements relating to these amendments be inserted at this point in
the Record, with all of the above occurring, en bloc.
These amendments have been cleared by both sides of the aisle.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments (Nos. 999 through 1021) were agreed to, as follows:
Amendment No. 999
At the appropriate place, insert the following:
Notwithstanding any other provision of law, the Economic
Development Administration is directed to transfer funds
obligated and awarded to the Butte-Silver Bow Consolidated
Local Government as Project Number 05-01-02822 to the Butte
Local Development Corporation Revolving Loan Fund to be
administered by the Butte Local Development Corporation, such
funds to remain available until expended.
____
Amendment No. 1000
(Purpose: To require a non-profit public affairs organization to
register with the Attorney General if the organization receives
contributions in excess of $10,000 from foreign governments in any 12-
month period)
On page 65, between lines 9 and 10, insert the following:
Sec. 120. (a) Section 1(d) of the Foreign Agents
Registration Act of 1938, as amended (22 U.S.C. 611(d)) is
amended by inserting after ``The term `agent of a foreign
principal' '' the following: ``(1) includes an entity
described in section 170(b)(1)(A)(vi) of the Internal Revenue
Code of 1986 that receives, directly or indirectly, from a
government of a foreign country (or more than one such
government) in any 12-month period contributions in a total
amount in excess of $10,000, and that conducts public policy
research, education, or information dissemination and that is
not included in any other subsection of 170(b)(1)(A), and
(2)''.
(b) Section 3(d) of such Act (22 U.S.C. 613(d)) is amended
by inserting ``, other than an entity referred to in section
1(d)(1),'' after ``any person''.
Mr. BINGAMAN. Mr. President, this amendment is basically a sunshine
provision that would require nonprofit public affairs organizations to
register with the Attorney General if such organizations receive
contributions in excess of $10,000 from foreign governments in any 12-
month period.
This provision would not affect churches, hospitals, or other
nonprofit, 501(c)3 organizations which are not focused on public policy
matters. In fact, this amendment only affects those public policy
nonprofit organizations that do accept foreign government money.
Furthermore, this amendment does not prohibit or object to such
foreign government contributions. It only requires that organizations
publicly acknowledge such contributions--when they are over a threshold
of $10,000 a year from all foreign government sources--by registering
this information with the Attorney General under the Foreign Agents
Registration Act.
Mr. President, I'm sure that many of my colleagues may be wondering
what triggered the need for this legislation. Let me state that this
amendment is not directed at any particular organization or nonprofit
entity. This is simply a common-sense provision that will help make the
public affairs environment healthier by the disclosure of when foreign
government money is supporting a given nonprofit public affairs
organization and when not.
These nonprofit organizations are organized for the public good and
they are subsidized by the American people. To the degree that these
organizations are weighing in on important public policy matters--
particularly on our Nation's economic policies and defense strategies,
but also in other public policy areas--and are receiving foreign
government contributions to support their activities, I believe that
the American public has the right to know that such foreign government
contributions have been made to that organization.
Members of Congress and their staff meet regularly with
representatives of many nonprofit public affairs organizations--which
are permitted to engage in public education activities on the Hill. But
while some organizations like the Japan Economic Institute and Korea
Economic Institute are quite straightforward about their primary
funding sources and register with the Attorney General that their
sources of funding are foreign governments, some other nonprofit public
affairs organizations actually try to keep from public view the fact
that they receive substantial foreign government revenue.
When these groups meet with Members of Congress and staff, mail
information all around the country, and organize public affairs events
without ever disclosing the fact that their funding comes from other
countries' national governments, something is wrong.
Mr. President, this amendment has a different target than the
discussions going on about campaign finance reform. It is focused on a
rather narrow window in the law which allows some nonprofits to be
bolstered by foreign government funds while not having to be upfront
with the broader public.
I believe that our public policy process can only benefit by the
disclosure that this legislation would require. And I trust that my
colleagues will agree and hope that they will support this amendment
which I am offering today.
amendment no. 1001
At the appropriate place, insert the following new section:
Sec. . The Office of Management and Budget shall
designate the Jonesboro-Paragould, AR Metropolitan
Statistical Area in lieu of the Jonesboro, AR Metropolitan
Statistical Area. The Jonesboro-Paragould, AR Metropolitan
Statistical Area shall include both Craighead County, AR and
Greene County, AR, in their entirety.
____
amendment no. 1002
On page 29 of the bill, on line 18, before the ``:'' insert
the following: ``, of which $25,000,000 shall be for grants
to states for programs and activities to enforce state laws
prohibiting the sale of alcoholic beverages to minors or the
purchase or consumption of alcoholic beverages by minors''.
Mr. BYRD. Mr. President, of the funds appropriated for law
enforcement grants in the bill before us, my amendment would ensure
that $25 million would be provided for grants to states for programs
and activities to enforce state laws regarding youth access to alcohol.
This amendment adds no money to the bill and needs no offset.
All states prohibit the sale of alcoholic beverages to minors. In
addition, thee are a range of other laws regarding youth access to
alcohol that states may have on the books. For instance, some states,
in addition to prohibiting the sale of alcoholic beverage to minors,
have laws prohibiting the consumption of alcoholic beverages by minors,
and still others ban possession of alcoholic beverages by minors.
Mr. President, just today in The Washington Post there is an article
regarding a sting operation in Arlington County in establishments that
sell alcohol to minors. According to the officer in charge of the
operation, minors purchased alcoholic beverages without any kind of
I.D. check in 57 percent of the establishments visited. This is a
[[Page S8083]]
disgrace, Mr. President, and, I am afraid, a not uncommon occurrence. I
concur wholeheartedly with a quote of Eric, who is 19 years old and who
participated in the sting operation. According to Eric, ``We've figured
out why we have an underage drinking problem.'' With the media and
advertisements besieging our nation's youth with unrealistic messages
about alcohol consumption combined with insufficient enforcement of
laws already on the books, what you wind up with is, indeed, an
``underage drinking problem.'' The article concludes by saying that
County officials even warned establishments that they would be using
underage people to buy alcohol, and, still, 57 percent of the time the
underage participants in the operation were able to purchase alcohol
without challenge. What would the percentage have been had the letters
not been sent? Mr. President, I ask unanimous consent that the article
from The Washington Post be printed into the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:
Alcohol Sales to Minors Targeted--170 of 294 Businesses Sold to Teen
Testers
[From the Washington Post, July 24, 1997]
(By Brooke A. Masters)
When the Arlington County police decided to crack down on
restaurants, hotels and stores that sell alcohol to minors,
they were shocked by the results.
Since mid-June, they have sent 18- and 19-year-old testers
to 294 establishments, and the testers were able to buy booze
at 170 of them. Servers and clerks failed to check
identification at everything from the Ritz-Carlton Hotel to
two out of three restaurants in the Fashion Centre at
Pentagon City to dozens of small convenience stores.
``We're making purchases at 57 percent of the places we go
to. It's really absurd,'' said Lt. Thomas Hoffman, who is
overseeing the sting. ``We figured we'd get 30 percent.''
Eric, a 19-year-old Virginia Tech sophomore who
participates in the stings, said, ``We've figured out why we
have an underage drinking problem.''
Eric, who is not being fully identified because he's still
out trying to buy alcohol, and his fellow student aides wear
recording devices when they enter a store or a restaurant.
They carry no identification, so stores and restaurants can't
claim that the testers provided fake IDs.
In restaurants, the students order drinks, and county
police officers take over once the alcohol arrives, Hoffman
said. They pour the drinks into evidence bottles, take
pictures of the server and hand out arrest warrants.
In stores, the students take beer or wine up to the
counter, pay for it and leave. Then an officer goes in and
makes an arrest, he said. Often, the employees claim that
they usually check ID or that the tester is a regular. The
employees all have been charged with serving alcohol to a
minor, a misdemeanor.
At Hard Times Cafe in Clarendon, the young female tester
came in with an older man, and the server ``looked at the guy
and assumed he's her father and he wouldn't let her drink
under age,'' said Su Carlson, the general manager. ``We were
wrong. But it's slightly entrapment. It's better to put an
undercover person in an establishment, and if they see
someone underaged drink, ID them.''
The sting also has caught four underage people selling
alcohol, which also is illegal, Hoffman said. One of those
caught was a 10-year-old working beside her father at a
family-run store, he said.
Testers have revisited 12 stores and restaurants after
busting employees a first time, and two of them, a Giant
pharmacy and a CVS drugstore, failed to card a second time,
police records show.
``We are constantly educating our people about selling
alcohol to minors with training sessions, booklets and
videos,'' Giant Vice President Barry Scher said. ``But we
have 5,000 checkers, and we do the best we can.''
The Virginia Department of Alcoholic Beverage Control has
started administrative proceedings against 29 establishments
where arrests have been made, and that's just the beginning.
``It is our intention to file a charge against each and every
establishment,'' said Philip Disharoon, assistant special
agent in charge of the Alexandria/Arlington ABC office.
The sting, while it is Arlington's first in recent years,
is not unprecedented in the Washington area. In 1994,
Montgomery County sent underage drinkers to 25 county hotels
and eventually cited 14 businesses for selling alcohol to
minors in hotel rooms.
Nor did the operation come out of the blue: Arlington
officials sent letters to all licensed stores, restaurants
and hotels in April warning that they would be using underage
people to buy alcohol.
Mr. BYRD. Mr. President, alcohol is the drug used most by teens with
devastating consequences. According to statistics compiled by the
National Center on Addiction and Substance Abuse, among children
between the ages of 16 and 17, 69.3 percent have at one point in their
lifetimes experimented with alcohol. As I consistently remind my
colleagues, in the last month, approximately 8 percent of the nation's
eighth graders have been drunk. Eighth graders are 13 years old, Mr.
President! Junior and senior high school students drink 35 percent of
all wine coolers and consume 1.1 billion cans of beer a year. And I
will repeat what is common knowledge to us all--every state has a law
prohibiting the sale of alcohol to individuals under the age of 21.
Knowing this, how is it then that two out of every three teenagers who
drink report that they can buy their own alcoholic beverages? As if the
dangers of youth alcohol consumption are not bad enough, statistics
have shown that alcohol is a gateway to other drugs such as marijuana
and cocaine.
Drinking impairs one's judgment and when mixed with teenage driving
there are too often lethal results. In 1995, there were 2,206 alcohol-
related fatalities of children between the ages of 15 and 20. For many
years, I have taken the opportunity when addressing groups of youth
West Virginians to warn them about the dangers of alcohol, and I have
supported legislative efforts to discourage people, particularly young
people, from drinking any alcohol. I am proud to have sponsored an
amendment two years ago which requires states to pass zero-tolerance
laws that will make it illegal for persons under the age of 21 to drive
a motor vehicle if they have a blood alcohol level greater than .02
percent. This legislation helps to save lives and sends a message to
our nation's youth that drinking and driving is wrong, that it is a
violation of the law, and that it will be appropriately punished.
Our children are besieged with media messages that create the
impression that alcohol can help to solve life's problems, lead to
popularity, and enhance athletic skills. These messages coupled with
insufficient enforcement of laws prohibiting the consumption of alcohol
by minors give our nation's youth the impression that it is okay for
them to drink. This impression has deadly consequences. In the three
leading causes of death for 15 to 24 year olds, accidents, homicides,
and suicides, alcohol is a factor. Efforts to curb the sale of alcohol
to minors have high payoffs in helping to prevent children from
drinking and driving death or injury.
There is a link between alcohol consumption and increased violence
and crime, and I believe that directing funding to programs to enforce
underage drinking and sale-to-minors laws will have a positive effect
on efforts to address juvenile crime. According to the Center on
Addiction and Substance Abuse at Columbia University, on college
campuses, 95 percent of violent crime is alcohol-related and in 90
percent of campus rapes that are reported, alcohol is a factor. 31.9
percent of youth under the age of 18 in long-term, state operated
juvenile institutions were under the influence of alcohol at the time
of their arrest. These statistics are frightening and they need to be
addressed.
This amendment will send a clear message to states that the federal
government recognizes that enforcement of underage drinking laws is an
important priority and that we are willing to back that message up with
funds to assist states in their efforts. It is not good enough to
simply urge better enforcement. We must provide the resources.
In addition, Mr. President, I would like to say to my good friend,
the Chairman of the Judiciary Committee, Senator Hatch, that I intend
to work with him when S. 10, the Violent and Repeat Juvenile Offender
Act of 1997, is being reauthorized and before the Senate in order to
authorize funding for this program in the coming fiscal years.
I call on my colleagues to support this amendment which will help
states and localities better enforce youth alcohol laws and protect our
children.
amendment no. 1003
On page 86, line 3 after ``Secretary of Commerce.'' insert
the following:
Sec. 211. In addition to funds provided elsewhere in this
Act for the National Telecommunications and Information
Administration Information Infrastructure Grants program,
$10,490,000 is available until expended: Provided, That this
amount shall be offset proportionately by reductions in
appropriations provided for the Department of Commerce in
Title II of this Act, provided amounts provided: Provided
further, That no
[[Page S8084]]
reductions shall be made from any appropriations made
available in this Act for the National Oceanic and
Atmospheric Administration, National Institute of Standards
and Technology and National Telecommunications and
Information Administration public broadcasting facilities,
planning and construction.
____
amendment no. 1004
On page 29 of the bill, line 2, after ``Center'' insert the
following: ``, of which $100,000 shall be available for a
grant to Roberts County, South Dakota; and of which $900,000
shall be available for a grant to the South Dakota Division
of Criminal Investigation for the procurement of equipment
for law enforcement telecommunications, emergency
communications, and the state forensic laboratory''.
____
amendment no. 1005
Purpose: To improve the bill by amending section 305 to realign Guam
and the Northern Mariana Islands with the United States Court of
Appeals for the Twelfth Circuit)
On page 93, strike the matter between lines 14 and 15 and
insert the following:
California, Nevada.'';.................................................
On page 93, strike the matter between lines 17 and 18 and
insert the following:
Alaska, Arizona, Guam, Hawaii, Idaho, Montana, Northern Mariana .......
Islands, Oregon, Washington.''.
On page 94, strike lines 14 through 19 and insert the
following:
``(1) is in California or Nevada is assigned as a circuit
judge on the new ninth circuit;
(2) is in Alaska, Arizona, Guam, Hawaii, Idaho, Montana,
Northern Mariana Islands, Oregon, Washington is assigned as a
circuit judge on the twelfth circuit; and''.
____
amendment no. 1006
(Purpose: Sense of the Senate regarding half a century of service to
U.S. taxpayer)
At the appropriate place, insert the following new section:
SEC. . SENSE OF THE SENATE REGARDING THE EXEMPLARY SERVICE
OF JOHN J. R. BERG TO THE UNITED STATES.
Whereas, John H. R. Berg began his service to the United
States Government working for the United States Army at the
age of fifteen after fleeing Nazi persecution in Germany
where his father died in the Auschwitz concentration camp;
and,
Whereas, John H. R. Berg's dedication to the United States
Government was further exhibited by his desire to become a
United States citizen, a goal that was achieved in 1981, 35
years after he began his commendable service to the United
States; and,
Whereas, since 1949, John H. R. Berg has been employed by
the United States Embassy in Paris where he is currently the
Chief of the Visitor's and Travel Unit, And, this year has
supported over 10,700 official visitors, 500 conferences, and
over 15,000 official and unofficial reservations; and,
Whereas, John H. R. Berg's reputation for ``accomplishing
the impossible'' through his dedication, efficiency and
knowledge has become legend in the Foreign Service; and,
Whereas, John H. R. Berg has just completed 50 years of
outstanding service to the United States Government with the
United States Department of State,
Therefore Be It Resolved, it is the Sense of the Senate
that John H. R. Berg deserves the highest praise from the
Congress for his steadfast devotion, caring leadership, and
lifetime of service of the United States Government.
Mr. HARKIN. Mr. President it is my great pleasure to offer this sense
of the Senate to recognize and commend John H.R. Berg for 50 years of
service to the U.S. Government on behalf of myself and Senator Warner.
Mr. Berg's employment with the U.S. Government began at age 15 working
for the U.S. Army in 1946. From July 1947 to February 1949 he worked
with the American Graves Registration Command in Paris.
In July 1949, Mr. Berg began his employment with the U.S. Embassy in
Paris. Currently, he is the chief of the visitors and travel unit in
our Embassy in Paris. Currently, he is the chief of the visitors and
travel unit in our Embassy in Paris. So far this year, as chief of the
Embassy's travel and visitors office, Mr. Berg and his staff of three
have supported over 10,700 official visitors, 500 conferences, and over
15,000 official and unofficial reservations. The position entails
coordinating all travel, transportation, housing control rooms and
airport formalities for visits and conferences. Mr. Berg's dedication,
efficiency, and wide range of useful host government and private sector
contacts have been invaluable to the Embassy and the U.S. Government.
His support efforts, personal interest, and ability to accomplish the
impossible have become legend in the Foreign Service and to those of us
who know his work personally.
I know I speak for those who have worked with Mr. Berg when I say
that he has devoted his life to providing dedicated, faithful, and
loyal service to the U.S. Government. He willingly and cheerfully works
long hours--evenings, weekends and holidays--to ensure that our visits
are handled in the most skillful and efficient manner possible. And he
has received five Department of State Meritorious Honor Awards for his
outstanding work.
A little known fact about John Berg was that he was a stateless
person at the beginning of his service to the U.S. Government. He was
born in Germany in 1930, but lost his German citizenship in 1943 due to
Nazi Jewish persecution. After his father was deported to Auschwitz, he
and his mother with a small group of brave Jews, hid in Berlin from the
Gestapo until the end of the war. The heroism they exhibited and the
dangers they faced are documented in the book, ``The Last Jews of
Berlin,'' by Leonard Gross. His father died in the concentration camp.
And after World War II, John Berg moved to France where he began
working for the American Government, and has now completed 50 years of
service to the U.S. Government. For all his adult life, John Berg's
most fervent desire was to become a U.S. citizen. That goal was
realized, and he was sworn in as an American citizen in 1981.
Mr. President I cannot think of a better role model for those in the
public sector. Therefore, I believe that John Berg deserves the
absolute highest praise from the President and the Congress for his 50
years of dedicated service to the U.S. Government.
Mr. WARNER. Mr. President, I am privileged to join my friend from
Iowa, Senator Harkin, in putting in the Senate's recognition of John
Berg--an institution himself.
His service to Americans was his life. No task was insurmountable; no
task was performed with less than all-out dedication.
My most memorable among many trips to Paris was during the
bicentennial of the Treaty of Paris in 1983. President Reagan had
appointed me as his representative to the many events the French hosted
to honor the first treaty to recognize, in 1783, a new Nation--the 13
colonies as the United States of America. John Berg was my aid-de-camp
throughout that visit. I should add to that official visits to the 40th
and 50th recognitions of D-day, June 6, 1944.
And so it goes for all of us in Congress as we salute John Berg. Well
done, sir.
amendment no. 1007
At the appropriate place in the bill, insert the following
new section:
``The Administrative Office of the United States Courts, in
consultation with the Judicial Conference, shall conduct a
study of the average costs incurred in defending and
presiding over federal capital cases from the initial
appearance of the defendant through the final appeal, and
shall submit a written report to the Chairman and Ranking
Members of the Senate and House Committees on Appropriations
and Judiciary on or before July 1, 1998, containing
recommendations on measures to contain costs in such cases,
with constitutional requirements.''
``: Provided Further, That the Attorney General, shall
review the practices of U.S. Attorneys' Offices and relevant
investigating agencies in investigating and prosecuting
federal capital cases, including before the initial
appearance of the defendant through final appeal, and shall
submit a written report to the Chairman and Ranking Members
of the Senate and House Committees on the Appropriations and
Judiciary on or before July 1, 1998, containing
recommendations on measures to contain costs in such cases,
consistent with constitutional requirements, and outlining a
protocol for the effective, fiscally responsible prosecution
of federal capital cases''.
____
amendment no. 1008
(Purpose: To express the sense of the Senate with respect to slamming)
At the appropriate place insert the following:
SEC. . SENSE OF THE SENATE WITH RESPECT TO SLAMMING.
(a) Statement of Purpose.--The purposes of this statement
of the sense of the Senate are to--
(1) protect consumers from the fraudulent transfer of their
phone service provider;
(2) allow the efficient prosecution of phone service
providers who defraud consumers; and
(3) encourage an environment in which consumers can readily
select the telephone service provider which best serves them.
(b) Findings.--The Congress finds the following:
(1) As the telecommunications industry has moved toward
competition in the long distance market, consumers have
increasingly elected to change the company which
[[Page S8085]]
provides their long-distance phone service. As many as fifty
million consumers now change their long distance provider
annually.
(2) The fluid nature of the long distance market has also
allowed an increasing number of fraudulent transfers to
occur. Such transfers have been termed ``slamming'', which
constitutes any practice that changes a consumer's long
distance carrier without the consumer's knowledge or consent.
(3) Slamming is now the largest single consumer complaint
received by the Common Carrier Bureau of the Federal
Communications Commission. As many as one million consumers
are fraudulently transferred annually to a telephone consumer
which they have not chosen.
(4) The increased costs which consumers face as a result of
these fraudulent switches threaten to rob consumers of the
financial benefits created by a competitive marketplace.
(5) The Telecommunications Act of 1996 sought to combat
this problem by directing that any revenues generated by a
fraudulent transfer be payable to the company which the
consumer has expressly chosen, not the fraudulent transferor.
(6) While the Federal Communications Commission has
proposed and promulgated regulations on this subject, the
Commission has not been able to effectively deter the
practice of slamming due to a lack of prosecutorial resources
as well as the difficulty of proving that a provider failed
to obtain the consent of a consumer prior to acquiring that
consumer as a new customer. Commission action to date has not
adequately protected consumers.
(7) The majority of consumers who have been fraudulently
denied the services of their chosen phone service vendor do
not turn to the Federal Communications Commission for
assistance. Indeed, section 258 of the Communications Act of
1934 directs that State commissions shall be able to enforce
regulations mandating that the consent of a consumer be
obtained prior to a switch of service.
(8) It is essential that Congress provide the consumer,
local carriers, law enforcement, and consumer agencies with
the ability to efficiently and effectively persecute those
companies which slam consumers, thus providing a deterrent to
all other firms which provide phone services.
(c) Sense of the Senate.--It is the sense of the Senate
that--
(1) the Federal Communications Commission should, within 12
months of the date of enactment of this Act, promulgate
regulations, consistent with the Communications Act of 1934
which provide law enforcement officials dispositive evidence
for use in the prosecution of fraudulent transfers of
presubscribed costumers of long distance and local service;
and
(2) the Senate should examine the issue of slamming and
take appropriate legislative action in the 105th Congress to
better protect consumers from unscrupulous practices
including, but not limited to, mandating the recording and
maintenance of evidence concerning the consent of the
consumer to switch phone vendors, establishing higher civil
fines for violations, and establishing a civil right of
action against fraudulent providers, as well as criminal
sanctions for repeated and willful instances of slamming.
____
amendment no. 1009
(Purpose: To foster a safer elementary and secondary school environment
for the nation's children through the support of community policing
efforts)
On page 65, line 10, insert the following: ``Section 120.
There shall be no restriction on the use of Public Safety and
Community Policing Grants, authorized under title I of the
1994 Act, to support innovative programs to improve the
safety of elementary and secondary school children and reduce
crime on or near elementary or secondary school grounds.''
____
amendment no. 1010
(Purpose: To limit the funds made available for the Office of the Under
Secretary of Commerce for Intellectual Property Policy, if such office
is established, and for other purposes)
On page 75, line 3, strike all beginning with
``$20,000,000,'' through line 8 and insert the following:
``such funds as are necessary, not to exceed 2 percent of
projected annual revenues of the Patent and Trademark Office,
shall be made available from the sum appropriated in this
paragraph for the staffing, operation, and support of said
office once a plan for this office has been submitted to the
House and Senate Committees on Appropriations pursuant to
section 605 of this Act.''.
amendment no. 1011
At the appropriate place, add the following:
``Section 1701(b)(2)(A) of title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd) is
amended to read as follows:
``(A) may not exceed 20 percent of the funds available for
grants pursuant to this subsection in any fiscal year.''.
____
amendment no. 1012
At the appropriate place, insert ``Provided further, That
none of the funds appropriated or otherwise made available to
the Immigration and Naturalization Service may be used to
accept, process, or forward to the Federal Bureau of
Investigation any FD-258 fingerprint card, or any other means
used to transmit fingerprints, for the purpose of conducting
a criminal background check on any applicant for any benefit
under the Immigration and Nationality Act unless the
applicant's fingerprints have been taken by an office of the
Immigration and Naturalization Service or by a law
enforcement agency, which may collect a fee for the service
of taking and forwarding the fingerprints.''
____
AMENDMENT NO. 1013
(Purpose: To strike a restriction concerning the transfer of certain
personnel to the Office of Legislative Affairs or the Office of Public
Affairs of the Department of Justice)
On page 2, lines 17 through 22, strike the colon on line 17
and all that follows through ``basis'' on line 22.
____
AMENDMENT NO. 1014
On page 125, strike lines 3-9.
____
AMENDMENT NO. 1015
(Purpose: To provide a waiver from certain immunization requirements
for certain aliens entering the United States)
At the appropriate place, insert the following: WAIVER OF
CERTAIN VACCINATION REQUIREMENTS
Sec. . (a) in general.--Section 212 of the Immigration
and Nationality Act (8 U.S.C. 1182) is amended by adding at
the end the following:
``(p) The Attorney General should exercise the waiver
authority provided for in subsection (g)(2)(B) for any alien
orphan applying for an IR3 or IR4 category visa.''.
Mr. McCain. Mr. President, This is intended to resolve a potentially
serious problem involving foreign children emigrating to the United
States for the purpose of being united with their adoptive parents.
Quite simply, the amendment urges the Attorney General to exercise that
authority to waive vaccination requirements for certain categories of
emigres that is part of current law.
Last year, my colleague from Arizona, Senator Kyl, succeeded in
getting passed legislation authorizing the Attorney General to waive
the immunization requirements for legal aliens entering the country if
medical, moral or religious considerations so warrant. Unfortunately,
that authority has not been exercised, despite extenuating
circumstances that clearly argue for such a waiver from the
immunization requirement. No where is this failure to exercise that
authority more damaging than in the area of foreign-borne orphans being
adopted by U.S. citizens.
Neither Senator Kyl nor I would argue that immigrants with serious
communicable diseases should be allowed into the United States. What we
are saying is that children whose medical conditions cannot be
accurately determined without a more thorough examination than can be
administered in their home country should not be subjected to
vaccinations that may trigger unforeseen reactions, for instance, from
allergies to a specific serum. Additionally, other medical conditions
may exist that make immunization at a specific time unadvisable, as
would be the case with a child suffering from influenza. All this
amendment does is tell the Attorney General to do what common sense
dictates should be done anyway: not subject children to vaccinations to
which their systems may not be immediately adaptable.
Mr. President, I urge my colleagues to support this amendment. It
would do nothing that could pose a health risk to the American public;
it only eliminates the risk to children, often from countries with far
more primitive health care than is available here, of immunizations if
their individual medical conditions indicate such treatment would pose
a serious risk to the health of the child.
amendment no. 1016
Sec. . The second proviso of the second paragraph under
the heading ``OFFICE OF THE CHIEF SIGNAL OFFICER.'' in the
Act entitled ``An Act Making appropriations for the support
of the Regular and Volunteer Army for the fiscal year ending
June thirtieth, nineteen hundred and one'', approved May 26,
1900 (31 Stat. 206; chapter 586; 47 U.S.C. 17), is repealed.
____
amendment no. 1017
(Purpose: To exclude from the United States aliens who have been
involved in extrajudicial and political killings in Haiti)
At the appropriate place, insert the following:
[[Page S8086]]
SEC. . EXCLUSION FROM THE UNITED STATES OF ALIENS WHO HAVE
BEEN INVOLVED IN EXTRAJUDICIAL AND POLITICAL
KILLINGS IN HAITI.
(a) Grounds for Exclusion.--None of the funds appropriated
or otherwise made available in this Act shall be used to
issue visas to any person who--
(1) has been credibly alleged to have ordered, carried out,
or materially assisted in the extrajudicial and political
killings of Antoine Izmery, Guy Malary, Father Jean-Marie
Vincent, Pastor Antoine Leroy, Jacques Fleurival, Mireille
Durocher Bertin, Eugene Baillergea, Michelange Hermann, Max
Mayard, Romulus Dumarsais, Claude Yves Marie, Mario Beaubrun,
Leslie Grimar, Joseph Chilove, Michel Gonzalez, and Jean-
Hubert Feuille;
(2) has been included in the list presented to former
President Jean-Bertrand Aristide by former National Security
Council Advisor Anthony Lake in December 1995, and acted upon
by President Rene Preval;
(3) was a member of the Haitian presidential security unit
who has been credibly alleged to have ordered, carried out,
or materially assisted in the extrajudicial and political
killings of Pastor Antoine Leroy and Jacques Fleurival, or
who was suspended by President Preval for his involvement in
or knowledge of the Leroy and Fleurival killings on August
20, 1996;
(4) was sought for an interview by the Federal Bureau of
Investigation as part of its inquiry into the March 28, 1995,
murder of Mireille Durocher Bertin and Eugene Baillergea,
Jr., and was credibly alleged to have ordered, carried out,
or materially assisted in those murders, per a June 28, 1995,
letter to the then Minister of Justice of the Government of
Haiti, Jean-Joseph Exume;
(5) was a member of the Haitian High Command during the
period 1991 through 1994, and has been credibly alleged to
have planned, ordered, or participated with members of the
Haitian Armed Forces in--
(A) the September 1991 coup against any person who was a
duly elected government official of Haiti (or a member of the
family of such official), or
(B) the murders of thousands of Haitians during the period
1991 through 1994; or
(6) has been credibly alleged to have been a member of the
paramilitary organization known as FRAPH who planned,
ordered, or participated in acts of violence against the
Haitian people.
(b) Exemption.--Subsection (a) shall not apply if the
Secretary of State finds, on a case-by-case basis, that the
entry into the United States of a person who would otherwise
be excluded under this section is necessary for medical
reasons or such person has cooperated fully with the
investigation of these political murders. If the Secretary
of State exempts any such person, the Secretary shall
notify the appropriate congressional committees in
writing.
(c) Reporting Requirement.--(1) The United States chief of
mission in Haiti shall provide the Secretary of State a list
of those who have been credibly alleged to have ordered or
carried out the extrajudicial and political killings
mentioned in paragraph (1) of subsection (a).
(2) The Secretary of State shall submit the list provided
under paragraph (1) to the appropriate congressional
committees not later than 3 months after the date of
enactment of this Act.
(3) The Secretary of State shall submit to the appropriate
congressional committees a list of aliens denied visas, and
the Attorney General shall submit to the appropriate
congressional committees a list of aliens refused entry to
the United States as a result of this provision.
(4) The Secretary of State shall submit a report under this
subsection not later than 6 months after the date of
enactment of this Act and not later than March 1 of each year
thereafter as long as the Government of Haiti has not
completed the investigation of the extrajudicial and
political killings and has not prosecuted those implicated
for the killings specified in paragraph (1) of subsection
(a).
(d) Definition.--In this section, the term ``appropriate
congressional committees'' means the Committee on
International Relations of the House of Representatives and
the Committee on Foreign Relations of the Senate.
Mr. DeWINE. Mr. President, my amendment excludes Haitians from the
U.S. who have been involved in extrajudicial and political killings in
Haiti. Specifically, it does this by denying funds for the issuance of
visas to these persons.
There have been numerous cases of politically-motivated
assassinations in Haiti. Some of these extrajudicial killings occurred
while former President Jean-Bertrand Aristide was in exile. Many others
took place after he returned to power. Unfortunately, these killings
have continued after Mr. Aristide left office and Rene Preval became
President.
The Haitian Government has assigned over eighty extrajudicial and
political killing cases to the Special Investigative Unit. The Haitian
Government claims that they have fired several government employees who
are suspects in these killings.
But the sad fact remains that to date, no one has been convicted for
any of these assassinations. Simply stated, there has been no
substantial progress in these investigations.
We need to encourage the Haitians to bring these killers to justice.
We need to let them know that these killings cannot be tolerated.
My amendment denies funding for the issuance of visas to those who
have been credibly alleged to have ordered, carried out, materially
assisted, or sought to conceal these extrajudicial and political
killings. The amendment exempts persons for medical reasons, or if they
have cooperated fully with the investigation of these political
murders.
The legislation also includes a reporting requirement. The
Administration would be directed to submit, to the appropriate
congressional committees, (1) a list of those who have been credibly
alleged to have ordered or carried out the extrajudicial and political
killings; (2) a list of those refused entry to the United States as a
result of this provision; and (3) a report on this matter, to be
submitted once each year, until such time as the Government of Haiti
has completed the investigation of these extrajudicial and political
killings and has prosecuted those implicated in these murders.
It is an unfortunate reality that political violence has been a way
of life in Haiti. Too many Haitians have died due to acts of political
violence. The adoption of this amendment will not solve their problems
overnight. But it can help. I believe this legislation sends a strong
signal that violence must not be used as a political tool in Haiti. It
also sends a message to the Haitians that we will vigorously support
those who want to end political violence and create a lasting society
of peace and prosperity in Haiti.
Mr. President, I urge the adoption of this amendment.
amendment no. 1018
(Purpose: To improve the bill)
On page 114, strike lines 14-23.
____
amendment no. 1019
(Purpose: To delay the effective date of the amendments made by section
233 of the Antiterrorism and Effective Death Penalty Act of 1996)
At the appropriate place in title I of the bill, insert the
following:
Sec. 1 . Section 233(d) of the Antiterrorism and Effective
Death Penalty Act of 1996 (110 Stat. 1245) is amended by
striking ``1 year after the date of enactment of this Act''
and inserting ``October 1, 1999''.
____
amendment no. 1020
On page 139, after line 13 insert the following:
``Gambling Impact Study Commission
salaries and expenses
For necessary expenses of the National Gambling Impact
Study Commission, $1,000,000, to remain available until
expended: Provided, That funds made available for this
purpose shall be taken from funds made available on page 23,
line 21.''
____
amendment no. 1021
At the appropriate place in the bill, insert the following:
Provided further, that not to exceed $2,000,000 may be made
available for the 1999 Women's World Cup Organizing Committee
cultural exchange and exchange related activities associated
with the 1999 Women's World Cup.''
Mr. GREGG. I ask unanimous consent that Senator Kerry of
Massachusetts and Senator Feinstein be added as cosponsors to Senator
Steven's USIA amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GREGG. Mr. President, at this point I wish to thank, obviously,
my staff and the minority staff for the extraordinary amount of time
and energy they have put into this bill. They have been here all day
and have done an incredible amount of work in an extremely complex
situation, I would say, on a number of occasions. How they sort it all
out, I am not sure. But they have and they have done it beautifully. I
thank them for their energies. I thank the ranking member for all his
time and patience in this exercise, which has been reasonably
complicated but very successful as a result of all this.
Mr. HOLLINGS. Mr. President, I am really grateful to the
distinguished chairman, the Senator from New Hampshire, for his
leadership. His staff has been very professional and cooperative. It is
truly a bipartisan measure. It has been a privilege and pleasure to
work with him. Obviously, my staff has
[[Page S8087]]
been working around the clock, and I am really indebted to them. I
thank the distinguished chairman.
Mr. GREGG. I thank the Senator for all his work.
____________________