[Congressional Record Volume 143, Number 118 (Tuesday, September 9, 1997)]
[Senate]
[Pages S8989-S9013]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND 
               RELATED AGENCIES APPROPRIATIONS ACT, 1998

  The Senate continued with the consideration of the bill.
  Mr. GORTON. Mr. President, what is the order of business?
  The PRESIDING OFFICER. The agreement was reached with respect to 
amendment No. 1122.
  Mr. GORTON. Mr. President, that agreement was in error. It was a 
mistake on the part of Senator Specter. I ask unanimous consent that 
the agreement be switched to amendment 1076.
  The PRESIDING OFFICER. Is there objection?
  Mr. GORTON. 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. GORTON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Santorum). Without objection, it is so 
ordered.
  Mr. GORTON. Mr. President, I withdraw my previous request for 
unanimous consent, and I now ask unanimous consent that the debate 
limitation with respect to amendment No. 1122 be vitiated, and that 
there now be 60 minutes for debate prior to a motion to table amendment 
No. 1076. I further ask unanimous consent that following the expiration 
or yielding back of time, the amendment be temporarily laid aside, the 
Senate then proceed to vote on the McCain motion to waive with respect 
to amendment No. 1091, to be immediately followed by a vote on a motion 
to table the Gorton amendment No. 1076.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GORTON. Speaking on behalf of the majority leader, I now give 
notice

[[Page S8990]]

that it looks as though there will be two stacked votes after the 
debate on this amendment; therefore, in proximately 1 hour.


                    Amendment No. 1076, as Modified

  Mr. GORTON. Mr. President, what is the subject matter before the 
Senate?
  The PRESIDING OFFICER. Amendment No. 1076 is the pending question.
  Mr. GORTON. Mr. President, just a few short weeks ago, Congress and 
the President of the United States agreed to provide $48 billion over 
the course of the next 10 years as an incentive to States to provide 
health care coverage to uninsured, low-income children. To receive this 
incentive, States must expand eligibility levels to children living in 
families whose incomes are up to 200 percent of the Federal poverty 
level.
  Mr. President, this provided a real anomaly, a true injustice, with 
respect to the State of Washington, and to varying extents to the 
States of Hawaii, Minnesota, Rhode Island, Tennessee, and Vermont as 
well. In the case of each of these States, though I must speak most 
specifically to my own, State legislatures had already expanded the 
eligibility for Medicare to children in families with incomes up to 
roughly 200 percent of the poverty level.
  Most of the other States, the States that were designed to be 
incentivized, have mandatory levels of 100 to 133 percent of the 
poverty level in incomes and, therefore, in many cases would get these 
incentives for a very significant expansion of Medicare eligible 
children for these Kidcare programs.

  The net result, however, was that for States like the State of 
Washington, the fact that they had been more generous, more 
progressive, more liberal, whatever one wishes to call it on their own, 
resulted in a dramatic penalty. Our taxpayers, of course, will 
contribute to this expansion. We will, of course, be providing Kidcare 
to exactly the same group of children that all other States will be 
providing under the Kidcare amendment, but we will not be eligible for 
the incentive.
  Mr. President, if that were allowed to stand, it would be a dramatic 
lesson to every 1 of the 50 States of the United States in dealing with 
every program for which there is Federal assistance--every program--the 
expansion of which is debated here, to make absolutely certain that 
they did not expand those programs themselves, because if they just 
waited, they would get more money from the Federal Government to do so; 
and if they went ahead on their own, they would be penalized.
  That is exactly what has happened to us here. Our argument for more 
equitable treatment met with the approval of Members of the Senate when 
we were debating this issue, and our States were at least in part 
compensated for the work that they had already done. With the exception 
I think of a single State in the group of five that I have named, that 
benefit disappeared in the ultimate conference committee report.
  Justice would require, it seems to me, Mr. President, that each of 
these States be made whole, receive the same Federal subsidy for all of 
its children who live in families between the previous Federal 
requirement at 100 to 133 percent and the 200 percent. Because of 
opposition, however, we do not ask that in this amendment.
  All this amendment does is to say that the allocation that is made to 
all States, on the basis of the number of eligible children, be 
available for the State of Washington and for these other States to use 
to the extent that we have children living in families at less than 200 
percent of the poverty level who are of course eligible under our law 
but did not avail themselves of the opportunity to become insured.
  In other words, like the other States, we will get the incentive only 
for children who are not eligible now and who take advantage of the 
availability of such insurance in the future. Because allocations are 
made by the Federal Government on the basis of eligibility and not this 
precise use, and you just drawdown on the use, this amendment will not 
affect--I want to make this absolutely clear to every Member of the 
Senate--will not affect the allocations and the ability to use this 
program by any other State in the United States.
  We are not raiding anyone else's money. The eligibility is created by 
what amounts to at least the State entitlement will only be using the 
allocation that we already get in theory but cannot use in practice. No 
one else will lose anything as a result.
  Just to make certain that Members do not say this is simply a 
statement by the Senator from Washington without any basis, I ask 
unanimous consent a memorandum addressed to me from the Congressional 
Research Service dated yesterday expressing exactly the same view be 
printed in the Record at this point.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                   Congressional Research Service,


                                          Library of Congress,

                                Washington, DC, September 8, 1997.


                               memorandum

     To: Honorable Slade Gorton Attention: Kristen Michel.
     From: Jean P. Hearne, Consultant, Education and Public 
         Welfare Division.
     Subject: S. 1061--Amendment to Allow Title XXI Funding for 
         Certain Children.
       As you requested, I have reviewed your amendment to Title 
     XXI, the State Child Health Insurance Program. The amendment 
     would allow states to use Title XXI funding for the costs of 
     covering under Medicaid certain waivered low-income children 
     whose income is below the Medicaid applicable income level in 
     the state but above the mandatory Medicaid income level for 
     children. These waivered low-income children are defined as 
     those living in states who have incomes at or above 200% of 
     poverty and who had previously not been covered by Medicaid 
     as of April 15, 1997. The provision would allow such children 
     to qualify for enhanced federal matching funds for the cost 
     of their Medicaid services.
       The amendment would not change or otherwise affect the 
     allocation of Title XXI funds to states but changes the way 
     such funds may be used. The amendment would allow for certain 
     states' allotments to be spent on children who are currently 
     eligible for Medicaid coverage in such states but are not 
     participating in the program.

  Mr. GORTON. I will read the end of that memorandum: ``The amendment 
would not change or otherwise affect the allocation of Title XXI funds 
to states but changes the way in which state funds may be used.''
  Will not change the allocation. It will change the way in which they 
can be used in my State and I believe to a greater or lesser extent, 
three other States.
  I simply want to repeat for the purposes of this argument, these are 
States that did what the policy behind Kidcare in effect requires of 
other States before it was required by this Congress and by the Federal 
Government. These are States that went out of their way to try to see 
to it that health insurance was available to these relatively low-
income families for their children. It is unconscionable, I believe, 
Mr. President, that we should say because you did the job we came to 
somewhat later, earlier, you are just out of luck. You can continue to 
pay for it yourself. You will not get the incentive that Kidcare 
provided, so on behalf of my own State and on behalf of a few others, 
without penalizing any other State in the Union, I am asking for the 
reasonable treatment, the fair treatment, that this amendment provides.
  I suggest the absence of a quorum, and I ask unanimous consent it be 
charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The 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, it is very unusual for me to come to 
the floor to oppose an amendment by my two very distinguished 
colleagues from the State of Washington, Senator Gorton and Senator 
Murray. I respect them both immensely. I have worked with them both 
closely. In offering this amendment, I understand what it is they are 
trying to do. There are many who look at States like Oregon and the 
State of Washington and Wisconsin and Minnesota and say these are truly 
progressive States, their governments are doing things which other 
State governments ought to be doing. Philosophically, therefore, it 
would be natural for them to come to the floor to ask for some kind of 
exemption with respect to the children's health care bill.
  I come to the floor as somebody who has worked for a very long time 
on

[[Page S8991]]

health care, and who has worked virtually full time on this children's 
health insurance bill. This legislation is a huge accomplishment in 
terms of this Congress and the President. The children's health 
initiative is the biggest thing to happen in health care since the mid-
1960's. Because of my experience in working on health care, and the 
children's initiative in particular, I am extremely leery about opening 
up the children's health legislation for amendment. I know that the 
chairman of the Senate Finance Committee, Senator Roth, has said 
exactly that, and I know Senator Moynihan has said exactly that. I am 
not sure there are many people who have talked against this amendment, 
which worries me because, on the face of it, it sounds like a 
reasonable request, a progressive State asking for an exemption because 
they are doing things at 200 percent of poverty, which most of the rest 
of the States are not.
  Mr. President, I can tell you that this was a very difficult 
agreement to reach, the children's health insurance bill. There was the 
whole issue of whether funding should be made available for health care 
services as opposed to health care insurance? There was the whole issue 
of whether the Federal Government should have a say, since it is 
Federal dollars, in terms of how the money should be spent. The benefit 
package, which is something I care enormously about, in the children's 
health care bill is not as good as Medicaid, which is already currently 
available to millions of children in this country. And there was the 
question that I fought for, as did others, and didn't succeed, on 
whether vision and hearing should be included. You can make an 
enormously powerful case that if you don't provide hearing services, 
then you won't catch the problems children are experiencing in hearing, 
who then will stop learning. And, if you don't offer vision care, all 
kinds of other things happen. It was a very controversial bill. It was 
reached with great difficulty; the culmination and the consensus was 
reached with very great difficulty.
  I firmly believe it would be very unwise for us to agree to the 
Gorton-Murray amendment simply because there will be a lot of other 
people following their lead, and leaders of other States will be 
following them through the door saying they do 200 percent of poverty, 
but we do 185 percent or 190 percent of poverty, or we are going to be 
doing it next year. There will be this and that, and all of a sudden 
the $24 billion will be quickly eroded.
  Now, am I saying that as a knee-jerk response against what is a very 
good-faith effort on the part of the Senators from the State of 
Washington to improve their situation? No. I am opposing the amendment 
out of a genuine concern, accompanied by some degree of terror that, if 
this amendment passes, there will be many others that follow. One can 
almost say that, for example, had there not been votes this evening, I 
was meant to go to West Virginia to discuss with the Governor, Cecil 
Underwood, a Republican, how he and I were going to work together to 
help implement--to make sure that the children's health insurance bill 
works successfully in West Virginia. We don't do things as generously 
as the State of Washington because we cannot, we don't have the money. 
My point is that the children's health program is just being 
implemented. The ink is barely dry. The implementation date has not 
even arrived yet.
  There is a very genuine concern on the part of those of us who care 
about health care that if we start modifying the agreement on 
children's health that was reached by the Congress and the White House 
that we will be in trouble. There are still 10 million children in this 
country that do not have health insurance. I remember there was common 
wisdom on the floor of the Senate that if we got the $16 billion for 
children's health insurance in the budget we could insure 5 million 
uninsured children. And if we got extra money--$8 billion or more from 
the tobacco tax--then we could insure all of the 10 million children. 
That was the hope for a period of time on this floor. As it turns out, 
it is much harder. It is much more difficult. And even with the full 
$24 billion we may only be able to reach 3.6 million American children 
who do not now have health insurance. In fact, the Congressional Budget 
Office, I think in responding to the submission of this amendment to 
them by Senators Gorton and Murray, indicated that, if this amendment 
is passed, it will result in 30,000 fewer children receiving health 
insurance coverage--not health services but health insurance coverage. 
Health insurance coverage is all that matters. That is the wraparound. 
That is the safety net. That is what guarantees your situation for the 
future. If we adopt this amendment, others will want special treatment 
and it would not be long before the $24 billion was eroded away.
  So, again I emphasize the respect that I have for the two Senators 
from Washington. I emphasize that they have every right, just on the 
basis of the progressiveness of their State, to request this kind of an 
amendment. But, if they do, there are going to be many States--in the 
South, the Midwest, the Northeast, and the West--that are going to be 
losing as a result of it because others will come in with other 
requests, and gradually the $24 billion in new funding disappears.
  So as somebody who cares passionately about health insurance being 
available to all 10 million children, and who a few years ago fought 
for health insurance to be available to 37 million Americans--now 40 
million--who don't have it, I am rejoicing in the 3.6 million children 
who will get health insurance under the children's health insurance 
bill. But I do not want to see any fewer get it.
  Therefore, I reluctantly, but energetically, oppose this amendment. I 
hope that my colleagues will understand that there are a lot of 
children across America that need to be protected and can best be 
protected by defeating this amendment.
  I thank the Presiding Officer.
  I yield the floor.
  I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GORTON. 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. GORTON. Mr. President, it is difficult for me to express my 
disappointment in the position taken by my friend from West Virginia, 
although across party lines we have become so close personally to one 
another in a longtime, longstanding debate of great importance, that it 
always seems to me emotionally at least that we are likely to agree on 
other issues as well. I am greatly disappointed that we don't on this 
one.
  He tells me that he had hoped to go and visit with the Governor of 
West Virginia on this subject today. Yet, the position he takes here is 
that while West Virginia should be--and I agree with him should be--
entitled to an incentive for all of the new children who become 
eligible for Kidcare because their families' incomes are not more than 
200 percent of the poverty line, that not only should the State of 
Washington be deprived of that incentive for children in exactly the 
same position who receive Kidcare through the State at the present time 
but that we shouldn't even be able to get the incentive for those who 
do not yet receive it who are in precisely the position of the children 
in West Virginia for whose circumstances he so eloquently speaks. I 
find it is hard to see that anyone could justify a situation such as 
that. But that is the situation in the bill as it was passed, not the 
situation as it was written here in the Senate.

  We had the Senate version--Senator Murray and I. With this amendment 
it would have been unnecessary. The Senator expresses apprehension that 
if this amendment passes there will be many more States with requests.
  But I simply say to the Senator that we already have an agreement on 
the amendments that are going to be considered on this bill. Someone 
may do it someday in the future in some other set of circumstances but 
not on the bill that deals with Medicaid and Medicare for the whole 
next year.
  In any event, the idea that you can't do something that is right 
because it might create a precedent in the future to do something that 
is wrong is not a form of argument that seems to me to be especially 
persuasive. Since it is impossible for that to happen in connection 
with this bill, it perhaps has even less weight.

[[Page S8992]]

  Obviously, there are differences with respect to this amendment. I 
regret that I have fought, and we worked diligently to see whether or 
not we couldn't come up with something that simply could be agreed to, 
as many other amendments on this bill have--we have not obviously been 
able to do that. I greatly regret it. But I greatly regret the position 
on the part of other Senators that, we have ours, it is tough on you, 
you don't need it.
  With that, Mr. President, I yield the floor.
  Mr. ROCKEFELLER addressed the Chair.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, will the Senator from Washington 
yield? I am not asking him to yield, but I simply would like to reply 
to what it was that he said.
  The last thing in the world that I want the Senator from Washington, 
or anybody else, to think is we have ours, let others take care of 
their own.
  First, I think the Senator from the State of Washington knows that is 
not the kind of legislator I am, in the first place. And, second, this 
is not about we have ours, and let others take care of their own.
  This is a question of trying to keep stitched together an extremely 
fragile program about which there was enormous controversy. Enormous 
heat was generated. I was actually almost surprised when it passed not 
only in the Congress but was signed by the President. I would simply 
say that I understand that the UC agreement on this bill prevents 
Senators from offering similar amendments on this bill. But as a 
Senator who is on the Senate Finance Committee, the Governors were 
always asking for more ways to do things, new ways to get money, more 
flexibility. The list of demands kept growing.
  Yes, I will fight for the children of West Virginia. But what I am 
thinking about here really is holding this program together, giving it 
a chance to work, not precluding the idea of the Senators from the 
State of Washington being able to introduce this kind of amendment a 
year or so from now, but simply let us get the children's health 
program implemented. Let us have a chance to see how it is going before 
we start exempting this situation and then that situation.
  I hope that will be cleared by the parties.
  Mr. KENNEDY. Mr. President, will the Senator be good enough to yield?
  Mr. ROCKEFELLER. Of course.
  Mr. KENNEDY. I have listened to the Senator from West Virginia. I 
agree with his position. I heard earlier today Chairman Roth's 
opposition to this effort. And I understand other members of the 
Republican leadership also intend to speak on their concerns and 
opposition to this amendment.
  Even under the proposal as it was recently passed, we will only reach 
about half of the currently uninsured children. As the Senator 
remembers, we had a more expansive and robust program that might have 
provided the kind of extensive coverage that the Senator from 
Washington was talking about. And with the work of the Senator from 
West Virginia and the Senator from Rhode Island, we explored options to 
expand coverage among working families in a manner that would have also 
helped states that have already acted to expand Medicaid eligibility 
guidelines. However, that proposal failed, and the program signed into 
law was designed instead to fit on top of what each state is currently 
doing. The new $24 billion investment in children's health is supposed 
to provide assistance to the 10 million children in working families 
whose parents are unable to afford health insurance and are not 
currently eligible for Medicaid.

  So, with all due respect, it is difficult to argue in the abstract 
that we are pitting one type of uninsured child against another. The 
point of this new program is to build upon current state efforts to 
work up the income scale from what is currently being done in a state 
to ensure that the sons and daughters of working parents receive 
coverage. We are talking about teachers, nurses aides, janitors, and 
other professionals whose salaries are too low to enable them to 
purchase health insurance but too high to qualify for Medicaid. These 
are hard-working Americans who put in 40 hours a week, 52 weeks of the 
year.
  I would join with the Senator from Washington and the Senator from 
West Virginia to see an expansion of this program.
  Through the work of the Senator from West Virginia, Senator Roth, 
Senator Moynihan and others in that conference, we were able with the 
leadership of the President to get a good program enacted. But we are 
still probably going to need to enhance that program or strengthen it 
down the road.
  As I understand the Senator's position, we ought to put the new 
program in place, find out what those needs are, and then I am sure the 
Senator from West Virginia will be a leader here in the Senate to make 
sure that we are going to help and assist families in the State of 
Washington, West Virginia, or Massachusetts to try to make sure that 
the sons and daughters of working families that are not covered are 
going to be able to get some coverage. Is that correct?
  Mr. ROCKEFELLER. In response to the Senator, I wholly agree with what 
he said, by trying to make two points. One is that when we were first 
contemplating this children's health insurance bill and the whole key 
concept of maybe getting as much as $24 billion, or even perhaps more 
than that, it was sort of understood that first we were going to insure 
5 million children of the families that had the least resources to buy 
health insurance, and then we would move on to those who had a little 
bit more resources but still would not be able to afford buying health 
insurance from the private market for their children. We were talking 
about 10 million children. There was a lot of opposition to insuring 10 
million children. It wasn't 40 million Americans, but it was 10 million 
children. Then even with the $24 billion that was applied to the 
program we are now faced with the prospect of maybe only being able to 
cover 3.6 million children, leaving, therefore, many of the 10 million 
uncovered.
  I think the Senator is also correct when he says this in no way 
precludes--I said that in my remarks earlier--the State of Washington, 
which has clearly moved out ahead of others, from, once the ink is dry, 
once we have seen a little bit more about how this works out, to be 
able to come back based on the ability of this particular State and 
others to be able to do more.
  But at this point, I am very, very nervous given, frankly, the rather 
capacious nature of the Governors in trying to bring this money to 
them, having to put in fairly strict guidelines about what could be 
spent on health care services as opposed to health interests, which 
regrettably are different things. I really want to see the program 
work, and I think we need to give it a chance to work and then come 
back. And I will be the first to support the State of Washington and 
others that have done more than other States. But let us take this 
incredibly, frankly, put-together program and let it work before we 
open more doors.
  Mr. KENNEDY. I thank the Senator.
  The PRESIDING OFFICER (Mrs. SNOWE). The Senator from Massachusetts.
  Mr. KENNEDY. How much time is there?
  The PRESIDING OFFICER. The Senator has 2 minutes 26 seconds.
  Mr. KENNEDY. What is the regular order at that time?
  The PRESIDING OFFICER. The Senator from Washington has 5 minutes, and 
then the Senate will vote on a motion to table.
  Mr. KENNEDY. I see the other Senator from Washington here who I know 
has an interest. I will withhold my remarks to permit her to speak.
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. I thank the Chair.
  I rise in support today of the pending Gorton-Murray amendment. I 
think, as we are all aware, President Clinton recently signed into law 
legislation that really calls for the largest expansion of children's 
health care since the creation of Medicaid in 1965. I worked very hard 
on this initiative with my colleagues, Senator Kennedy and Senator 
Rockefeller. I was really thrilled to be a part of this historic effort 
to provide real health care security to the most precious and 
vulnerable children in our Nation. I think that is an accomplishment of 
which we can all be

[[Page S8993]]

very proud, and it will not only provide health care security for our 
children but economic security and peace of mind for millions of hard-
working parents as well.
  I know the benefits of expanding health care benefits for children 
because my home State of Washington took a similar step back in 1994. 
The State took the lead because it was concerned about the future of 
its children and it was expecting us to enact a comprehensive national 
health security act for Americans at that time. The State of Washington 
wanted to be sure that our children were the first priority in any 
health care security efforts, and I applauded the action by the State 
and am pleased to report that all children through the age of 18 in 
Washington State who live in families up to 200 percent of the Federal 
poverty level are covered. The State did not have to take that step and 
expanded their Medicaid program beyond any Federal mandatory level. As 
a result of that action, 427,000 children are now guaranteed access to 
quality, affordable health care. This is a fact that I take a great 
deal of pride in, and I know that our public health system has 
benefited.
  In the last Congress, when I started working to expand health care 
insurance for 10 million children, I was assured that any expansion 
would benefit all States and that those States that had expanded their 
programs up to 200 percent of poverty would not be treated differently. 
I had seen the success in my State and seen the benefits of providing 
comprehensive health care to uninsured children. As a result, I worked 
hard to fight for nationwide expansion.
  During negotiations, I worked with several other Members to ensure 
that the amount of funding for children's health care was increased. I 
supported efforts in the Chamber to fund this expansion at $24 billion, 
providing the greatest amount of resources available that will ensure 
the greatest number of children are insured.
  The final budget reconciliation legislation was a major victory for 
children and families in this country, but unfortunately my State of 
Washington will not benefit to the degree I had hoped. My State and 
others that made the commitment to their children previously and 
provided coverage up to 200 percent of the Federal poverty level will 
not be able to access the $24 billion that was provided for in this 
bill. The State will have to expand their current program by 50 percent 
in order to access any of those new funds. I am hopeful that the State 
will act to cover more children, if the resources are available at our 
State level, but in the immediate future Washington State will not be 
able to provide additional coverage, meaning that the intent of the 
legislation to cover more uninsured children will not be met in my 
State. We have made great strides in covering uninsured children, but 
we still have over 300,000 children who have no health insurance. We 
should be making every effort to encourage our States to expand the 
number of children covered, not discourage them from doing so.

  The Gorton amendment would only allow States that have covered 
children up to 200 percent of the Federal poverty level to access the 
children's health block grant money to cover children from 133 percent 
to 200 percent of the poverty level, meaning that States could access 
these funds for new children that are not currently required to be 
covered. Again, this would apply only to new children as of October 1, 
1997. Any child currently enrolled up to 200 percent would remain in 
the Medicaid Program. We are simply trying to treat new children in 
Washington State the same as they will be treated in Idaho or Montana 
or any other State. A new ensured child is a new ensured child 
regardless of which State they live in.
  I have heard some of the concerns about this amendment and the impact 
that it could have on States that are currently at 200 percent. Let me 
assure my colleagues that, unfortunately, there are not many at this 
level. I have also heard about the substitution effect. Included in 
this amendment is a requirement that the State must certify that the 
child has not been insured in the past. We are only talking about an 
insured child as of October 1 of this year.
  Finally, this amendment only applies to those new children that the 
State made the decision to cover, the optional children. Those below 
the 133 percent will not be included for any match purposes.
  My colleagues should also keep in mind that there is already strong 
maintenance-of-effort requirements in the act which apply to the States 
as well. I listened to my colleagues, Senator Kennedy and Senator 
Rockefeller. I understand their concerns and I want to remind them that 
we all share the same goal. I hope we can continue to work on this so 
that the children in my State are treated as equally as other children 
across the Nation regarding that $24 billion. Our Governor has told us 
he needs this amendment to look forward to ensuring new children. I 
hope we can continue to work together to make sure that happens for the 
children of Washington State as well as the rest of this country.
  I yield the remainder of my time to Senator Gorton.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.


               Amendment No. 1076, as modified, withdrawn

  Mr. GORTON. Madam President, my colleague from the State of 
Washington and I have worked diligently on behalf of what we consider 
to be equity to our State and to two or three other States as well. It 
had been our firm contention and our fond hope that we would be able to 
secure the passage of this amendment by unanimous consent. It is quite 
obvious that we cannot. Each of us disagrees with the rationale 
presented by the other side on the amendment. But our preference is to 
try to live and fight this issue another day, and for that reason I ask 
unanimous consent to withdraw the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 1076), as modified, was withdrawn.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oklahoma.


                           Amendment No. 1109

  Mr. NICKLES. Madam President, earlier today the Senate adopted an 
amendment No. 1109, an amendment that I introduced along with Senator 
Roth, Senator Moynihan, Senator Grams from Minnesota, and Senator 
Hagel, that deals with Social Security Administration personal earnings 
and benefit estimate statements [PEBES].
  The amendment that we passed requires the Social Security 
Administration to include the employee contributions as well as 
employer contributions on the PEBES. Right now, when those statements 
are compiled, they show employee contributions but not employer 
contributions. Due to the support of the chairman of the Finance 
Committee and Senator Moynihan, these statements in the future will 
show not only what the individual contributed but also what the company 
contributed and what their future anticipated benefits will be.

  I think it is a good amendment. It is a disclosure amendment. A lot 
of people are not aware of the fact that not only do they contribute 
7.65 percent of their payroll for Social Security and Medicare, but 
their employer matches it, for a total of 15.3 percent of payroll. This 
personal benefit statement will be sent to every eligible working 
American from Social Security beginning in fiscal year 2000. Americans 
will receive this financial disclosure every year, so people will know 
what they have contributed to Social Security and what their employer 
has contributed as well.
  I thank my colleagues for supporting this amendment, especially the 
chairman and ranking member of the Finance Committee and Senator 
Specter.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Madam President, I would like to have consent to be able 
to speak for 7 minutes.
  The PRESIDING OFFICER. The Senator has the right to speak.
  Mr. KENNEDY. I thank the Chair.
  Madam President, there are items that we will be dealing with--the 
McCain amendment, the Durbin amendment, and also the other Gorton 
amendment which we will be voting on in just a few moments--and I would 
like to speak very briefly on each of them.
  I strongly support the Durbin amendment which will repeal language in 
the

[[Page S8994]]

budget agreement that deducts the cigarette tax devoted to children's 
health from the amount of the settlement.
  In effect, this last-minute loophole inserted in the budget bill by 
Big Tobacco in the dead of night behind closed doors reduced the value 
of the settlement by $50 billion. It was one of the most devious and 
reprehensible actions that I have witnessed in my years as a Senator.
  The lesson is clear. When tobacco issues are debated in the public, 
the American people win. But when the debate moves into the backrooms 
of Congress, the tobacco industry's interests come first, and the 
public interest comes last.
  It's time that Congress stood up to the tobacco industry and said 
``no'' to Joe Camel and the Marlboro Man. This tobacco loophole has no 
place in the budget agreement, I urge my colleagues to support the 
Durbin-Collins amendment.
  I strongly oppose the McCain amendment which would have a devastating 
effect on our essential efforts to address physician work force issues.
  Medicare pays approximately $9 billion per year for graduate medical 
education. Over the years, these payments have been a strong incentive 
for hospitals across the country to increase the size of their 
residency programs. The increase has resulted in turn in widely 
reported concerns about an oversupply of physicians. The Institute of 
Medicine, the Pew Health Professions Commission, the Association of 
American Medical Colleges, and the Council on Graduate Medical 
Education have all emphasized the urgency of dealing effectively with 
this problem, and Congress can't ignore it.
  In addition, the longstanding hospital reimbursement policies have 
been more generous for specialist residents than primary care 
residents. As a result, most of the growth in the number of residents 
has come in specialist positions, not in primary care, and has produced 
an extremely serious oversupply of specialists.
  Congress addressed these issues in the balanced budget legislation 
enacted this summer. We expanded the New York graduate medical 
education demonstration project into a national program to encourage 
teaching hospitals across the country to adjust the numbers and types 
of physicians they train. The program provides incentive payments to 
teaching hospitals to voluntarily reduce the number of medical 
residents in training, and to increase the proportion of residents 
training in primary care.
  The program pays hospitals for residents who are not being trained. 
But the payments are reduced over time and phased out completely after 
5 years. These payments help cushion the blow for institutions heavily 
dependent on the Federal funds, and allow an orderly downsizing of 
residency training programs, with minimal disruption to the provision 
of health services.
  The McCain amendment, however, would eliminate incentives for 
hospitals to downsize the overall number of resident positions and 
recalibrate the number going into primary care. The glut of physicians 
and the imbalance between general practitioners and specialists would 
go unaddressed.
  The McCain amendment could also have a harmful effect on rural and 
underserved areas. The budget agreement established a hospital-specific 
cap on residents, based on 1996 levels. It gave the Secretary of the 
Department of Health and Human Services the authority to lift the cap 
for residency programs in rural and underserved areas if the total 
number of positions does not exceed the national cap. By eliminating 
these payment incentives under the McCain amendment, large residency 
programs will no longer downsize. This result will hamstring efforts to 
establish new residency programs to address the health care needs 
in rural and underserved areas due to the overall cap.

  Finally, the amendment would result in over $300 million in lost 
savings, according to CBO estimates.
  A critical part of health reform is responsible action to reduce the 
over-supply of physicians and correct the imbalance between primary 
care practitioners and specialists. The Budget Act is helping us put a 
more effective policy in place, and we should not reverse the progress 
we have made. I urge my colleagues to reject the McCain Amendment.
  The second Gorton amendment hurts students and goes against the 
Nation's commitment to helping the poor and educationally disadvantaged 
students who need our strongest support.
  Although meaningful education reform happens not at the Federal 
level, or even at the State level, but at individual schools, the State 
and Federal Governments are important partners in helping to improve 
education for all children. We all need to work together to improve the 
Nation's public schools.
  This amendment does not support meaningful reform. Instead, it shifts 
Federal dollars away from the neediest communities to the wealthier 
ones. It guts carefully crafted and widely supported programs with 
specific purposes. And it undermines the State's role as a crucial 
partner in improving the achievement of all students.
  This amendment is the wrong direction for the Nation's children and 
the wrong direction for the Nation's future. It is not an attempt to 
offer a helping hand for local schools. It is simply a thinly veiled 
attempt to dismantle the Federal role in education.
  Currently, Federal funds help schools and school districts improve 
reading and math skills of disadvantaged students, help teachers get 
the extra skills they need to teach all children to high standards, 
help communities create safe and drug-free schools, and help 
communities modernize their schools. This amendment would strip Federal 
funding of these crucial, targeted purposes intended to help children 
who need it most.
  Time and time again, research has indicated that it is in high-
poverty communities that children are most likely to fall behind and 
drop out of school. This amendment disregards the research and the 
testimony that we have heard over and over about the need to help 
disadvantaged and low-achieving students.
  This amendment would shift funds from poor school districts to 
wealthier ones. Currently, some States depend heavily on Federal funds. 
Alabama, Arkansas, and Louisiana get more than 10 percent of their 
schools funds from the Federal Government. Mississippi depends on the 
Federal Government for a full 21 percent of its education funds. We 
should not do anything to weaken that support.
  As a Nation, we have made a commitment to help all students have the 
opportunity to get a good education. We have a responsibility to make 
sure that public tax dollars are well spent. This amendment provides no 
accountability mechanisms and it is not fiscally responsible. Reforming 
the Federal role in education is neither a casual nor quick decision, 
and it should not be taken lightly.
  Federal education laws are more flexible and school-friendly than 
ever before. States and local education agencies are working in greater 
and more effective collaboration. Schools are helping all children meet 
high standards of achievement. We should not undermine these efforts 
when they are just getting off the ground. We should support efforts to 
improve education for all students, not undermine them.
  I also strongly support and am a co-sponsor of Senator Daschle's 
sense-of-the-Senate amendment with two key provisions--that Pell grants 
should be funded at a total of $7.6 billion, and that a child literacy 
initiative should be funded at $260 million this fiscal year.
  Pell grants are an indispensable source of college aid for low- and 
middle-income students. But too often, the current eligibility rules 
shortchange too many students.
  Today, single independent students at public 4-year institutions are 
not eligible for a Pell grant if their annual income is over $10,000. 
Many of these students will not benefit from the tax credits for 
college expenses recently enacted in the budget law. Greater Federal 
assistance is needed to help them meet their most basic college 
expenses.
  A similar problem faces parents trying to pay for college for their 
children. Current law is actually a disincentive for college students 
to work part-time to help pay for the cost of their education. Yet over 
three-quarters of undergraduates now work part-time while enrolled in 
college.
  It makes no sense for the current law to penalize students who are 
willing

[[Page S8995]]

and able to work their way through college. Many students work full-
time during the summer and part-time during the school year. But if 
they do so, the response by current law is to reduce their eligibility 
for Pell grants. We should be encouraging students to take part-time 
jobs, rather than take out additional loans, as long as their jobs do 
not become so burdensome and time-consuming that they interfere with 
the students' education.
  The budget agreement contained a clear commitment to allocate $700 
million to reform the needs analysis formula for Pell grants. The House 
appropriations subcommittee provided $500 million to meet this 
commitment, but that is not sufficient. The Senate bill is far worse--
it contains no funds at all for this needed change.
  The second part of the amendment will help more children learn to 
read well. We know the dimensions of the current problem. Some 40 
percent of the Nation's fourth grade children cannot read at the basic 
level.
  Low achievement in reading is a national crisis, and it demands 
immediate attention. Children who lack good reading skills by the 
fourth grade are far more likely to fall farther and farther behind, 
and eventually drop out of school. President Clinton is right to focus 
on this critical problem, and Congress should respond.
  This amendment will provide $260 million for a child literacy 
initiative--and it will provide the funds this year. As the ranking 
member of the Labor and Human Resources Committee, I am strongly 
committed to seeing that legislation authorizing the initiative is 
enacted as soon as possible. But it makes no sense to delay the 
appropriation.
  I urge my colleagues to support these two important sense-of-the-
Senate provisions. We all know that the final bill will be written in 
the conference between the Senate and the House. I hope we will have an 
overwhelming vote of approval to insist that the conferees find a way 
to pay for these two essential reforms in school and college education.
  Another essential reform for elementary and secondary students is the 
President's proposal for a voluntary national test for fourth grade 
reading and eighth grade math. Schools need clear standards of 
achievement and realistic tests to measure their achievement. These 
tests are a tool they can use to measure their progress and identify 
areas of need to bolster student achievement.
  I strongly support having the National Assessment Governing Board 
take responsibility for formulating policy guidelines for the voluntary 
reading and math tests. NAGB is in the best position to oversee this 
important issue. This bipartisan group has done an excellent job 
managing the National Assessment of Educational Progress. As we all 
know, NAEP has served to point out how we are doing as a nation and 
helped educators think about ways to improve our education system.
  The voluntary national tests, however, will go further. They will 
help each school district, each school, each student to identify areas 
of need in order to make the necessary changes to improve individual 
student achievement.
  The tests are linked to national and international standards. They 
will show whether individual students are meeting widely accepted 
standards in reading and math. No current test is available to provide 
this essential information to students, parents, teachers, and school 
administrators. For families that move from community to community or 
State to State, there is no current way to measure the performance of 
students on a comparative basis.
  The President's proposal for voluntary national tests has broad 
support from business leaders, including the Business Roundtable, the 
U.S. Chamber of Commerce, the National Business Alliance, and many 
others.
  It also has strong support from the education community, including 
the Council of Great City Schools, the Chief State School Officers, and 
the National School Boards Association.
  Seven States, including Massachusetts, and 15 major cities have 
already agreed to use the voluntary test.
  Voluntary national tests are an excellent way to support local school 
reform and hold schools and districts accountable for student 
achievement. I urge the Senate to reject any effort to deny Federal 
funds for these tests.
  Finally, the Nickles amendment is a blatant attempt to punish the 
Teamsters Union for winning the UPS strike, and it does not deserve to 
pass. The amendment would require the Federal government to abdicate 
its responsibility under the court-approved consent order signed by the 
Justice Department under the Bush administration. If the Federal 
Government abdicates this responsibility, it could be subject to 
contempt proceedings in Federal court.
  This is an unacceptable result. It would substitute the Senate's 
judgment for that of the Federal court about the meaning of the consent 
order. This is not how the judicial process was meant to operate, and I 
urge my colleagues to oppose the amendment.
  Mr. NICKLES addressed the Chair.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. NICKLES. Madam President, I ask unanimous consent that the vote 
that was originally scheduled to occur immediately after the Gorton 
amendment occur at 6 o'clock.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Madam 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. DURBIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1078

  Mr. DURBIN. Madam President, I have an amendment that is pending, I 
believe, amendment No. 1078. I ask for the regular order that this 
amendment be considered.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       Amendment No. 1078, previously proposed by the Senator from 
     Illinois [Mr. Durbin].

  Mr. DURBIN. I ask unanimous consent to dispense with further reading 
of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Thank you, Madam President.
  It is my understanding that there is an agreement that in 25 minutes 
or so a vote will be taken which will interrupt this debate. And during 
this pending period, I am sure that others will be joining us to 
discuss the amendment which I have called up. It has not only been my 
intention to call up this amendment, but any amendments thereto this 
evening. I hope we can dispense with this matter. I have waited all day 
for this opportunity.
  I think it is an important amendment. It is one that has received a 
lot of attention, but it was an amendment which people almost missed 
because, you see, in the tax bill that we considered just a few weeks 
ago, it was not until the final hours before the vote that someone 
discovered a provision buried deep in this tax bill, which literally 
gave a $50 billion tax break to tobacco companies in the United States.
  The reason why amendment came as such a surprise was it was not in 
the House version of the tax bill, it was not in the Senate version of 
the tax bill. No committee hearings were heard on this issue. No debate 
was held on the floor of the House or the Senate on the wisdom of this 
issue. But in fact we have come to learn that the tobacco companies, 
through their lobbyists, inserted this provision in the tax bill at the 
last minute.
  It was a provision which I have called a ``legislative orphan,'' 
because for weeks afterward, after it was discovered, no one would 
claim parentage of this poor little $50 billion amendment--no fathers, 
no mothers, no living relatives. People said it appeared mysteriously, 
that it was approved by the leadership but no one could quite tell us 
where it came from.
  Well, finally, after weeks of investigation, the USA Today reported, 
through a staff member, that it was a product created expressly by the 
tobacco companies and slipped into this tax bill at the last minute in 
an effort to deal with some of the politics of raising the tobacco tax.

[[Page S8996]]

  The tobacco companies have come before us time and again and said, 
``It's a new day. We have learned our lesson. We are no longer the 
oppressive industry, ignoring the reality of public health. We now want 
to sit down and settle. We want to work with our legislative leaders in 
Washington.''
  Well, it was a new day when it came to the speeches, but not when it 
came to propose this amendment to the tax bill. In fact, it was an old 
day, old politics, old time religion. Wait for the dark of night, and 
in that stealthy atmosphere come in with an amendment worth $50 
billion.
  Here is what it said. We were going to raise the tobacco tax, over 
several years, 15 cents. That money was to be raised to provide health 
insurance for uninsured children across America so that States could 
invent their own programs and create their own approaches to cover 
these children. And the tobacco tax revenues would help defray that 
cost.
  Well, the tobacco companies have decided that they want the value of 
this tobacco tax increase to be set off against anything they would 
have to pay in a final settlement, the so-called universal or global 
settlement.

  So, at the last minute, they come in with this provision, a $50 
billion setoff, or break, for the tobacco companies, without a minute 
of hearings, without any consideration in the House or the Senate, 
without any deliberation. They said, ``Let's make this part of any 
tobacco deal. We get a $50 billion break.'' It is no wonder that 
cynicism grows across America when this sort of thing is done. It 
really raises a question about whether we are doing our job right.
  Some of the tobacco companies have come back and said, ``Now, wait a 
minute. This is nothing unusual. A $50 billion setoff against our offer 
of $368.5 billion--it is a natural thing.'' Well, I am afraid it isn't. 
It turns out State attorneys general, including Michael Moore of 
Mississippi, sent a letter on behalf of this group, and they said that 
``. . . [the] recent action by Congress to use revenues raised by new 
taxes as a credit toward our settlement is unacceptable. . .'' This 
comes from Michael Moore of Mississippi. ``As you know, this concept 
was discussed and rejected by us during our negotiations. This 
industry''--the tobacco industry--``has agreed to specific dollar 
amounts in the settlement, and we will not agree to any diminution of 
those amounts not specifically set forth in the agreement.''
  Attorney General Moore, who led this effort of 40 different States to 
bring an action against the tobacco industry, has in fact said that 
this is not part of the agreement. It was expressly rejected.
  So the tobacco companies, having lost in their negotiations with the 
State attorneys general, came up to find some friends on Capitol Hill. 
And they clearly must have found them, because now in fact we have this 
amendment as part of the tax bill, signed into law.
  The amendment which I propose today repeals it. It says that the 
tobacco companies cannot sneak in here in the dark of night and put 
this kind of provision in the law. I tried to attack this provision in 
the closing hours before the tax bill was voted on. Some of my 
colleagues told me later they were not sure what I was doing, and it 
was late, and they were not certain what the point of order was setting 
out to do, but they want a chance to vote on it again. Well, we are 
going to give them that chance today, I hope, if we do not get muddled 
down by the efforts of the tobacco companies again to pull a fast one.
  I am reminded of a story because of what we are setting out to do 
here. An Irishman was seen digging around the wall of his house. He was 
asked by his neighbor what he was doing. He said, ``Faith, I'm letting 
the dark out of the cellar.'' That is what we are trying to do here. We 
want to let the dark out of the cellar in the tax bill. That section of 
miscellaneous provisions which was supposed to be innocuous, not 
costly, noncontroversial, turned out to include this $50 billion break 
for these tobacco companies.
  I think that what the tobacco companies are trying to do here is to 
start writing the tobacco liability settlement legislation even before 
Congress gets its chance. And they want this $50 billion break to start 
with.
  The tobacco company provision in the tax cut bill says the increase 
in the tobacco excise taxes collected as a result of the balanced 
budget law will be credited against the total payments the tobacco 
companies would make as a result of Federal legislation implementing 
the settlement.
  The tobacco tax increase in the final version of the balanced budget 
bill raised $5.2 billion in the first 5 years, and a total of $16.7 
billion over 10 years. Projected out to the 25-year life of the 
proposed settlement, we can estimate that the revenues at stake amount 
to around $50 billion over 25 years. I do not know if there was another 
provision in that tax bill of this magnitude. One small section that 
will literally cost the taxpayers of this country $50 billion that was 
put in this bill without a minute of debate or hearing.

  That means the new balanced budget law, as amended by the tax cut 
bill, would give the tobacco companies a $50 billion credit in any 
future settlement. Boy, that is a good day at work if you can come home 
as a lobbyist for the tobacco companies, and the spouse says to the 
lobbyist, ``How was your day at work?''
  ``I had a great day.''
  ``What did you do?''
  ``I just saved the tobacco companies of America $50 billion without 
anybody noticing. We stuck it in the bottom of the tax bill, and now no 
one will ever know.''
  Well, that isn't what happened. It was discovered. And today it will 
be addressed directly.
  The revenues in this bill were not intended to set off the liability 
of the tobacco companies. They were in there to provide health 
insurance for low-income kids. They should not be used to lessen the 
financial liability of the tobacco companies.
  Moreover, if this provision is not repealed, the tobacco industry is 
going to argue that $50 billion should be taken out of the money the 
settlement envisions for public health initiatives. Keep in mind, these 
tobacco companies sat down with 40 State attorneys general and said, 
``We are willing to reach a settlement. And we are willing to invest 
money in public health initiatives to reduce children's smoking, for 
example.''
  Now they have said, ``We won't give you $368.5 billion as promised 
over 25 years. We want a reduction of $50 billion.''
  So what will be at stake here? Enforcement of this agreement, public 
information campaigns, smoking cessation programs, industry liability 
payments. We should not give the tobacco industry this $50 billion 
windfall.
  I am pleased that Senator Collins is joining me. I see she has come 
to the floor here. Senator Collins of Maine has agreed with me that we 
should repeal this sweetheart deal for big tobacco. American taxpayers 
should not be subsidizing the tobacco industry to reduce its liability 
for past misconduct.
  The amendment is very simple. It simply says that subsection (k) of 
section 9302 of the Balanced Budget Act of 1997, as added by section 
1604(f)(3) of the Taxpayer Relief Act of 1997, is repealed. Or, in 
plain English, the tobacco industry credit added to the balanced budget 
bill by the tax cut bill is repealed.
  The groups that have joined me in support of this effort grow by the 
hour. I am very proud of those who are endorsing the Durbin-Collins 
amendment to repeal that $50 billion tobacco credit.
  I will read the groups for the Record: Action on Smoking and Health; 
the American Association of Critical Care Nurses; the American Cancer 
Society; the American College of Preventive Medicine; the American 
Heart Association; the American Lung Association; the American Medical 
Association; the American Public Health Association; the American 
Society of Addiction Medicine; Children's Defense Fund; the HMO Group; 
the Latino Council on Alcohol and Tobacco; the National Association of 
City and County Health Officials; the National Center for Tobacco-Free 
Kids; the National Council of Churches; the National Education 
Association; the National PTA; the National Women's Law Center; 
Partnership for Prevention; Public Citizen; Taxpayers for Common Sense; 
U.S. Public Interest Research Group; and the Women's Legal Defense 
Fund.

[[Page S8997]]

  Some have argued we should just let this provision stand and then try 
to adjust the settlement accordingly, by adding $50 billion to the 
required payments. We should not have to expend valuable energy trying 
to increase the settlement price just to return to where we stood 
before July 31.
  We should repeal this provision now, clear the decks, and start from 
a level playing field in deciding what the settlement price would be. 
Many of us think the final settlement price should be higher than $368 
billion.
  I might add that my colleague from Kentucky, Senator Ford, is 
offering an amendment in the second degree to this. He suggested at one 
point he thinks $368.5 billion should be the total that is in the 
settlement. Though I will not oppose his amendment as written, I 
disagree with that particular aspect. But whatever the price, it should 
not have to be artificially adjusted to fix a provision added in the 
dark of night that almost no one knew about and almost no one agreed 
to.
  Some have also argued that the settlement provision has no meaning 
and no effect. When I brought it up on the floor some of my colleagues 
said, ``Well, this is not binding. It is not a matter of law.''
  I said at that point, ``Then take it out of the bill.''
  ``No, no, we have to keep it in the bill.''
  Clearly, the people fighting for it in the bill wanted a strong 
bargaining position. They wanted to say when the tobacco settlement 
came down, we will start with a $50 billion credit for the tobacco 
companies. I do not think the tobacco industry would have worked so 
hard to put the provision in the bill if it was not important.
  In fact, news reports have indicated that the provision was supposed 
to have been put in the Balanced Budget Act and was added to the 
Taxpayer Relief Act after being inadvertently left out of the budget 
bill. If it had no meaning or effect, no one would have bothered to 
write it into the tax cut bill.
  But make no mistake about it, this provision is very meaningful. 
Although it was originally characterized as an ``orphan'' provision 
because no one would own up to having written it, the truth finally 
came out that the tobacco industry provided the language directly to 
the Joint Tax Committee staff which put it in the bill at the behest of 
certain congressional leaders. The provision is very meaningful to 
those who wrote it, namely, the tobacco companies. They stand to gain 
$50 billion for 46 words of legislative language. That is more than $1 
billion a word.
  When you think about the history of Washington, DC, and all that we 
have done on Capitol Hill, we have literally reached the point where an 
effective lobbyist working in the stealth of the night can come up with 
a provision which saves his clients more than $1 billion a word. What 
an effective lobbyist that must be.
  Regardless of whether we support or oppose the details of the 
proposed settlement, we should all be able to agree that the taxpayers 
should not be underwriting the cost of the settlement.

  Some have argued we should not adopt this amendment because it might 
slow down this appropriations bill, and it is a very important 
appropriations bill. But I believe the American people and most Members 
of Congress don't support this tobacco giveaway. We must not pass up 
this opportunity to eliminate it. It is a bad law and it needs to be 
changed.
  Those who want to derail the Labor-HHS bill will try to do so 
regardless of whether this provision is in it. We must not let a threat 
to slow down the bill turn courage into cowardice. If we stand up to 
the forces behind this amendment they will shrink away. They don't 
really want to try to defend the indefensible.
  The question also comes up as to whether, if the amendment is 
adopted, the Labor-HHS appropriations bill could be ``blue slipped'' by 
the Ways and Means Committee in the House, pursuant to the origination 
clause, article I, Section 7 of our Constitution.
  As a practical matter, the answer is no. Of course, the House could 
do whatever it wishes. It is a sovereign body. But as a practical 
matter, it wouldn't have a good case for blue slipping this bill over 
this amendment because it is not a revenue measure.
  We talked to the House Parliamentarian's office. They agreed. The 
subsection of the budget bill that would be repealed by this amendment 
does not amend the Internal Revenue Code. It does not impose or remove 
a tax. It does not even change the tobacco industry's current 
obligations. It addresses only a possible future credit against the 
payments the tobacco industry would make in a settlement. That credit 
is not a tax credit. It is simply a reduction of the tobacco company's 
payment obligations under a settlement, if there is one. Therefore, 
this is not a tax revenue measure subject to that objection.
  Any Member of the House could try to offer a privileged resolution 
claiming that the provision was a revenue measure subject to the 
origination clause and asking the House to reject the bill and send it 
back to the Senate, but they would have a hard time convincing the 
majority in the House to reject this important appropriations bill on 
the grounds this amendment was supposedly a revenue matter, even though 
the amendment, as I said, does not affect the Tax Code nor anyone's tax 
liability and does not even affect the tobacco industry's obligations.
  Tobacco products in the United States kill more than 400,000 
Americans every year. The U.S. economy suffers a tragic and unnecessary 
loss of $50 billion each and every year from tobacco-related health 
costs and another $50 billion from tobacco-related loss of 
productivity.
  Historically, the tobacco industry was unwilling to admit to any 
damage caused by its products. Even today, tobacco company executives 
choke on statements that their products ``might have'' caused some 
instances of cancer.
  But the settlement currently being discussed was agreed to by the 
tobacco industry.
  This secret credit should never have been written into the tax bill. 
It should be repealed immediately.
  Madam President, I say to my colleagues, they may have had an excuse 
for not voting to strip this provision from the tax cut bill on July 
31. Perhaps many of them genuinely did not know it was there. I only 
learned about it a few hours before the vote. But there is no excuse 
today. There is no excuse for the Senate to leave this provision in 
law.
  Now my colleagues have a chance to vote straight up to rectify the 
situation. The American people do not want this credit to remain on the 
books. It is time for Congress to agree and to vote to repeal it. So, I 
say to my colleagues, don't let the tobacco companies take $50 billion 
out of taxpayers' pockets to reduce their settlement liability.
  I hope they will join me in voting for the Durbin-Collins amendment. 
This amendment, to paraphrase an old literary quote, ``shines and 
stinks like rotten mackerel by moonlight.'' We are now bringing it to 
the attention of our colleagues to let them know that this rotten 
mackerel should be excised from the Federal law, that the tobacco 
lobbyists, as effective as they were in placing this provision in law, 
did the wrong thing. They played old politics under the old rules.

  I am happy now to yield the floor to my cosponsor on this amendment, 
Senator Collins of Maine.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Madam President, I am pleased to be joining with my 
colleague from Illinois in offering this amendment to repeal the tax 
break that was slipped into the tax bill at the very last minute to 
benefit the tobacco industry. I note that the distinguished Presiding 
Officer, my colleague, the senior Senator from Maine, is also a strong 
supporter and cosponsor of our effort.
  This provision, which amounts to a $50 billion giveaway to big 
tobacco, has generated justifiable outrage across the country and 
fueled the tremendous cynicism that already colors the American 
public's view of politics and politicians.
  Now, Madam President, where did this tax break come from? It was not 
in the Senate tax bill. It was not in the House version of the bill. 
There was never any public debate. The one-sentence provision just 
magically appeared at the end of a 327-page conference report tucked 
into a section entitled ``Technical Amendments Related

[[Page S8998]]

to Small Business, Job Protection, and Other Legislation.''
  No one claimed parentage. Like Harriet Beecher Stowe's Topsy, ``She 
wasn't born, she just was.''
  While no one has officially spoken up to claim this orphan, it turns 
out, according to press reports, that the provision was written not by 
Members of Congress, but by the tobacco industry.
  Madam President, this is outrageous. It is backroom politics at its 
worst, and represents the kind of abuse of the legislative process that 
the American public is rightfully sick and tired of--a secret 
agreement, negotiated behind closed doors, by powerful tobacco industry 
lobbyists, in the closing hours of consideration of a massive tax bill.
  Congress is currently considering the proposed $368.5 billion global 
settlement negotiated between 40 attorneys general and the tobacco 
industry. As we review this settlement, one of our primary objectives 
is to ensure that the tobacco industry has negotiated in good faith and 
is held fully accountable for their past misconduct.
  Many of us have harbored suspicions about the tobacco companies' 
supposedly good intentions during these negotiations. We have been 
concerned that the tobacco companies would simply raise prices and 
write off the settlement payments, effectively passing on the costs of 
the settlement to the taxpayer and the tobacco consumer.
  Well, Madam President, worst suspicions confirmed. Not only can the 
tobacco companies write off the entire $368 billion as a business 
expense, which means that 30 to 40 percent of the tobacco settlement 
costs will be subsidized by the taxpayers, but now the Congress, in a 
moment of midnight madness, has carved out a brand-new tax break for 
these companies that effectively reduces the costs of the settlement by 
$50 billion.
  It is outrageous that we should even consider approving this tax 
break and passing on these costs to the American taxpayer. Tobacco is 
the No. 1 preventable cause of death in the United States. It accounts 
for approximately 500,000 deaths a year and billions of dollars in 
health care costs. The tobacco companies have agreed to the settlement 
as a means of reducing their future liability and are providing some 
compensation to States and individuals for the costs they face because 
of the disease and addiction associated with their products.
  Regardless of our position on the proposed tobacco settlement, we 
should all agree to reject this $50 billion special tax break for the 
industry.
  Now, some would have us believe that the $50 billion tax credit is 
part of the tobacco settlement. This is simply not true. In fact, this 
concept was discussed and soundly rejected during the negotiations 
between the attorneys general and the tobacco industry. In fact, the 
States attorneys general strongly oppose this new tax credit.
  I have a letter from the States attorneys general. I ask unanimous 
consent it be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

         State Attorneys General, (a Communication From the Chief 
           Legal Officers of the Following States,
                                                   August 6, 1997.
     Hon. Phil Carlton,
     Carlton Law Firm,
     Pinetops, NC.
       Dear Mr. Carlton: We are writing to inform you that the 
     recent action by Congress to use revenues raised by new taxes 
     as a credit toward our settlement is unacceptable. Apparently 
     this action was taken with approval by or at the urging of 
     representatives of the industry. As you know, this concept 
     was discussed and rejected by us during our negotiations. The 
     industry has agreed to specific dollar amounts in the 
     settlement, and we will not agree to any diminution of those 
     amounts not specifically set forth in the agreement.
       We have continued our support for this settlement because 
     we believe it to be in the best interest of the American 
     public. We have always made it clear, however, that should 
     Congress substantially alter material terms of the agreement, 
     the States would exercise the option of rejecting the 
     settlement and continuing the prosecution of their lawsuits. 
     We regard this action as a substantial alteration of a 
     material term. We ask your immediate agreement that this must 
     be eliminated from any final resolution of this matter.
           Sincerely,
     Mike Moore,
                                     Mississippi Attorney General.
     Grant Woods,
                                         Arizona Attorney General.
     Christine O. Gregoire,
                                      Washington Attorney General.
     Robert A. Butterworth,
                                         Florida Attorney General.
     Richard Blumenthal,
                                     Connecticut Attorney General.
     Dennis C. Yacco,
                                        New York Attorney General.

  Ms. COLLINS. In that letter they state that they regard this action 
as ``a substantial alteration of a material term'' of the agreement and 
that they will ``exercise their option of rejecting the settlement and 
continuing the prosecution of their lawsuits'' if it is included.
  Madam President, this secret tax break should never have been written 
into law in the first place. It should be repealed immediately. I urge 
my colleagues to join me in supporting the Durbin-Collins amendment.
  I yield the floor.
  Ms. SNOWE. Mr. President, I rise today in support of the amendment 
offered by the junior Senator from Illinois. This amendment would 
repeal a provision that was inserted in the recently enacted Taxpayer 
Relief Act of 1997 at the last minute that could potentially reduce the 
cost to tobacco companies of the proposed global settlement of tobacco 
litigation.
  Mr. President, as my colleagues are aware, a global settlement on 
tobacco litigation was announced on June 20. This settlement would 
resolve lawsuits brought by 40 States against the tobacco industry that 
sought to recoup State Medicaid spending for smoking related illnesses.
  Under the terms of the settlement, the industry would pay an 
estimated $386 billion over the next 25 years to compensate State and 
individuals for tobacco-related health costs and to finance nationwide 
antismoking programs. The settlement would further restrict the 
advertising of tobacco products and impose new labeling requirements on 
cigarettes and smokeless tobacco. At the same time, the tobacco 
industry would gain closure to the State lawsuits, and protect the 
industry from all but individual lawsuits in the future.
  Mr. President, in light of this proposed agreement, I was very 
disappointed that a provision was included in the recently enacted tax 
cut package that would potentially reduce the cost to the tobacco 
industry of their proposed settlement. Specifically, the provision--
which was agreed to by the administration and congressional negotiators 
at the last minute--would allow the tobacco industry to treat the 
excise tax on tobacco products as a credit against their proposed $368 
billion payment, assuming that the settlement is codified. Although the 
enactment of that settlement is far from certain, the value of this 
potential credit is estimated to be $50 billion over 25 years.
  Mr. President, regardless of whether or not Congress and the 
President ultimately enact, modify, or reject the proposed tobacco 
settlement, I do not believe that the already-enacted Federal excise 
tax on tobacco products--which is paid by consumers and is intended to 
help provide health insurance for uninsured children--should 
potentially become a downpayment by the industry on their proposed 
settlement. The fact that the Clinton administration and congressional 
negotiators agreed to include this provision at the last minute does 
not mean it should remain in law indefinitely--so I have cosponsored 
the Durbin amendment to repeal this provision.
  Mr. President, I regret that this provision was inserted in the tax 
agreement without providing the House and Senate with an opportunity 
for consideration. As my colleagues will remember all too well, the 
negotiated tax package was a take-it-or-leave-it proposition: Members 
were unable to remove this or any other specific provision without 
taking the risk that the entire agreement would unravel and be killed.
  Fortunately, we now have the opportunity to consider this provision 
independent of the broader tax agreement, and I would urge that my 
colleagues vote to repeal this settlement-reducing provision by 
supporting the Durbin amendment.
  Mr. FORD. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S8999]]

  The assistant legislative clerk proceeded to call.
  Mr. FORD. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                 Vote on Motion to Waive the Budget Act

  The PRESIDING OFFICER. The question is on agreeing to the motion to 
waive the Budget Act for the consideration of the McCain amendment 
1091. The yeas and nays have been ordered. The clerk will call the 
roll.
  The assistant legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Utah [Mr. Bennett] is 
necessarily absent.
  The result was announced--yeas 45, nays 54, as follows:

                     [Rollcall Vote No. 223 Leg.] 

                               YEAS--45 

     Abraham
     Allard
     Ashcroft
     Boxer
     Brownback
     Campbell 
     Coats
     Collins
     Coverdell
     Craig
     Dodd
     Faircloth 
     Feinstein
     Gorton
     Gramm
     Grams
     Gregg
     Hagel
     Harkin 
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Johnson 
     Kempthorne
     Kohl
     Kyl
     Lott
     Lugar
     Mack
     McCain 
     McConnell
     Mikulski
     Nickles
     Roberts
     Sessions
     Shelby 
     Smith (NH)
     Specter
     Thomas
     Thompson
     Thurmond
     Warner 
     Wellstone 

                               NAYS--54 

     Akaka
     Baucus
     Biden
     Bingaman
     Bond
     Breaux
     Bryan 
     Bumpers
     Burns
     Byrd
     Chafee
     Cleland
     Cochran
     Conrad 
     D'Amato
     Daschle
     DeWine
     Domenici
     Dorgan
     Durbin 
     Enzi
     Feingold
     Ford
     Frist
     Glenn
     Graham
     Grassley 
     Hatch
     Inouye
     Jeffords
     Kennedy
     Kerrey
     Kerry
     Landrieu 
     Lautenberg
     Leahy
     Levin
     Lieberman
     Moseley-Braun 
     Moynihan
     Murkowski
     Murray
     Reed
     Reid
     Robb
     Rockefeller 
     Roth
     Santorum
     Sarbanes
     Smith (OR)
     Snowe
     Stevens 
     Torricelli
     Wyden 

                             NOT VOTING--1 

       
     Bennett
       
  The PRESIDING OFFICER. On this vote, the yeas are 45, the nays 54.
  Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected. The point of order is 
sustained and the amendment falls.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, perhaps the Senate is not in order.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, perhaps the Senate is not in order.
  The PRESIDING OFFICER. The Senate will please come to order.
  Mr. SPECTER. Mr. President, may I request that my colleagues who have 
amendments on the floor and who have amendments pending stay on the 
floor so that we can have a sequencing and see where we are proceeding.
  I would like to see, Mr. President, if we might reach a time 
agreement on the pending amendment by Senator Durbin. I am advised that 
there may be second-degree amendments to the Durbin amendment. May we 
reach a unanimous consent agreement to proceed with the Durbin 
amendment? Senator Durbin is prepared to accept a short time agreement. 
He has already argued the matter. Senator Durbin is prepared to accept 
a short time agreement of 20 minutes equally divided.
  Is that acceptable to the Members?
  Mr. FORD. Mr. President, I have an amendment in the second degree, 
and I would be willing to take 10 minutes.
  Mr. SPECTER. Mr. President, I ask unanimous consent then that we 
proceed with the Durbin amendment with 20 minutes equally divided, and 
10 minutes for a second-degree amendment by Senator Ford, unless there 
is an objection.
  Mr. SESSIONS. I object.
  Mr. SPECTER. May I inquire of my distinguished colleague from Alabama 
if he would accept a time agreement on his second-degree amendment?
  Mr. SESSIONS. How long is the time agreement?
  Mr. SPECTER. I would suggest 10 minutes, which has been offered by 
the Senator from Kentucky. How about 10 minutes for the second-degree 
amendment of the Senator from Alabama?
  Mr. DURBIN. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. Just a minute, if the Senator would suspend.
  Mr. SESSIONS. That would be appropriate.
  Mr. SPECTER. I thank my colleague from Alabama.
  Mr. President, I amend the unanimous-consent request to add 10 
minutes for the amendment by Senator Sessions in the second degree?
  Mr. SESSIONS. Thirty minutes.
  Mr. FORD. Reserving the right to object.
  The PRESIDING OFFICER. Let's please have order. Let's have one 
Senator speaking at a time.
  Mr. FORD. I would like to object.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. FORD. We have to see the amendment and then we can agree. I 
apologize to the Senator. But I have been asked to object since we 
didn't know what the amendment is, and I am objecting for my 
colleagues.
  Mr. SPECTER. Mr. President, might I ask the Senator from Alabama to 
state the amendment that he proposes to offer?
  Mr. SESSIONS. Yes. The amendment would deal with attorney fees, 
involving payment of attorney fees--payments of attorney fees.
  Mr. SPECTER. Mr. President, might the Senator from Alabama give a 
little more specification?
  [Laughter.]
  Mr. SESSIONS. My amendment would limit the amount of money that could 
be paid for the plaintiffs attorneys that have been hired as private 
attorneys by the attorneys general, and would not vitiate Senator 
Durbin's amendment, but, in fact, would be in addition to that, and 
would not undermine or kill that amendment.
  Mr. SPECTER. Mr. President, I thank my colleague from Alabama.
  I would inquire of the Senator from Kentucky if that would be 
sufficient to let us proceed with the unanimous-consent agreement with 
30 minutes for that second-degree amendment.
  Mr. DURBIN. Mr. President, reserving the right to object, I say to 
the Senator from Pennsylvania, if the Senator from Alabama would be 
kind enough to show us a copy of his amendment, we may be able to enter 
into this agreement very quickly.
  I would like to see the amendment, if he wouldn't mind. I have seen 
Senator Ford's amendment. I believe the time allocation we have been 
talking about is a reasonable one. But I wonder if the Senator from 
Alabama is asking for 30 minutes for his amendment in the second 
degree. Is that my understanding?
  Mr. SPECTER. That is correct.
  Mr. FORD. That is 15 minutes on the side.
  Mr. SPECTER. Equally divided.
  Mr. DURBIN. So as I understand it, the suggestion is that we agree to 
20 minutes on my amendment, and then another 10 minutes equally divided 
on Senator Ford's second-degree amendment, and 30 minutes on the 
amendment of the Senator from Alabama as a second-degree amendment. Is 
that correct?
  Mr. SPECTER. Mr. President, that correctly states the issue.
  Mr. SESSIONS. It is my understanding that there will no further votes 
tonight.
  Mr. SPECTER. My suggestion is that we proceed to vote tonight. 
Perhaps we can, if we can find agreement on putting these all on the 
calendar with the consent of the majority leader, vote tomorrow. But I 
would like to see us come to terms with the complete list and at least 
have a disposition pattern, if we do not vote tonight.
  Mr. President, I yield to my colleague.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I thank the Senator.
  I hope that we can reach an agreement on this amendment in the second 
degree on a time limit, and if we can reach an agreement on a couple of 
more that we have, then I hope the majority and minority leaders would 
agree that we could roll those over and vote tomorrow, and not have any 
more votes tonight.
  Mr. SPECTER. Mr. President, may we proceed? If the Senator from 
Alabama could give the Senator from Illinois a copy of his amendment 
while we are talking about the others before we move on, if we can 
solidify the agreement, it would be helpful. Our experience has been 
that once we move on

[[Page S9000]]

without getting the agreement, sometimes they evaporate.
  May I inquire of the Senator from Washington--is Senator Gorton in 
the Chamber--as to a time agreement on his pending amendment?
  Mr. GORTON. I am not yet prepared to enter into a time agreement on 
the amendment.
  Mr. SPECTER. Mr. President, may I inquire of the Senator from Indiana 
about the testing amendment. Are we in a position to move for a time 
agreement on that amendment?
  Mr. COATS. Mr. President, if the Senator will yield, I am just 
discussing that with Senator Dorgan and others. I just had a discussion 
with the majority leader on that. We are in the process of discussing 
that concept, and we are talking to numerous people on both sides of 
the aisle. We will not be ready to go with that this evening, I do not 
believe, but I believe we will be by tomorrow.
  Mr. SPECTER. Mr. President, might I inquire if we could reach a time 
agreement whenever the matter is ready for debate?
  Mr. COATS. I am not 100 percent sure it is going to need a lot of 
debate if we are able to work out a procedure and agreement on proper 
language, and so forth, in terms of how we will dispose of this. It may 
be that we don't need an agreement, but I can't give the Senator an 
answer.
  Mr. SPECTER. I thank the Senator from Indiana.
  Mr. FORD. Mr. President, will the distinguished manager yield for a 
question?
  Mr. SPECTER. I would.
  Mr. FORD. I have a second-degree amendment offered, 10 minutes 
equally divided. I understand it is acceptable. I will not ask for a 
rollcall vote. That might help expedite the decision here a little bit. 
We could proceed with my second-degree amendment which would have to go 
before the Durbin amendment, and then the amendment of the 
distinguished Senator from Alabama which would be after that. We can go 
ahead and get his out of way, if that would be acceptable.
  Mr. SPECTER. Mr. President, I think that would be acceptable. I first 
would like to explore what we can do on the other pending amendments.
  If we could hear from the Senator from Oklahoma as to how much time 
he would need on his amendment or perhaps the distinguished Senator 
from Massachusetts as to whether we could reach a time agreement and 
vote on the issues raised on the Teamsters matter.
  Mr. KENNEDY. Mr. President, as was pointed out by the Senator from 
Alaska and others, this is an extraneous matter. We had a good debate 
on it the other evening. I believe that it would probably take--we did 
not really complete the debate on it the other evening, so it will 
probably take some time to reach a resolution of it. But the majority 
leader has spoken to the minority leader about it and talked to me 
about it in terms of time, but I think it will probably take some time. 
I know the Senator from Maryland was very much involved in it. I don't 
see him in the Chamber at this particular time.
  Mr. SPECTER. Mr. President, might I inquire of the Senator from 
Massachusetts whether he thinks it would be worthwhile to explore 
trying to find some outer parameter of time, 4 hours equally divided--
some time limit?
  Mr. DASCHLE. Mr. President, if the Senator will yield.
  Mr. SPECTER. I do.
  Mr. DASCHLE. This has been a matter of some discussion with the 
majority leader, and I think it would be prudent for us to allow the 
negotiations to continue without pressing for any kind of conclusive 
agreement tonight. I think we are making progress, but I do not think 
we are going to be in any position to come to any final conclusion on 
the amendment until we have had some additional discussions with the 
Senator from Oklahoma and others. So my preference would be to allow 
these negotiations to continue as we work on other amendments and 
revisit the question tomorrow afternoon, or tomorrow morning.
  Mr. STEVENS. Mr. President, will the Senator yield to me?
  Mr. SPECTER. I do.
  Mr. STEVENS. I appreciate the statements made by the distinguished 
Democratic leader, but I have just counted days and we have 8 more days 
in this month to vote. And we have 14, 15 bills to bring across this 
floor from the Appropriations Committee that should all be passed by 
September 30. Tomorrow night is the President's picnic, and by 
tradition we would not be voting tomorrow night. That means we are not 
going to be voting Friday. Unless we get some agreement very quickly, I 
would say by tomorrow afternoon, we probably cannot finish this bill 
this week. We have the Interior bill and we have the D.C. bill yet to 
pass and 14 bills after that--13 conference reports, managers' 
statements from the conferences, and 1 continuing resolution.
  I am beginning to see a problem developing as far as our ability to 
handle these bills if these extraneous amendments are going to weigh 
them down. I urge that we find some way to make up a list to see how 
many more amendments we have out there and then see what we can do 
about the time or getting some agreement to terminate this. This bill 
actually is a larger bill than the defense bill. We have been on this 
bill now for a substantial period of time. I think we have to find some 
way to get it to a resolution by at least Thursday afternoon and lay 
down the Interior bill so we can start that and get some of the debate 
going on Friday on that at least. I hope that we would find some way to 
get some resolution on some of these items that appear to be 
unlimitable right now.

  Is there some way we could agree on getting a list and say there will 
be no more amendments? Could we get a list that there will be no more 
amendments raised?
  Mr. SPECTER. We have such a list.
  Mr. STEVENS. You have a dozen second-degree amendments so I do not 
think you can find an end to this unless you get an agreement there 
will be no more amendments.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. I thank our distinguished colleague, Senator Stevens, 
the chairman of the Appropriations Committee, for what he has just said 
and for his management of the overall appropriations process. He is 
exactly right. We had discussed this matter, and that is why I am 
pressing now to try to get time agreements.
  We do have a list, but we have not precluded under the customary 
arrangement second-degree amendments. We could not incorporate that 
type of limitation.
  May I inquire of the Senator from Minnesota, Mr. Wellstone, if he is 
in the Chamber, with respect to the amendments he has pending?
  Might I inquire of the Senator from Washington, Senator Murray, of 
her willingness to enter into a time agreement on the amendment 
relating to family violence?
  Mrs. MURRAY. Mr. President, I would be happy to enter into a time 
agreement after the Durbin amendment is disposed of. I would need a 
half-hour of time. I do not know what the opponents would need.
  Mr. SPECTER. Mr. President, then I ask unanimous consent that we 
enter a time agreement on the amendment just referred to by the Senator 
from Washington, 1 hour equally divided, so she will have 30 minutes.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. SPECTER. Mr. President, I thank my colleague from Washington.
  I again inquire of the other Wellstone amendments--if the Senator 
from Minnesota is not in the Chamber, perhaps we can call him and ask 
him to come to the floor--if he would be willing to enter into time 
agreements.
  Mr. President, might I inquire of the distinguished Democratic 
leader--if I might have the attention of the Senator from South Dakota, 
there is an amendment pending regarding Pell grants and child literacy.
  I ask, if I might, the Senator from South Dakota, the distinguished 
Democratic leader, what his intentions are, whether he would be 
agreeable to a time limit?
  Mr. DASCHLE. I would be happy to agree to a 20-minute time agreement, 
20 minutes equally divided, if it is a contested amendment.
  Mr. SPECTER. Mr. President, I ask unanimous consent that we have the 
agreement, 20 minutes equally divided.

[[Page S9001]]

  Mr. DASCHLE. Reserving the right to object, I would assume there 
would be no second-degrees--with that timeframe assuming that there are 
no second-degree amendments.
  Mr. LOTT. I would accept that in the unanimous-consent agreement, 
without second-degree amendments, and then a vote on or in relation to 
the Daschle amendment.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. SPECTER. Mr. President, I inquire of the Senator from Illinois if 
he has had a chance to see the amendment by the Senator from Alabama.
  Mr. DASCHLE. Mr. President, I might be able to enlighten my 
colleague, the manager of the bill. We are told by a number of our 
colleagues that they are not prepared to enter into a time agreement on 
the amendment of the distinguished Senator from Alabama at this time. 
So I think it will probably be some time before we are able to do that. 
We may want to proceed. But at least at this point I do not think we 
are in a position to agree to a timeframe on the amendment.
  Mr. SPECTER. Mr. President, I thank the distinguished Democratic 
leader and would ask that they make the review as promptly as they can 
because we are ready to really proceed with the conclusion of the 
amendment by Senator Ford and Senator Sessions and also Senator Durbin.
  Mr. DURBIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. If the Senator from Pennsylvania will yield, I suggest we 
return to my amendment, and Senator Ford has an amendment in the second 
degree and he is prepared to offer it. And at that point, if there are 
any other amendments in the second degree, they can be offered. But I 
would like some understanding as to whether or not any more votes would 
be taken this evening on any of these amendments.

  Mr. SPECTER. Mr. President, if the Senator will yield, I think we 
have to be prepared to vote, on this state of the record. We are in a 
state of considerable flux, if not confusion, as to where this bill is 
headed, and our experience is that unless we stay and debate and vote 
we are not going to get through this bill. I say that with reluctance 
because I know Senators have other plans.
  Mr. President, I would suggest that we proceed at this time to the 
debate on the amendment by the Senator from Kentucky on his second-
degree amendment and perhaps in that intervening 10 minutes we could 
get Senator Wellstone to the floor to find a time limit. If we are 
unable to come to an agreement on the second-degree amendment by 
Senator Sessions, perhaps we would proceed with Senator Murray's 
amendment which is 1 hour equally divided.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized for a 
period of 5 minutes.
  Mr. FORD. I ask, is it necessary that I call up my amendment?
  The PRESIDING OFFICER. The Senator's amendment is pending.


                           Amendment No. 1117

  Mr. FORD. Mr. President, this amendment is cosponsored by Senator 
Robb, Senator Hollings, Senator McConnell, Senator Faircloth, Senator 
Helms, and Senator Thompson.
  As many of my colleagues already know, I have been extremely 
disappointed that the national tobacco settlement includes no 
provisions whatsoever to help the tobacco farmer. There is no question 
that this proposal will affect them. Yet there is nothing in the 
proposal for them. They were not invited to the negotiations. They were 
not consulted about the negotiations. They were not even briefed about 
what was going on during the negotiations.
  The proposed settlement contains money to compensate promoters of the 
NASCAR races who lose tobacco sponsorship. It contains money to 
compensate promoters of rodeo events who lose tobacco sponsorship. It 
contains money for other events, teams, or entries in such events who 
lose tobacco sponsorship. It contains money, big money, for a tobacco 
counteradvertising program. It contains money for smoking cessation 
programs. It contains money for individual lawsuits. It contains money 
for Medicaid lawsuits filed by the State.
  Mr. President, the proposed tobacco settlement contains compensation 
for just about everything you can think of, everything except the 
tobacco farmer.
  The negotiators found a way to compensate promoters of sporting 
events, but they completely ignored a 200-year tradition that is the 
cornerstone of many small communities in my State. In other words, the 
farmers got the shaft.
  I intend to do everything I can to keep any legislation from passing 
unless there is a fair compensation for tobacco farmers included in the 
$368.5 billion package. We have to take into account the future of 
these small families. We have to take into account the future of these 
small farm communities.
  There are about 60,000 tobacco farms in my State alone, Mr. 
President. Most of them grow a couple acres of tobacco, but they get 
about one-fourth of their farm income from tobacco. The national 
tobacco settlement leaves them out in the cold. It leaves the local 
economies of entire communities in shambles. We must do something about 
it.
  I have been working with my farmers and with other tobacco State 
Senators to develop a package that will provide fair compensation to 
tobacco farmers and tobacco-growing communities. We intend to have such 
a package included in any legislation to implement the tobacco 
settlement. I think other Senators from tobacco States share my view 
that we will simply not support any future legislation which does not 
address the tobacco farmers' future.
  So, Mr. President, all my amendment says is that farmers ought to be 
taken into account. We should not forget them. My amendment is a 
second-degree amendment which expresses the sense of the Senate that 
tobacco growers and tobacco-growing communities should be fairly 
compensated as a part of any Federal legislation for the adverse impact 
which will follow from enactment of a national tobacco settlement. I 
think this is a reasonable request, and I believe my colleagues are 
prepared to accept my amendment by unanimous consent. I am perfectly 
willing to do that without asking my colleagues to vote. I yield the 
floor.
  Mr. DURBIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, speaking to the second-degree amendment 
offered by the Senator from Kentucky, he and I have been in 
disagreement on this issue in the short time I have served in this 
body, but I stand today in support of his second-degree amendment. 
Though I may disagree with one or two provisions in it, I believe the 
central element of his amendment is a suggestion that tobacco growers 
should be protected in any settlement agreement, and I certainly think 
that is a worthy goal as part of the settlement negotiations. For that 
reason, though I may disagree with some other particulars, I will 
support his second-degree amendment.
  Mr. LUGAR. Mr. President, I did not object to the Ford sense-of-the-
Senate amendment to S. 1061. I agree with its sentiment that the needs 
of tobacco farmers should be taken into account when Congress considers 
the proposed tobacco settlement.
  I wish to express reservations about two points in the Ford 
amendment's language. First, the amendment says that any compensation 
to tobacco growers should ``be included within the $368.5 billion in 
payments.'' However, we do not now know that the size of the settlement 
will be precisely $368.5 billion. It may be larger. Moreover, payments 
to growers might be additive to the settlement amount, whatever its 
size.
  Second, the amendment expresses a desire to ensure ``the continued 
administration of a viable federal tobacco program which operates at no 
net cost to the taxpayer.'' I favor compensating tobacco farmers for 
the equity they have built up in the quota system over the years. Such 
a buyout of the quota program should lead to, at most, a minimal price-
supporting role for the Government. That is what we have done for the 
producers of most other commodities in the 1996 FAIR Act: Transition 
payments, and price supports at market-clearing levels.
  I believe that to continue the present tobacco program without change 
is not

[[Page S9002]]

likely to be viable, so I find the amendment's language acceptable. 
Because some might read it to imply an endorsement of the status quo, I 
simply want to register my view that such a reading is neither required 
by the amendment's language, nor in the long-term interest of tobacco 
producers.
  Mr. SPECTER addressed the chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I believe that the Senator from Kentucky 
has offered a worthwhile amendment. There is no doubt about the 
dislocation to tobacco growers occasioned by a settlement which will 
have the effect of crippling their business for public policy reasons 
which may yet be worked out.
  It is obviously uncertain at this point as to what will happen with 
the proposed global settlement on the tobacco industry, but I think 
this is another matter where public policy calls for certain action. 
There are some employees, some workers in the industry who are hurt. I 
think it is sensible to provide for those individual workers.
  Certainly, we have seen the demise in my State of the steel industry 
and the glass industry and the coal industry, and we have tried to take 
care of dislocated workers. As the distinguished Senator from Kentucky 
has articulated the amendment, the sense of the Senate to do that I 
think is acceptable. There may be a fair distance between the sense of 
the Senate and how it is going to be effectuated. With some frequency 
we see on this floor the Senate express its sense and then back off 
when it comes to putting dollars up to druthers.
  But in terms of the public policy behind looking out for the 
interests of the employees who will be injured by a global tobacco 
settlement, I believe the Senator from Kentucky has offered a 
worthwhile amendment, and we are prepared to accept it on this side.
  Mr. FORD. Mr. President, if I have any time left, I will yield it 
back after asking unanimous consent that Senator Frist of Tennessee be 
added as a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FORD. Mr. President, I thank my colleague for his support, and I 
do agree, once we have a sense of the Senate, they should be helped. 
How they are helped is another issue.
  I thank my colleague from Illinois for his effort here.
  I yield back whatever time I might have.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 1117) was agreed to.
  Mr. FORD. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.
  Mr. CRAIG. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.


                Amendment No. 1125 to Amendment No. 1078

 (Purpose: To provide for certain limitations on attorneys' fees under 
any global tobacco settlement and for increased funding for children's 
                            health research)

  Mr. SESSIONS. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Alabama [Mr. Sessions], for himself, Mr. 
     Craig and Mr. Faircloth, proposes an amendment numbered 1125 
     to amendment No. 1078.

  Mr. SESSIONS. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:
       At the end of the amendment, add the following:
       Sec.   . (a) General Limitation.--Notwithstanding any other 
     provision of law, if any attorneys' fees are paid (on behalf 
     of attorneys for the plaintiffs) in connection with an action 
     maintained by a State against one or more tobacco companies 
     to recover tobacco-related medicaid expenditures or for other 
     causes of action, involved in the settlement agreement, such 
     fees shall--
       (1) not be paid at a rate that exceeds $250 per hour; and
       (2) be limited to a total of $5,000,000.
       (b) Fee Arrangements.--Subsection (a) shall apply to 
     attorneys' fees provided for or in connection with an action 
     of the type described in such subsection under any--
       (1) court order;
       (2) settlement agreement;
       (3) contingency fee arrangement;
       (4) arbitration procedure;
       (5) alternative dispute resolution procedure (including 
     mediation); or
       (6) other arrangement providing for the payment of 
     attorneys' fees.
       (c) Expenses.--The limitation described in subsection (a) 
     shall not apply to any amounts provided for the attorneys' 
     reasonable and customary expenses.
       (d) Requirements.--No award of attorneys' fees shall be 
     made under any national tobacco settlement until the 
     attorneys involved have--
       (1) provided to the Governor of the appropriate State, a 
     detailed time accounting with respect to the work performed 
     in relation to any legal action which is the subject of the 
     settlement or with regard to the settlement itself; and
       (2) made public disclosure of the time accounting under 
     paragraph (1) and any fee agreements entered into, or fee 
     arrangements made, with respect to any legal action that is 
     the subject of the settlement.
       (e) Provision of Funds for Children's Health Research.--Any 
     amounts provided for attorneys' fees in excess of the 
     limitation applicable under this section shall be paid into 
     the Treasury for use by the National Institutes of Health for 
     research relating to children's health.
       (f) Effective Date.--The limitation on the payment of 
     attorneys' fees contained in this section shall become 
     effective on the date of enactment of any Act providing for a 
     national tobacco settlement.

  Mr. SESSIONS. Mr. President, I would like to address a very important 
issue that has not been discussed much. It has been raised a few times 
but not openly discussed. I think it is consistent with Senator 
Durbin's concern that a tax benefit being proposed has not had full 
public discussion.
  One of the things that has not had public discussion regarding the 
tobacco settlement is attorney's fees. Many of the States have 
undertaken very lucrative agreements with plaintiff lawyers who States 
attorneys general have hired to represent their States to carry on this 
litigation.
  Less than a year ago, I was attorney general of the State of Alabama, 
and I was asked and it was suggested to me to hire plaintiff attorneys 
to represent the State of Alabama. It was suggested that a 25-percent 
contingent fee would be appropriate in those cases. I rejected that. I 
felt like it was not necessary for the State of Alabama to undertake 
such a generous fee agreement. Other States have undertaken such 
agreements, and that is of much concern to me.
  Now we have the case coming before this Senate of being asked to 
bless or to approve by legislation those agreements. It is important 
for us to consider that every dollar that is spent on attorney's fees 
is a dollar that does not go to children's health. So this amendment 
limits the amount of money that can be spent on attorney's fees and 
says any excess moneys that are saved in that regard will be sent to 
the National Institutes of Health to be used for research for 
children's illnesses.
  I think that is the appropriate way to do this. We have a lot of 
attorneys who have been talking a lot about children's health, so let's 
talk about that seriously, and let's ask about how this has happened.
  Let me just say, the way this agreement has been entered into, the 
attorneys general, with their attorneys who they have hired, have 
entered into an agreement, a global settlement agreement, with the 
tobacco industry. Oddly enough, it mentions nothing about attorney's 
fees.
  What we have learned since then is that there is a side agreement 
between the plaintiffs' attorneys who represent the States and the 
tobacco industry to pay their attorney's fees directly by the tobacco 
industry, apart from the State that they represent, which is a very odd 
situation and, in fact, in my opinion, Mr. President, represents a 
conflict of interest, because at this point, you have the attorneys 
supposedly representing the State entering into an agreement, a side 
agreement, with the attorneys and the party on the other side of this 
litigation, the tobacco industry.
  So that puts them in a situation in which, if they do not agree and 
this settlement does not go forward, they do not get their attorney's 
fee.
  That is basic. That is a conflict, I submit, between their interests 
and their duty and fidelity to the State, their client, and the 
opposing side who

[[Page S9003]]

now is paying their fees. Why didn't they put it in the agreement? Why 
didn't they state it publicly? Because they don't want to talk about 
it.
  Most of the estimates and many reports have been suggested as to how 
much these fees might be. Some have said $10 to $14 billion. That is 
what I have seen published in several different instances. Let me 
repeat that: $10 to $14 billion. That is the greatest legal fee ever 
paid in the history of this Nation, in the history of this world. It is 
the mother of all attorney's fees. We are talking about $10 to $14 
billion. Outside of education, the budget of the State of Alabama is $1 
billion. So we are talking about an incredible sum of money that could 
provide tremendous amounts of research and care for children. That is 
where this money ought to go.
  We are talking about a secret side agreement by which the attorneys, 
supposedly representing the States and the children, have gone over 
here now and have set up a side agreement with the people they have 
been accusing of being so bad, the tobacco industry, the people they 
are suing. That is not an appropriate way to do it.

  I think if this body is to approve a global settlement and enact 
legislation in that regard, this body ought to make clear where we 
stand with regard to attorney's fees. We cannot allow some secret side 
agreement representing billions of dollars that could be going to 
children to be paid under the table by the party for the other side to 
the attorneys to the States who are representing the children.
  I think this is a very important subject, Mr. President, and I care 
about it very deeply.
  I think Senator Durbin's amendment deals with a tax question that has 
not been fully aired. This is a question that has not been fully aired, 
and it needs to be.
  Our amendment would do something else. It would say that every fee 
agreement that has been entered into between the State attorneys 
general and the lawyers they hired, the plaintiffs' lawyers they hired 
to represent them has to be made public, and the statement has to be 
made public. We limit the amount of fees. I think this is a large fee, 
most people think this is huge. Mr. President, $5 million is the limit 
per State we think is appropriate for this kind of litigation. In 
addition to that, we say it should not exceed $250 per hour in billing 
time. So that would be the cap on the fees that this bill would set 
forth: that no more than either $250 per hour, which is far more than 
what the average working man in this country makes, I assure you, $250 
per hour would be the maximum time. If it goes over that, we would cap 
it at $5 million.
  I think that is a reasonable proposal. It would not take effect until 
and if this body enters into a global settlement of this litigation. I 
think it is quite appropriate. I think that we need to deal with this 
issue.
  I will just say this, as to the secretiveness of it. There have been 
several inquiries made by members of various committees of this Senate 
and one made by me of an attorney general about what the fee agreement 
was, and he did not set forth that agreement. Right after that hearing, 
over a month ago, I wrote a letter to the parties involved in this 
litigation, and I asked them to state the agreement they had with the 
attorneys representing those States publicly. We have a response not 
from one of them. They have not responded.
  This is a public contract between the attorneys general of the States 
and the lawyers who are representing the States. So I think something 
is amiss here. It is something we ought to deal with. This amendment 
deals with it straight up. I believe it fulfills the needs that we are 
here for, and that is to make sure we get the most money possible for 
children and children's health.
  Mr. CRAIG addressed the Chair.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, I stand to join my colleague from Arkansas 
this evening in offering this second-degree amendment. I must tell you, 
when the Senator approached me, I was hesitant. I don't get involved in 
what I originally think is a private-sector relationship, a client 
relationship that can be none of our business here. But when the States 
attorneys general and the trial attorneys have come together to craft a 
universal or a national agreement that the Senator from Illinois 
approaches tonight as part of his amendment, and they approach us to 
make this national law, to make this the law of the land, it is now the 
public's business, without doubt.
  Clearly, the Senator from Arkansas has demonstrated that this 
evening. He has even clearly stated----
  Mr. FORD. Alabama.
  Mr. CRAIG. Excuse me. Excuse me, the Senator from Alabama.
  Mr. SESSIONS. Alabama, thank you very much, I say to the Senator from 
Iowa.
  [Laughter.]
  Mr. CRAIG. Touche.
  But the Senator has very clearly pointed out there could well have 
been side agreements made or upfront agreements that go beyond any 
average person's wildest imagination to the potential of tens of 
billions of dollars in attorney's fees.
  Here tonight the Senator from Illinois--and just a month ago this 
Senate agreed to tax an industry for the purpose of the health of the 
children of this country, a tax that in 1 year would not even 
demonstrate this amount of money. How can it be possible that any one 
profession could draw or come to draw or believe to be entitled to that 
amount of money? And $250 an hour is a what the Senator's amendment 
says is a reasonable and right fee, and even that the average working 
person would pale to.
  So I am extremely pleased that the Senator this evening has brought 
forward the amendment. It is something that this Senate will either 
face now or face in the future as we deal with the crafting of a 
universal agreement, if that becomes possible and ultimately gets to 
the floor of this Senate.
  I will join with the Senator however many times it takes to make sure 
that what he has proposed as an amendment tonight can and must become 
the law of the land, because in his wisdom and in the crafting of this 
amendment, he says that the excess dollars go where they ought to go, 
to children's health because all of us are extremely concerned about 
the rapid increase in teenage smoking in this country. That is part of 
what spurred this whole effort that is now nationwide as it relates to 
smoking and the tobacco industry.
  So I think the amendment to the pending amendment is appropriate this 
evening. It fits into what we are trying to do if in fact we become 
participants in the crafting of a global agreement as it relates to 
what is attempted to be resolved between the States attorneys general, 
the tobacco industry, and the representatives of those States attorneys 
general. So I join my colleague tonight. I am proud to be a cosponsor 
of this important second-degree amendment.
  Mr. FAIRCLOTH addressed the Chair.
  The PRESIDING OFFICER (Mr. Enzi). The Senator from North Carolina.
  Mr. FAIRCLOTH. I rise in strong support of the amendment offered by 
the distinguished Senator from Alabama. I cannot think of any better 
method of cutting to the crux of this whole tobacco settlement than the 
amendment that he has offered. We talk about here, on a regular basis, 
doing something for children, for the health care of children, for 
their better care, and looking after children. And I strongly support 
these initiatives.
  Knowing the generous, caring, and giving nature of the trial 
attorneys, I have no doubt that they would all be in strong support of 
the amendment of the Senator from Alabama if they were here to vote on 
it. Knowing of the eleemosynary history of trial attorneys, I know if 
they were here, they would join us in strong support of Senator 
Sessions' bill.
  So I just say that this is a wonderful opportunity to make a major 
contribution to the caring for children's health and their well-being 
in this country. I commend again the Senator from Alabama for bringing 
it to this body's attention. I stand in strong support of it.
  I say again, knowing the nature of the trial attorneys of this 
country, that if they were here and knowing that they had the 
opportunity to make this strong contribution to the children of this 
country rather than it going into attorneys' fees, that they would 
stand in strong support of the

[[Page S9004]]

amendment of the Senator from Alabama also.
  I thank you, Mr. President, and I thank Senator Sessions.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Kentucky.
  Mr. McCONNELL. Mr. President, I commend my friend and colleague from 
Alabama for an outstanding amendment. I listened carefully to his 
comments, Senator Faircloth's comments, and Senator Craig's comments.
  As I understand the amendment by the distinguished Senator from 
Alabama, he is in effect here giving the Senate a choice, if I 
understand correctly, a choice between legal fees and children's 
health. The Senator from Alabama pointed out that as a State attorney 
general he had the option to retain private counsel to engage in this 
litigation which is going on in 30-some odd States around the country, 
and that he chose not to do it, but that many State attorneys general 
chose to hire private counsel to pursue this litigation against the 
tobacco companies.
  Now we understand, as the distinguished Senator from Alabama pointed 
out, there are fee arrangements not known to the public under which 
there could be billions of dollars in fees paid to these lawyers who in 
effect were acting on behalf of State governments----
  Is that right, I say to my friend from Alabama?
  Mr. SESSIONS. You are correct. The Senator is correct.
  Mr. McCONNELL. Engaged in the business of the public to recover the 
Medicaid costs. And we are not sure how much those fees are.
  Now, it is suggested that the Federal Government, the Congress of the 
United States, ratify--we will have a proposal at some point this year 
or next year--ratify what is referred to as the global tobacco 
settlement. So the distinguished Senator from Alabama is simply saying 
that this is a matter of public concern.

  It will actually, if it is passed, be a matter of Federal law. If we 
are going to sanction this kind of agreement, the distinguished Senator 
from Alabama is saying we would like to make a decision as how best to 
deploy the public money in this global settlement. Some of the public 
money, Mr. President, is obviously legal fees for those who, on behalf 
of State governments, brought these lawsuits.
  The distinguished Senator from Alabama is not being unfair, it seems 
to me, to the lawyers. As I understand the amendment, he is saying, up 
to $5 million per State or at a rate of $250 an hour, whichever is 
less----
  Mr. SESSIONS. Less.
  Mr. McCONNELL. Would be the capped fee arrangement for these private 
lawyers doing public business at the behest of the State attorneys 
general. And $5 million, Mr. President, is not a bad year's work, not a 
bad 2 years' work--for many Americans not a bad lifetime's work.
  So the distinguished Senator from Alabama is not saying that these 
lawyers, if you have been hired by the State government, you have to do 
it for nothing. All he is saying in effect is you don't get to gouge 
us. So he has set here a reasonable limit, some would argue maybe even 
too generous, and saying any excess amounts that have been agreed to 
should be diverted to the children of America at the National 
Institutes of Health to fund research for children and children's 
diseases.
  I think it is an outstanding amendment. I commend the distinguished 
Senator from Alabama for his amendment. I think it makes an awful lot 
of sense. It is clearly an amendment in the best interest of the 
children of America. So, Mr. President, I thank the Senator from 
Alabama for his leadership on this issue.
  I yield the floor.
  Mr. FORD addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Kentucky.
  Mr. FORD. Mr. President, would the Senator from Alabama help me here 
a little bit? I want to be sure--the eloquence of his amendment has 
already been stated on the floor. Let us be sure, because this is a 
very complex piece of legislation. And I yield to everyone because I am 
not a lawyer and so, therefore, I have a hard time understanding side 
agreements, protocols, but I am learning. I am on the jury.
  As I understand it, your amendment applies to the $368.5 billion 
settlement?
  Mr. SESSIONS. That is correct.
  Mr. FORD. Inside there?
  Mr. SESSIONS. The Senator is correct.
  Mr. FORD. All right.
  Now, that is not the bill. That is not the total bill here. There is 
also added on to that about $24 billion more for tort liability. That 
is in addition to that. And then the lookback penalties, which is if 
the reduction of youth smoking is not sufficient to meet the criteria 
set, there will be another $42 billion. So we are talking about $435 
billion here now, not $368.5 billion.
  So I want to be sure that we all understand where we are going. We 
are beginning to put so much weight on this agreement that it is going 
to fall, and then we will lose, I think, all those goals that we have 
set for ourselves.
  But one of the items yet to be decided is the plaintiff attorney's 
fees.
  Your amendment does not get to that?
  Mr. SESSIONS. It does, yes. Yes.
  Mr. FORD. I am talking about the private litigants now.
  Mr. SESSIONS. No, not the private litigants.
  Mr. FORD. So private litigants, their attorneys are yet to be 
compensated. So you add those on to the $435 billion. Now, if you are 
talking about $10 to $14 billion in the other place, I wonder if we 
could just add a low figure $10 billion, so we are now getting to 
around $495 billion, almost $500 billion. So I want to be sure that we 
all are on the same wavelength.
  Then we are talking about the new taxes. That is another $50 billion. 
That is another $50 billion. That is just over a few years. That is not 
over the term of the contract. So you add that on and you are at about 
$530 billion. So if there is a possible doubling of lookback penalties, 
we are talking about another $42 billion.
  So I want to be sure everybody understands that $368.5 billion is 
just within a range for the States for those Medicaid payments. The 
Federal Government will get about 60 percent; States will get about 40 
percent.
  There are a lot of things here I thought we ought to be sure about.
  The Senator's amendment, I wanted to be sure that it was in the $368 
billion, and not in addition to.
  Mr. SESSIONS. Let me clarify that as best I can.
  Mr. FORD. I think we are all going to have to work at this pretty 
hard.

  Mr. SESSIONS. To put it real simply, almost every State that entered 
into this litigation hired a law firm to represent the State. Some of 
them used their own attorneys, I believe, but most hired private 
plaintiff lawyers to represent them. They then entered into agreements 
to pay them so much money.
  Now those attorneys general, now those plaintiff lawyers, now the 
tobacco lawyers have come to this body and asked us to approve a global 
settlement, ``but don't talk about attorney's fees,'' they say, 
``because we're going to take care of that between the plaintiff 
lawyers and the tobacco lawyers. We're going to work that out between 
us.''
  What we are saying is, that needs to be public. The public needs to 
know. It ought to be capped to a reasonable fee, and not be a windfall, 
because in many of these cases they hardly filed the lawsuits before 
the settlement was agreed to, so almost no legal work has been done, 
yet they would stand to receive perhaps billions of dollars in legal 
fees. It is a matter we have to deal with.
  Mr. FORD. I thank the Senator. I hope you understand what I am trying 
to do. It is a huge, a humongous piece of legislation. The $368 billion 
is just the beginning. It is now, in my judgment, at about $525 to $530 
billion. And we have not talked about the private litigants' attorney's 
fees, which are an add-on. You are not bothering that.
  I think it might be well, Mr. President, if I submit these figures, 
have them on a per year basis and with some question marks. There are 
other add-ons that will be question marks. And the attorney's fees are 
question marks. I think I will just put this in for a matter of the 
Record just so everybody will understand.
  Mr. President, I ask unanimous consent that this be printed in the 
Record.

[[Page S9005]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               NEW FEDERAL REVENUES FROM TOBACCO INDUSTRY               
------------------------------------------------------------------------
                                     Per year \1\        Over 25 years  
------------------------------------------------------------------------
Core Tobacco Settlement.........  $15 bil...........  $368.5 bil.       
Additional tort liability.......  Up to $1 bil......  Up to $23.86 bil. 
``Lookback'' penalties..........  Up to $2 bil......  Up to $42 bil.    
Attorneys fees..................  ????..............  ????              
                                 ---------------------------------------
      Subtotal..................  Up to $18 bil.      Up to $434.36 bil.
                                   (+?).               (+?)             
New Excise Taxes................  $2 bil............  $50 bil.          
                                 ---------------------------------------
      Subtotal..................  Up to $20 bil.....  Up to $484.36 bil.
Possible doubling of Lookback     Up to $2 bil......  Up to $42 bil.    
 penalties.                                                             
                                 ---------------------------------------
      Subtotal..................  Up to $22 bil.....  Up to $526.36 bil.
Other add-ons?..................  ????..............  ????              
                                 ---------------------------------------
      Total.....................  ????..............  ????              
------------------------------------------------------------------------
\1\ Annual figures begin in 5th year of settlement, when fully          
  implemented.                                                          
                                                                        
1995 Tobacco Industry Contribution to GNP: $44.7 bil.                   

  Mr. FORD. I thank the Senator for helping me here.
  Mr. SESSIONS. If the Senator will yield.
  Mr. FORD. Yes.
  Mr. SESSIONS. I do think that, depending on the wording of these 
understandings between the attorneys general and lawyers, that the fee 
may be a percentage of the whole $500 billion that the Senator referred 
to.
  Mr. FORD. Because it is not $368 billion, I say to my friend from 
Alabama.
  Mr. SESSIONS. Yes. I appreciate your correcting that.
  Mr. HARKIN. Will the Senator yield for a question?
  Mr. SESSIONS. Yes.
  Mr. HARKIN. Who has the floor?
  The PRESIDING OFFICER. Senator Ford has the floor.
  Mr. FORD. I yield the floor.
  Mr. HARKIN. I wonder if I might inquire of the author of the 
amendment, the Senator from Alabama, a question.
  I was reading it over, and as I read the amendment, under the first 
section, paragraph A of your amendment, you put a limitation on the 
per-hour rate of attorneys, and then there is a cap total of $5 million 
that applies per State?
  Mr. SESSIONS. Yes.
  Mr. HARKIN. The $5 million applies to per-State maximum.
  Mr. SESSIONS. That would be the maximum, but if they could not 
justify the fee by hour, they may not get that.
  Mr. HARKIN. I understand that, but it is a maximum of $5 million in 
any regard.
  Now, this has to do with attorney's fees paid in connection with a 
State recovering money. This does not have to do with the so-called 
proposed big settlement that is going to come to us in the future. This 
applies to States.
  I wonder how we, here, can limit attorney's fees in a State action?
  Mr. SESSIONS. I am delighted to try to answer that. It is a very 
unusual thing that is happening to this Senate and we have been asked 
by the attorneys general, by the defendants, the tobacco companies, 
too, in fact, by legislation legislate a lawsuit. So it is unusual.
  They are asking us to do that because many of the things that they 
want, each side wants, cannot be accomplished through private 
litigation. They want to, in effect, control new tobacco companies that 
have not been making tobacco and have not made people sick before, they 
want to control them and others.
  So they have asked this body for a lot of reasons to ratify this 
through our legislation. To that degree, they have asked us to ratify.
  I think we need to find out what the attorney's fees are. I think as 
part of our legislation our legislation ought to control legal fees and 
we ought not to pay any more than that mentioned in this amendment.
  That is, basically, where we are.
  Mr. HARKIN. I listened to the Senator make the explanation but I 
thought the amendment was going to go toward limiting attorney's fees 
if there is a global settlement, this thing we are being asked to do at 
some point. We do not know if it is this fall, next year, or whatever, 
when we will be asked to ratify a so-called global settlement.
  But your amendment does not just speak to that, it speaks to ongoing 
cases in the States. For example, as I understand it, the State of 
Mississippi just settled, the State of Florida just settled, other 
States will maybe be settling. Your amendment seems to me to apply to 
those States that make those settlements. It has nothing to do with the 
proposed universal or global settlement that we will be asked to ratify 
at some point later on.
  That is why I wonder, by what right or power do we have in the 
Federal Government of saying to a State government, a State attorney 
general and the State government that you can't, in your agreement, 
whatever your agreement is, you have to limit attorney's fees?
  That seems to me to be an odd kind of a thing for us to do--the 
Federal Government telling the State government when you make your 
agreement, here is all you can do. It does not seem to me to be 
constitutional.
  Mr. SESSIONS. I would like to respond. I think you raise a very 
interesting point.
  First, I say it is unusual that the States would come to this body 
and ask the Congress of the United States to ratify a lawsuit, but they 
have.

  Our bill does not take effect and does not apply unless this body 
enacts a global tobacco settlement. It is the last sentence in the 
amendment. In other words, we do not, and this legislation does not 
attempt to intervene in litigation that is ongoing unless there is a 
global legislation by the Congress of the United States, in which case 
we would then also deal with attorney's fees as we should.
  Mr. HARKIN. Again, I understand and I appreciate the Senator pointing 
that out. Mississippi made an agreement, Florida has made an agreement, 
maybe there will be a couple of other States that make agreements, what 
if later on we make a global settlement, do they have to go back and 
renegotiate all the attorney's fees? That is what I wonder.
  How can we tell a State what they have to do prior to our reaching 
this national settlement--and whether we reach it or not, I do not 
know. What would happen, for example, to a State like Mississippi that 
has already negotiated and make their deals--I guess, I assume they 
have.
  Mr. SESSIONS. My understanding is that States that have settled have 
conditioned their settlement on the requirements of the congressional 
global settlement. If there is no congressional action, then their 
settlements will be in full force and effect, but if it is, they are 
agreed to be vitiated by the congressional action.
  Mr. HARKIN. The Senator was not aware of that. I appreciate that.
  I yield the floor.
  Mr. DURBIN. Mr. President, I rise in opposition to this amendment. I 
have just seen this amendment this evening for the first time, but I 
know the Senator from Alabama has offered it in the regular order of 
business.
  I have had a few minutes to read it over. I commend to my colleagues 
the suggestion they should read this very closely. This amendment is 
the dream of the tobacco companies. The Senators who have risen to 
speak on behalf of this amendment from the tobacco-producing States I 
think have given evidence of the fact that this is another one of the 
last gasps of this industry.
  Let me tell you why what appears to be so reasonable on its face is, 
in fact, a loaded deck for the tobacco companies again.
  My friend, the Senator from Alabama, wants to limit attorney's fees 
and to take any excess and put it into health research for children. 
Now, who in the world could oppose that?
  But look closely. He does not want to limit the attorney's fees for 
tobacco company lawyers. No. He just wants to limit the attorney's fees 
for those on the plaintiffs' side, the States that have brought this 
action. Now that is curious. If he is afraid that the attorneys, who 
will ultimately all be paid by tobacco companies when this is all over, 
are going to charge too much money, he only wants to limit the hourly 
rate to $250 an hour to attorneys representing the plaintiffs in this 
action. So he protects these fat cat law firms that have represented 
the tobacco companies forever, who can charge $500 an hour, $1,000 an 
hour, he does not care. His interest is only the attorneys for the 
plaintiffs.
  That does not make any sense. All of the money is coming out of the 
same pot. If he wants to make this a reduction in the lifestyle of 
attorneys, why does it not apply to defense attorneys? Why does it not 
apply to tobacco company attorneys? No, his only interest is

[[Page S9006]]

the attorneys who stepped forward and filed these lawsuits on behalf of 
the States.
  Now, they have been characterized by their critics this evening as a 
pretty motley crew. Remember that 40 different States decided through 
their own elected attorneys general that they would bring these 
lawsuits under fee arrangements so that they would have the legal 
talent to be able to process the most complicated litigation in the 
history of the United States.

  Mr. SPECTER. May I interrupt my distinguished colleague for a moment 
to say there will be no further rollcall votes tonight. I have just 
been able to make that determination, and I know there are many 
Senators on the campus waiting to find out what is going to happen.
  I regret interrupting Senator Durbin, but I think that is worth a 
statement. We have the list fairly well pared down. When Senator Durbin 
finishes, I will announce the prospects for tomorrow.
  Mr. DURBIN. I am pleased to be interrupted with that good news.
  Isn't it curious that this effort to provide research funds for 
children's health, funded by excess attorney's fees, would only apply 
to attorney's fees in excess for the plaintiffs, that the law firms 
representing Philip Morris and RJR and all the tobacco companies can 
charge whatever they care to charge.
  Now, I think that pierces the veil of what this is all about.
  But let's read on. What else is the Senator from Alabama setting out 
to do here?
  Mr. SESSIONS. Will the Senator yield?
  Mr. DURBIN. I yield for a question.
  Mr. SESSIONS. Would the Senator be agreeable to this amendment if we 
reworded it, in fact, make it apply to the tobacco lawyers? I will 
certainly feel good about that.
  The reason it was done this way is because many of the plaintiffs' 
attorneys apparently have it on a contingency fee basis, probably have 
filed lawsuits, may be entitled to hundreds of millions of dollars and 
have done very little work. It would be an unjust enrichment, it 
appears to me.
  I would certainly entertain that amendment. I think it is a 
suggestion that we ought to incorporate.
  Mr. DURBIN. I think that is an improvement, but let me read on.
  The reason why this amendment should not be considered, why the 
tobacco companies will jump for joy if it is adopted, is that it will 
discourage any State from bringing its lawsuit against the tobacco 
companies.
  The Senator from Alabama, for reasons I do not understand, has 
decided that no State of the 40 that filed suits, no matter how deeply 
they are involved in this litigation, can pay outside attorney's fees 
beyond $5 million, which sounds like a huge sum of money until you 
consider States like Minnesota.
  Minnesota has been preparing for trial on January 19, has now 
collected millions of documents from these tobacco companies, has 
warehouses in London and in Minneapolis. They have attorneys scouring 
through the documents and processing them. They are preparing to go to 
trial.
  In my home State of Illinois, I do not think we have made nearly that 
progress in moving toward litigation. But the Senator from Alabama does 
not care that the attorneys in Minnesota have been working overtime for 
months and the attorneys in Illinois may not have been.
  He says, we are going to pick an arbitrary figure--no State can pay 
their attorneys no matter how much work they have put into this, any 
more than $5 million, period.
  Now, that is fundamentally unfair. It really does not reflect the 
effort that has been put in by these attorneys in these States.
  Let me tell you what else he is doing, and I think this is a pretty 
crafty move by the tobacco companies. By putting this provision in the 
law to limit attorney's fees, he will have the attorneys come forward 
in these States and say to the attorney general, ``Well, listen, if we 
cannot, after all of this discovery and all of this preparation even 
recover the amounts that we have expended in attorney's fees, we 
certainly cannot take this to trial,'' so the tobacco companies will 
have their way. The tobacco companies do not want these cases to go to 
trial. They want to discourage that from happening.

  In fact, representatives of those companies have told me point blank 
if any case goes to trial there will be no global settlement. The 
Senator from Alabama is offering them a great improvement here in 
saying that they do not have to worry about a trial now because 
attorney's fees are going to be strictly limited.
  Well, they will be jumping for joy at RJR and Philip Morris if this 
Senator's amendment is adopted this evening, because by limiting the 
attorney's fees and saying that there will be a strict limitation of 
the amount that can be paid to the plaintiffs' attorneys he is, in 
fact, discouraging, if not stopping litigation and trials.
  You will have accomplished with your amendment what the tobacco 
companies have been unable to accomplish to this point. You will have 
stopped these cases and they cannot move forward.
  I do not think that is what the Senator set out to do when he 
explained this amendment. But I think that is the net result of it.
  It is interesting to me as you look into it, what will happen to the 
States that have settled, Mississippi and Florida, what will happen to 
their attorney's fees? If I read this correctly, this may or may not 
apply to it. It is not clear. This amendment is not drawn in a way that 
can tell you it definitely applies in the case of Mississippi and 
Florida. The Senator offers it for prospective payment of attorney's 
fees. Yet, we already have two cases settled and they are not 
addressed.

  And then this whole question of the amount to be paid attorneys, a 
$250 rate. I don't know what a reasonable rate is in the Senator's home 
State. I don't know what attorneys might charge in any State, whether 
it is New York, Minnesota, Illinois or Alabama. But I think the Senator 
has chosen a rate that is unrealistic--unrealistic in terms of what 
these attorneys general face.
  Keep in mind that most of the attorneys general in the United States 
looked to these lawsuits and said right off the bat, ``We don't have 
the resources to sue these tobacco giants. We have to bring in the 
resources and services of attorneys who will, in fact, represent us.'' 
Of course, those attorneys coming in to file those lawsuits expected to 
be compensated if they won --only if they won. Contingency fees are 
based on that. I know from my experience with the Senator in the 
Judiciary Committee, he doesn't think very kindly of contingency fees, 
particularly in his own State. But I think, quite honestly, this is a 
clear illustration that if a contingency fee was not awarded to an 
attorney, the attorney general would not have had this army of lawyers 
to go forward.
  When I heard comments from some of the Senators from tobacco-
producing States, it is clear that they resent these lawyers, these 
attorneys general, for bringing these lawsuits and they want to get 
even with them, they want to nail them and say, ``We are going to limit 
your fees. You thought there was money in this, but there won't be any 
money in this. We will limit you as to how much you can recover.''
  I don't think that is fair. It is curious to me at this time, when we 
are talking about whether or not the Federal Government is going to 
impose its will on the States, that we have an amendment from a Senator 
from Alabama, which suggests that we in Congress should impose on 40 
different States, 40 different attorneys general, a fee arrangement 
that we happen to think is reasonable.
  Well, let me tell you what this is all about. The tobacco companies 
were embarrassed when the amendment was disclosed that gave them a $50 
billion windfall in the tax bill, an amendment which we hope to repeal. 
They had hoped to initiate the negotiations in the tobacco settlement 
by saying: Before we sit down at the table and reach an agreement, give 
the tobacco companies $50 billion.
  I think the public sentiment and the votes of this Senate will see it 
another way. Now the tobacco companies come in with this amendment. 
They want to see this amendment adopted because now they come to the 
table and say to each of these States: There is a new arrangement. You 
can't pay your attorneys. You can't go to trial. We have

[[Page S9007]]

you where we want you. We don't care what your contingency fee 
agreement is going to be. You are limited to what we in Congress think 
attorney's fees should be and how much they should be paid.
  Well, I think this amendment should be defeated. I think this 
amendment is one the tobacco companies will enjoy, one that the 
American people will regret. The States, including my own, that had the 
courage to step forward and file these lawsuits against the tobacco 
companies should not be penalized at this point in time. They have done 
a great service to this Nation. Each attorney general--Democrat, 
Republican or Independent--who decided to enter into an agreement with 
attorneys to represent them did it with the understanding that they 
will be held accountable for this. The Senator says that these are 
secret agreements. Well, in my home State, I can tell you that whether 
there was a secret agreement or not, the gentleman who entered into it, 
our attorney general, will be held accountable for it. Can he justify 
it? Did he say to the taxpayers from Illinois we have recovered enough 
money to justify the contingency money paid the attorneys? Of course, 
and he is held accountable.

  The Senator suggests this is done in secret with no accountability. I 
think he is wrong. I hope when this is all said and done, we will 
defeat this amendment, and that we will not give the tobacco industry a 
victory this evening or tomorrow when we vote, such as they secured at 
the close of debate on the tax bill. These tobacco companies have to be 
told, whether they are trying to stop the States from bringing these 
actions through this amendment by the Senator from Alabama, or 
recouping $50 billion in the stealth of the night, that the party is 
over. The tobacco companies just can't have their way anymore. I think 
we have to stand up for the people who are best represented by these 
lawsuits--the consumers, the children, those who unfortunately are 
going to be the losers if this amendment is adopted.
  At this point, I would like to move to table this amendment.
  The PRESIDING OFFICER. The question is on the motion to table.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I ask if the distinguished Senator from 
Illinois will withhold that motion for the present time. We cannot 
proceed to a rollcall vote tonight under a determination made earlier 
by the majority leader, which I announced as soon as we had heard it. 
There may be other Senators who wish to speak to this amendment. The 
Senator from Illinois would be preserving his position, in any event, 
since we cannot vote tonight, to carry this matter over until first 
thing tomorrow morning. We are beginning at 9:30, so that we can 
consider at that time if there are any other Senators on the floor who 
wish to speak.
  The PRESIDING OFFICER. Does the Senator from Illinois withdraw the 
motion?
  Mr. DURBIN. I will withdraw it, as long as at 9:30 we will proceed to 
the same order of business and the amendment will be the amendment of 
the Senator from Alabama and we can proceed to my amendment after we 
have considered all amendments in the second degree.
  Mr. SPECTER. Mr. President, that is agreeable to this manager of the 
bill. So that all Senators will be on notice that a motion to table 
will be pending. Of course, if it is not tabled, then we can't proceed 
to the underlying amendment.
  Mr. DURBIN. I withdraw the motion to table, with that understanding.
  The PRESIDING OFFICER. The motion is withdrawn.
  Mr. SPECTER. I thank my friend from Illinois.
  Mr. President, we have made some progress in limiting the number of 
amendments. We have been advised by Senator Wellstone that he is 
prepared to withdraw a filed amendment on Pell grants. Senator 
Wellstone is prepared to withdraw a filed amendment on infrastructure, 
which leaves one pending Wellstone amendment on Head Start. I have been 
advised that Senator Wellstone is prepared to enter into a unanimous-
consent agreement for 1 hour, equally divided, providing he has an 
opportunity to modify his amendment. I will not ask unanimous consent 
for the moment on that.
  Senator Wellstone has arrived on the floor. Mr. President, since the 
Senator has just arrived, perhaps I can ask my colleague if the 
information is correct that the Senator is prepared to enter into a 
unanimous-consent agreement for 1 hour, equally divided, on his Head 
Start amendment on the understanding that it may be modified, and he is 
prepared to withdraw the other two amendments, one relating to Pell 
grants and one to education infrastructure?
  Mr. WELLSTONE. Yes. I say to my colleague from Pennsylvania, that is 
correct. I am prepared to lay this down tomorrow and debate it for 1 
hour, if there are no second-degree amendments.

  Mr. SPECTER. We can enter into a unanimous-consent agreement right 
now that there be 1 hour, equally divided, with no second-degree 
amendments in order and then a motion on or in relation to the 
amendment to be offered at the conclusion of 1 hour of debate. I make 
that unanimous consent request.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, did I understand my colleague from 
Minnesota to say that he preferred to offer and debate the amendment 
this evening?
  Mr. WELLSTONE. I had been home and I followed the debate on the 
amendment of the Senator from Alabama, and I had wanted to come over 
here and respond to that.
  Mr. SPECTER. Mr. President, I renew my question. Did my colleague say 
he was prepared, after he discusses the amendment by Senator Sessions, 
to debate the issue today so we can vote tomorrow morning?
  Mr. WELLSTONE. No. Mr. President, I would be prepared to lay the 
amendment down tomorrow morning as early as he wants.
  Mr. SPECTER. I thank the Senator.
  I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.


                    Amendment No. 1125, As Modified

  Mr. SESSIONS. Mr. President, I would like to modify the amendment to 
reflect the change, which I send to the desk.
  The PRESIDING OFFICER. The amendment is so modified.
  The amendment (No. 1125), as modified, is as follows:

       Strike the last word in amendment.
       No. 1078. As amended, and insert the following: 
     ``repealed''.
       ``Sec.   . (a) General Limitation.--Notwithstanding any 
     other provision of law, if any attorneys' fees are paid (on 
     behalf of attorneys for the plaintiffs or defendants) in 
     connection with an action maintained by a State against one 
     or more tobacco companies to recover tobacco-related medicaid 
     expenditures or for other causes of action, involved in the 
     settlement agreement, such fees shall--
       ``(1) not be paid at a rate that exceeds $250 per hour; and
       ``(2) be limited to a total of $5,000,000.
       ``(b) Fee Arrangements.--Subsection (a) shall apply to 
     attorneys' fees provided for or in connection with an action 
     of the type described in such subsection under any--
       ``(1) court order;
       ``(2) settlement agreement;
       ``(3) contingency fee arrangement;
       ``(4) arbitration procedure;
       ``(5) alternative dispute resolution procedure (including 
     medication); or
       ``(6) other arrangement providing for the payment of 
     attorneys' fees.
       ``(c) Expenses.--The limitation described in subsection (a) 
     shall not apply to any amounts provided for the attorneys' 
     reasonable and customary expenses.
       ``(d) Requirements.--No award of attorneys' fees shall be 
     made under any national tobacco settlement until the 
     attorneys involved have--
       ``(1) provided to the Governor of the appropriate State, a 
     detailed time accounting with respect to the work performed 
     in relation to any legal action which is the subject of the 
     settlement or with regard to the settlement itself, and
       ``(2) make public disclosure of the time accounting under 
     paragraph (1) and any fee agreements entered into, or fee 
     arrangements made, with respect to any legal action that is 
     the subject of the settlement.
       ``(e) Provision of Funds for Children's Health Research.--
     Any amounts provided for attorneys' fees in excess of the 
     limitation applicable under this section shall be paid into 
     the Treasury for use by the National Institutes of Health for 
     research relating to children's health.
       ``(f) Effective Date.--The limitation on the payment of 
     attorneys' fees contained in

[[Page S9008]]

     this section shall become effective on the date of enactment 
     of any Act providing for a national tobacco settlement.''

  Mr. SESSIONS. Mr. President, this is in the nature of a technical 
change. It doesn't change the basic import of the amendment.
  I yield the floor.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I respect the motivation of my colleagues 
who are offering amendments on the proposed global tobacco settlement 
tonight. As we all know, the issues surrounding this settlement prove 
easy to frame, but difficult to resolve.
  I have been listening carefully to this debate, and the timing is 
very interesting to me.
  Here we are now in September. Everybody would like to see this 
session end sometime near the end of October, or early in November, at 
the latest.
  But as far as the proposed global tobacco settlement goes, people 
around here seem to be assuming it is going to happen when, really, 
basically, nothing is being done.
  Yet, tonight we are making arguments and amendments on the assumption 
that something is going to get enacted.
  I would suggest to my colleagues, though, that this discussion is 
premature. We do not have all the details of the agreement. No one, 
that is no one, does, not even any of the parties to the agreement has 
final legislative language.
  We have not even reached a discussion in this body of the most 
general question we have to answer before we decide if the Senate will 
consider the global tobacco settlement: do we want to further regulate 
the use and sale of tobacco products in order to protect the public 
health and bring a degree of accountability and finality to the surge 
in tobacco-related litigation.
  More precisely, the question we face during the remaining weeks of 
this session is whether the global tobacco settlement proposal should 
be implemented and, after we make that decision, then amendments would 
be in order.
  Mr. President, I don't think anybody in this body despises the use of 
tobacco more than I. Frankly, I think tobacco use is wrong, it is 
deleterious to health, and it basically can ruin people's lives.
  There is no question that--in the eyes of almost every research 
scientists--tobacco use causes cancer.
  There is no question that it causes cardiovascular, respiratory, and 
other similar diseases, and still we treat it as though it is a 
substance that has every right to exist.
  As long as it does have the right to exist as a legitimate business 
in this country--and I believe that it will continue to be available--
then it seems to me that we have to resolve these problems in an 
amicable, decent manner that is in the best interests of this country.
  As I see it, there is not much happening on the proposed tobacco 
settlement.
  There is no use kidding ourselves, the $368 billion settlement 
proposed by the attorneys general and most of the tobacco industry--all 
except Liggett & Myers--as I understand it, is an interesting proposal.
  There is no question, that offers a substantial sum of money. It is 
to be paid over a 25-year period and, if my calculations are correct, 
the tobacco companies will be able to write off about a third of the 
cost of that settlement at the expense of the taxpayers.
  There are many, many issues that have to be resolved on the tobacco 
settlement if we are going to have one at all. Let me name just a few 
of them, in no particular order of importance.
  No. 1 would be an evaluation of the totality of the settlement. That 
is, as I have said, whether this Congress should seize the window of 
opportunity presented by the tobacco proposal which offers the 
possibility of significant advances in public health and liability 
reform. Are the public health gains it offers something we wish to 
pursue? Are the legal reforms it contains sound public policy? Are the 
two in appropriate balance?

  No. 2 would be whether the costs associated with implementation of 
this agreement should be treated for tax purposes as ordinary business 
expenses?
  Third would be the appropriate role of the Food and Drug 
Administration in the regulation of tobacco products. This is an 
extremely complicated issue. It involves an evaluation of the FDA's 
current legal authority, the regulations FDA has promulgated on youth 
tobacco use and the Greensboro court decision, and the future authority 
called for in the agreement.
  The fourth issue is an examination of the constitutional limitations 
posed by an agreement which some believe abrogates their first 
amendment, free speech rights.
  The fifth issue is what I call the ``show me the money'' issue. I 
challenge anyone to undertake an exhaustive review of the 68-page 
proposed settlement and then delineate clearly how the $368 billion in 
funds will be allocated. For example, many participants in the 
agreement have said there are funds for children's health. On what 
page? It simply isn't there.
  And even for the amounts stipulated in the agreement, there is no 
definition of how the funds will be divided among states or parties to 
the agreement.
  The sixth issue is a consideration of civil justice concerns, such as 
changing traditional plaintiffs' rights to seek redress through the 
courts.
  The seventh issue is how those who were not parties to the original 
agreement will be treated. One company, for example, Liggett & Myers, 
has now signed agreements with about 25 States and all of the Castano 
class members. How should those agreements be factored into the 
settlement?
  The eighth issue is related. Should there be an accommodation for 
those who manufacture, sell, or use vending machines or for others who 
have been engaged in legal businesses and have made a livelihood with 
products or services that might not be continued after a settlement is 
finalized?
  Here's another important issue. The ninth issue we need to address is 
that of documents disclosure. Some in this body have called for full 
disclosure of all tobacco-related documents before any settlement is 
considered. Others believe we will never get to a settlement if we 
become enmeshed in an investigation of abuses extending back over 30 
years.
  One of the greatest advantages of having a tobacco settlement is the 
public benefits that may derive from it for our children and indeed our 
society as a whole.
  As we all know, 3,000 kids start smoking a day--teenagers, that is--
1,000 of whom will become addicted over their lifetimes. These numbers 
are only going up, and it is no secret that part of the reason is that 
the tobacco industry has basically enticed these kids into smoking.
  Without a tobacco agreement, we will not be able to put meaningful 
resources into solving these teen tobacco use problems. It is 
questionable whether we could ever provide the same nationwide 
incentives or resources to not only slow down teenage smoking, but 
perhaps end it forever.
  And since we are debating the National Institutes of Health funding 
bill, I might mention that without the tobacco settlement, we won't be 
able to have as many funds as we would otherwise have for biomedical 
research.
  It is also apparent that if we break the cigarette companies, we are 
not going to be able to have 25 years of continual multibillions of 
dollars paid into a settlement agreement system for the benefit of our 
society as a whole.
  There are so many other issues that I hesitate to even begin. But the 
fact is the proposed settlement is complex, it is difficult, and 
Congress basically has done nothing about it since it arrived here on 
June 20.
  It is true we have held three hearings in the Judiciary Committee. 
They have been interesting hearings. They have enlightened us to a 
degree. We think we now know the issues involved. We have listened to 
the attorneys general. We have listened to people representing the 
tobacco industry. We have listened to constitutional experts. We have 
listened to health care specialists.
  And, frankly, we are going to hold some more hearings on this. But it 
seems to me that we need to address the proposed tobacco settlement 
with a timetable and a process that will literally cause it to be done. 
We aren't there yet, and piecemeal amendments

[[Page S9009]]

on an appropriations bill won't get us to that point.
  If the tobacco settlement is not completed by the end of this 
particular session, I fear we may never have a tobacco settlement. If 
that is so, we will lose this one-time opportunity to help our children 
and perhaps to help keep millions of kids from ever starting to smoke 
or chew tobacco.
  If we lose that opportunity, it will be pathetic.
  It is no secret that the tobacco industry has virtually won every 
case but one in the history of litigation in this matter. In that one 
particular case it was a $750,000 verdict. If I understand it 
correctly, that is on appeal. And that will be dragged out for another 
10 years by very, very good lawyers who are very, very capable of doing 
exactly that.
  So, if we do not move ahead and we don't solve these problems, we are 
going to find ourselves in a morass where we are right back to business 
as usual, and the tobacco companies will be making billions of dollars 
at the expense of the society at large with no help to our young people 
in this society and not much money for research other than what we can 
generate through congressional appropriations. In the end, we lose all 
of the advantages that we could achieve.
  In fact, there are several things which must occur if we are even 
going to try to move forward to an agreement, or move an agreement 
forward.
  First, the President of the United States has to get off the dime and 
start leading on this issue.
  In July, we heard the President would speak out a few days before his 
planned August 15 vacation. It didn't happen.
  Earlier this week, we heard the President was supposed to speak out 
about the settlement this Thursday.
  Let's speak the plain truth here. Without the President's leadership, 
the tobacco agreement can't happen.
  The proposed settlement was announced on June 20. At that time 
President Clinton called the concessions attained by negotiators from 
the tobacco industry ``unimaginable.'' He also tasked top executive 
branch officials with the job of reviewing the settlement, consulting 
with the public health community, and advising him on whether or not 
this agreement adequately protects the Nation's public health 
interests.
  Eleven weeks have passed with no final word at all from the White 
House on what, if any, changes the President wishes to see. Almost 
daily we hear, or so it seems, rumors that the President will speak--
only to find out that he does not.
  The President's silence in this area speaks volumes.
  It has been speculated in the press that the President will say that 
the level of funding needs to be increased, that the FDA's regulatory 
authority needs to be strengthened, and that there needs to be greater 
accountability on the part of the tobacco companies if the reduction 
targets are not met, especially among the Nation's teenagers. But this 
is only speculation at best.

  Should President Clinton support the idea of moving forward, he needs 
to tell our American people, and he needs to reveal what changes, if 
any, he deems to be necessary.
  We need the President to speak out and tell us precisely where he 
stands and whether he believes there should be an agreement, and an 
agreement this year.
  We need him to help us to understand where we are going on this 
issue. We need to know how much political capital he is willing to 
expend on this issue, and we need to know whether he is really serious 
about solving these problems.
  With 3,000 children starting to smoke each and every day, I don't 
believe the Clinton administration can afford to delay this any longer.
  Second, I call on parties to the agreement to resolve ambiguities and 
to help produce legislative language agreed upon by all parties so that 
Congress can be crystal clear about the details of the proposal and 
therefore can plan and judge it accordingly.
  If the President chooses to take advantage of this one-time 
opportunity, the parties to the agreement have a responsibility to 
settle ambiguous points within the settlement agreement and provide the 
Congress with their version of the settlement in legislative form.
  Today, I am challenging the parties to the agreement to do so, to 
provide us with the details of the agreement beyond the 68-page 
prospectus.
  I, for one, am willing to look at it. I think the other committee 
chairmen who are involved are willing to look at it as well. We are 
willing to see if we can mold together an agreement that literally will 
be in the best interests of the public at large.
  Let me add that several weeks ago I sent the proposed agreement to 
legislative counsel and asked them to try to draft a bill based on the 
language of the settlement. We found that these expert draftsmen were 
presented with more questions than answers. So the parties need to get 
together and help us to formulate the legislative language. I am 
calling upon them to do that. If there are problems or ambiguities that 
have to be resolved, we will help them with that.
  Third, the parties who negotiated this settlement presented it to 
Congress must also produce others willing to champion this 
unprecedented public health opportunity. Beyond the several attorneys 
general, the plaintiffs bar, and public health groups, few have seized 
on the settlement as a viable option. Major legislation such as the 
settlement envisions has never been approved absent widespread support. 
And we aren't there yet, which is another reason why these amendments 
we are considering tonight are premature.
  The fact is we will not be there without the President and without an 
awful lot of hard work on the part of all of us here.
  Fourth and finally, we must consider how we resolve this issue of 
document production. The proposed agreement provides that previously 
undisclosed documents be publicly disclosed through a national tobacco 
document depository open to the public and located centrally here in 
Washington, DC. These documents would include documents from the files 
of the tobacco companies, including those relating to internal health 
research, documents that we have not been able to get up until now.
  Any documents already produced in the attorney general actions would 
be immediately deposited, and additional existing documents would be 
placed in the depository within 3 months of the enactment of the bill.
  Despite this provision for open disclosure, some in Congress--those 
who question the settlement most--have proposed immediate disclosure of 
these documents. The documents in the Minnesota case alone brought by 
Attorney General Hubert Humphrey, who has testified before our 
committee, amount to 33 million documents. Such massive disclosure is 
neither practicable nor possible in the presettlement arena.
  Naturally there are attorneys all over this country who believe that 
the settlement will never make it through and they are trying to look 
out for their clients. Internal documents which have not yet been 
released could be invaluable in such suits.
  But the greater good demands that we look at an agreement which could 
bring us tremendous public health advances, and it appears that 
agreement could actually be hindered by an exhaustive investigation of 
internal tobacco documents.
  I can't blame the cigarette companies for not wanting to produce the 
documents in advance--although I cannot in any way condone some of 
their past reprehensible behavior. I simply question whether it is the 
appropriate role of Congress to conduct discovery for private 
litigants.
  I think we are all indebted to the negotiators for stimulating a 
potentially fruitful public discussion on the public health issues 
attendant to tobacco.
  I commend the States attorneys general, especially those involved in 
the class action litigation. I commend the public health 
representatives who have been speaking out, and the representatives of 
the tobacco industry for advancing the ball in a meaningful direction.
  The climate has been created for the Congress and the public to have 
opportunities to make significant strides on this whole set of tobacco 
issues.
  It is clear that the Senate is only in the beginning stages of this 
process. Five congressional hearings having been held, and more are 
planned.
  I urge my colleagues to let the process work. Let us move a proposal 
in the

[[Page S9010]]

Judiciary Committee. Many of my colleagues here tonight are members of 
that committee, and we will have ample opportunity for full discussion.
  I just have to doubt if this is the right time and the place, on the 
Labor-HHS appropriations bill, to be raising these issues that could 
blow the settlement out of the water.
  I personally believe we ought to move that settlement forward.
  My study has led me to conclude it is a one-time opportunity to do 
something for our kids in this society.
  It is a one-time opportunity to make significant advances in 
biomedical research, And it is surely a one-time opportunity to have 
the tobacco companies fully cooperate in providing all of their 
internal research for the benefit of the public health at large.
  There are so many benefits that could derive from a decent 
settlement, if we can formulate one and keep the parties together.
  It is time now for the President to speak out.
  He was supposed to speak out this Thursday. Now they have put it off 
for another week, knowing that every week that it is put off it is less 
likely that we can pass something in this Congress.
  Let me make a prediction. I believe that we are going to lose this 
historic opportunity if we do not seize the opportunity, bite the 
bullet, do the work that is necessary, get the involvement of the 
companies, the attorneys general and others who are interested in this 
process, and come up with a package, that literally, will realize all 
of the public health gains I have been talking about, and more.
  It is no secret that the tobacco industry may not proceed with the 
settlement if the North Carolina case, which does indicate that FDA 
does have some right to regulate in the area of nicotine, is overturned 
on appeal. Many legal experts say that the Greensboro case is iffy at 
best and that it could very easily be overturned on appeal. In fact, I 
think there are many good arguments for overturning it on appeal based 
on present law and our understanding of present law.

  But let me admonish my colleagues that if that case is overturned on 
appeal, I am not so sure that the tobacco industry is going to proceed 
with a settlement anyway, because they might just continue to take the 
risk that juries in the respective States will almost invariably find 
that those who smoked all of their lives assumed the risk, or were 
contributorily negligent in doing so. That is why they have won these 
cases in large measure right up to today.
  I was in Pittsburgh, PA, when the first anticigarette tobacco case 
was brought, Pritchett versus Liggett & Myers, by the then fabled 
McArdle law firm. Jimmy McArdle, was one of the leaders, if not the 
leader in the whole country, in paving the way for tobacco litigation. 
He scared the daylights out of tobacco companies, but lost, one of few 
times that great lawyer did not prevail in court.
  So I have watched this litigation for all of these years. If that 
case in North Carolina is lost, we will lose a major incentive for the 
tobacco companies to come to the table.
  Or let's put it another way. If Minnesota Attorney General Hubert 
Humphrey wins his case, the tobacco companies may very well decide not 
to go forward anyway. Or, conversely, if General Humphrey loses, what 
is the incentive for the tobacco companies to stay in the deal?
  It would be a message to every other attorney general in the country. 
Already they have decided to fight right to the end the case brought by 
the Attorney General of Texas. What is the incentive to continue?
  Right now we have an opportunity for all sides to put something 
together. The attorneys general have put inordinate amounts of time and 
effort into this matter, and there is an obligation on our part to try 
to resolve it.
  But without Presidential leadership, it is very unlikely that we can 
resolve it. If we have the President's endorsement, then I think we 
have to have leadership here in the Congress to move forward, and to do 
what is right.
  No matter what we do, it is going to be difficult because there are 
those in the Senate and in the House who resent anything done to the 
tobacco industry. And there are those who feel that anything the 
tobacco industry wants should be blocked.
  My feeling is that the benefits that could come from a legitimately 
and well put together tobacco settlement clearly outweigh the desire of 
some to just kill the industry, when in fact they don't have the tools 
to do so.
  There is no doubt in my mind that the $368 billion figure has to 
change. We have to give serious consideration to the tax implications, 
as some in this body have suggested. We have got to have some clear-cut 
approach toward FDA authority.
  We have to do a number of things that literally will make that 
settlement more acceptable. And we have to bring all sides and all 
parties together, and we have to bring the weight of the Federal 
Government, the weight of the administration, the weight of the 
legislative branch of Government, and ultimately the weight of the 
courts into bringing this all together so that the public at large can 
benefit greatly.
  Personally, I am willing to devote substantial effort toward that 
end. I know other committee chairmen, who have various jurisdictional 
areas in this matter, are willing to work on it as well.
  In all honesty, we are not going to resolve this by bits and pieces 
in amendments to legislation like this.
  With regard to the amendment of the distinguished Senator from 
Illinois, let's face it, the language in the Balanced Budget Act was 
pretty ambiguous. I see any way that language could be binding; it is 
too ambiguous.
  The language, in my opinion, is not really going to require any 
tobacco settlement to pay for child health insurance. Nevertheless, it 
would be nice to clarify that matter, and we could do that in a true 
tobacco settlement.
  With regard to attorneys' fees, I share some of the view of the 
distinguished Senator from Alabama. I agree that there should be a 
limitation. This should not be a ripoff situation where we have a 
feeding frenzy on attorney's fees. On the other hand, there are 
attorneys who have worked long and hard and spent a lot of money and a 
lot of effort and time, and without whom the settlement would not have 
been brought to this point. They do deserve some compensation for that.
  I think we were all well aware that the issue of attorneys' fees is 
going to have to be solved in any tobacco settlement that happens.
  I do not believe we can easily solve tonight the problem that has 
been raised by the Sessions amendment that would retroactively limit 
attorney fees which have already been a matter of contract between 
States and private counsels.
  But we can solve the problem as to how much of this money that 
actually has to be put up over 25 years is going to go for attorneys' 
fees.
  That is something we are going to have to work to solve. It needs to 
be done fairly; it needs to be done with wisdom, as with all other 
aspects of this agreement, in totality.
  The way to do it isn't by nit-picking or just by amendment after 
amendment in the Chamber. We could literally get into 100 tobacco 
amendments on just this appropriations bill alone.
  I think the way to do it is to get the President to speak out. Let's 
keep holding our hearings. Let's get a final legislative draft and look 
at it. Let's bring the parties together and demand that the attorneys, 
the attorneys general, the public health groups, and the tobacco 
companies who originally negotiated the deal work to provide us with a 
draft. Let's reform and refine that draft, factor in the President's 
perspective, and the views of others who did not participate, such as 
the farmers, and let's move forward to resolution of this issue in the 
best interests of the American people.
  I just wanted to make these comments because I am very upset that we 
keep playing around with this issue. Frankly, if we let it go beyond 
the end of this year, it may be very difficult, it maybe impossible, to 
do next year.
  I ask unanimous consent that Bruce Artim be granted access to the 
floor for the remainder of the session.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I yield the floor.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Pennsylvania.

[[Page S9011]]

  Mr. SPECTER. Mr. President, a few administrative matters here.
  I ask unanimous consent that Senator Domenici be added as a cosponsor 
to amendment No. 1121.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Amendment No. 1095, as modified

  Mr. SPECTER. Mr. President, I ask unanimous consent that the pending 
amendment be set aside and that the Senate turn to the consideration of 
amendment No. 1095 to S. 1061 very briefly and temporarily for 
disposition.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. On behalf of Senator Landrieu, I send a modification to 
the desk.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified.
  The amendment, as modified, is as follows:
       On page 44, line 2, strike ``$5,606,094,000'' and insert 
     ``5,611,094,000''.
       On page 85, line 19, further increase the amount by 
     $5,000,000.

  Mr. SPECTER. This amendment, Mr. President, provides for an 
additional $5 million for the adoption opportunities program, bringing 
the total in the bill to $18 million. The amendment is offset by 
further reductions in administrative expenses. It has been cleared on 
both sides, and accordingly I urge its adoption.
  The PRESIDING OFFICER. Without objection the amendment is agreed to.
  The amendment (No. 1095), as modified, was agreed to.


                           Amendment No. 1125

  Mr. SPECTER. Mr. President, very briefly on the pending amendment 
offered by the distinguished Senator from Alabama, I think the debate 
this evening has been very useful. The comments by the distinguished 
Senator from Utah are cogent. We have had the hearings as noted by 
Senator Hatch in the Judiciary Committee. It is tempting to eliminate 
the very substantial tax break which is presented in the reconciliation 
bill. Perhaps that is something that can be done now although the 
considerations advanced by the Senator from Utah are very weighty.
  The amendment offered by the Senator from Alabama to curtail the 
attorney's fees is very much worth considering. I am not sure that the 
proper place for it is on this bill because we really do not know all 
the underlying facts. When you talk about $250 an hour, that is a 
substantial sum of money on an hourly rate. When you talk about a total 
of $5 million, that is a substantial sum of money. The reports are that 
the attorney's fees in the agreement run into the billions. It may well 
be that before an intelligent legislative decision can be made on this 
matter, we will have to know a great deal more about the arrangements 
made by each State with the attorneys, what their work has involved, 
evaluation of the contingent nature, that is, a likelihood of failure 
so that a contingent fee is set and some consideration on the 
likelihood of success because if there is no settlement, then there are 
no attorney's fees to be paid, and that may be a fact-specific inquiry 
which will take some considerable time ultimately by the Judiciary 
Committee.
  But in any event, the stage is set. There are other Senators who want 
to discuss this issue. We will proceed to the conclusion of it when we 
resume consideration of the bill tomorrow morning at 9:30.
  I yield the floor.
  Mr. WELLSTONE. Mr. President, might I ask the manager a question? I 
had come to the floor to speak tonight, but I know it is late and 
people may be anxious to leave. What would be the order of business 
tomorrow? Is there additional time on the amendment of the Senator from 
Alabama?
  Mr. SPECTER. Mr. President, if the Senator will yield, I will be glad 
to respond. The pending amendment will remain in the Chamber. The 
Senator from Illinois, [Mr. Durbin], had made a motion to table and 
then had withdrawn it at my request so that Senators who were not here 
might have an opportunity to debate tomorrow morning. But that will be 
the amendment which we will return to at 9:30 tomorrow morning.
  Mr. WELLSTONE. Mr. President, I wonder whether, with the support of 
my colleagues, rather than taking up more time tonight, I might ask 
unanimous consent to be included in the sequence of that order to be 
able to speak once we start for 5 minutes or 10 minutes? I will not do 
it tonight.
  Mr. SPECTER. Mr. President, if I may respond, I don't think there is 
any unanimous consent order required. If the Senator is here tomorrow 
morning when we proceed with the bill, I am sure he will be recognized.
  Mr. WELLSTONE. I thank the Chair. I will wait until tomorrow, then, 
to speak.
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Alabama.
  Mr. SESSIONS. I want to express my appreciation to the distinguished 
chairman of the Judiciary Committee, Senator Hatch, for his remarks. I 
appreciate them. His committee, the Judiciary Committee, of which I am 
a member, has begun wrestling with these very complex issues. I think 
he is exactly correct. It is a matter that requires the leadership of 
the President. He is going to have to step up to the plate and bring 
his departments of the U.S. Government on board if there is to be an 
agreement. It has so many possibilities of going awry.
  I think, personally, I have not decided whether this legislative 
body, the Congress, ought to get involved in this lawsuit or not. It 
may be the right thing for us to do. Then again it may turn out that it 
is not. But if we do, I think it is appropriate that we limit the 
amount of attorney's fees in these cases. Under the fee agreements that 
I understand are now in place, attorneys, private attorneys, who have 
been hired by the States have been involved in litigation maybe only a 
few weeks and could stand to receive tens of millions, even billions of 
dollars. In fact, most published reports indicate that fees could be as 
high as $10 billion to $14 billion in this litigation.
  That is far too much. That money needs to go to children. That is 
what these lawsuits were about, to have that money go to children for 
children's health, and that is what this bill would be involved with. 
So I feel very strongly about that.
  As to this being a tobacco industry bill, I am surprised the Senator 
from Illinois said that because I am supporting his amendment which 
would add another $50 billion, $60 billion to the tobacco industry, at 
least take away any benefit that now may come to them in that amount--a 
very significant issue. And I have come down on his side.
  I simply say, just as that amendment that came through to change 
perhaps the funding for the tobacco industry to save them a large 
amount of money was not fully debated, likewise the attorney's fees 
that have been out there have not been debated. As a matter of fact, 
they have not been discussed. At the Judiciary Committee hearing at 
which I appeared with Senator Hatch, I asked about attorney's fees of 
several of the attorneys general, and I got only evasive answers.
  So then I submitted written questions to them asking for detailed 
explanations of what kind of fee agreements had been entered into and 
asked them to respond to me in writing. Over a month has passed, and we 
have heard nothing from them. So I say there is a side agreement, an 
unhealthy, secret agreement, it appears, between the attorneys for the 
States and the tobacco industry, that the attorneys general and the 
States are saying they are not responsible for.
  You cannot do that. Mr. President, as an attorney, let me say this. 
An attorney's fidelity must be totally to his or her client, and in 
this instance, these attorneys, these plaintiff attorneys who have been 
hired to represent most of the States involved who have contingent fee 
agreements with their States need to have their total loyalty to the 
State. But if they are over there on the side entering into a fee 
agreement negotiation with the tobacco industry and saying to the 
American people and the people of the various States involved, ``Don't 
worry about the fee agreement, the tobacco industry is going to pay 
that,'' make no mistake about it, that is money taken from the 
children. That is money taken from the settlement that would go to 
benefit the health of people who have suffered from smoking. It is a 
side agreement that is not healthy.
  I have serious questions in my mind as a practicing attorney whether 
or not

[[Page S9012]]

that is ethical because, you see, if that private side agreement 
between the tobacco people and the attorneys about how much money they 
get falls apart, those attorneys get no money--perhaps. And maybe the 
tobacco company can say, well, if you will just agree to this 
restriction or that restriction, we will agree to pay you two or three 
more billion dollars in attorney's fees. That is the kind of unhealthy 
relationship that should never occur in serious litigation, and this is 
certainly serious litigation.

  The Senator from Kentucky from the other party indicated that this 
settlement may exceed $500 billion. We cannot allow 10-20 percent of 
that money to go to attorneys, many of whom have filed lawsuits so 
recently that the ink is hardly dry on them. They have done very little 
litigation. Yet we are at the point of the tobacco industry coming in 
and agreeing to settle and pay it all and the litigation would 
presumably end and then they would get these huge sums in legal fees. I 
think it is a very important matter, and as far as this Senator is 
concerned I will not support any agreement, I will not support any 
global settlement legislation from this body that does not fully 
disclose every dime that is being paid, and I don't think we should.
  In addition to that, I think this body ought to make clear that if 
any settlement does occur, we should cap the amount of legal fees. I 
think $250 an hour is fine pay for any good lawyer, and that is the 
maximum they ought to be paid. If they are not worth that--they do not 
normally charge that--they should not get $250. But we say no more than 
$250 an hour and no more than $5 million per State. So that is 50 
States to perhaps pay $5 million, and we could save substantial sums of 
money, Mr. President, that could go to benefit children's health in 
this country and not be involved in windfalls to attorneys who may have 
done very little work at all.
  I think this is a good bill. I just point out that, of course, if 
there is a global settlement and there needs to be some changes in the 
actual formula or caps involved in the payment of attorney's fees, that 
could be made a part of it. But I think this body right now needs to 
send a message to the people of this country that we are going to 
insist on full disclosure and we are going to put some reasonable 
limits on how much money can be spent on attorney's fees.


                Amendment No. 1125, as Modified Further

  Mr. SESSIONS. Mr. President, at this point I would like to further 
modify my amendment to address the concerns of the Senator from Iowa 
with regard to the ongoing State suits versus the national tobacco 
settlement.
  I send that to the desk at this time.
  The PRESIDING OFFICER. The Senator has a right to modify his 
amendment. The amendment will be so modified.
  The amendment (No. 1125), as modified further, is as follows:

       Strike the last word in amendment No. 1078, as amended, and 
     insert the following: ``Repealed.
       ``Sec.   . (a) General Limitation.--Notwithstanding any 
     other provision of law, if any attorneys' fees are paid (on 
     behalf of attorneys for the plaintiffs or defendants) in 
     connection with an action maintained by a State against one 
     or more tobacco companies to recover tobacco-related medicaid 
     expenditures or for other causes of action, involved in the 
     National Tobacco Settlement Agreement, such fees shall--
       ``(1) not be paid at a rate that exceeds $250 per hour; and
       ``(2) be limited to a total of $5,000,000.
       ``(b) Fee Arrangements.--Subsection (a) shall apply to 
     attorneys' fees provided for or in connection with an action 
     of the type described in such subsection under any--
       ``(1) court order;
       ``(2) settlement agreement;
       ``(3) contingency fee arrangement;
       ``(4) arbitration procedure;
       ``(5) alternative dispute resolution procedure (including 
     mediation); or
       ``(6) other arrangement providing for the payment of 
     attorneys' fees.
       ``(c) Expenses.--The limitation described in subsection (a) 
     shall not apply to any amounts provided for the attorneys' 
     reasonable and customary expenses.
       ``(d) Requirements.--No award of attorneys' fees shall be 
     made under any national tobacco settlement until the 
     attorneys involved have--
       ``(1) provided to the Governor of the appropriate State, a 
     detailed time accounting with respect to the work performed 
     in relation to any legal action which is the subject of the 
     settlement or with regard to the settlement itself; and
       ``(2) made public disclosure of the time accounting under 
     paragraph (1) and any fee agreements entered into, or fee 
     arrangements made, with respect to any legal action that is 
     the subject of the settlement.
       ``(e) Provision of Funds for Children's Health Research.--
     Any amounts provided for attorneys' fees in excess of the 
     limitation applicable under this section shall be paid into 
     the Treasury for use by the National Institutes of Health for 
     research relating to children's health.
       ``(f) Effective Date.--The limitation on the payment of 
     attorneys' fees contained in this section shall become 
     effective on the date of enactment of any Act providing for a 
     national tobacco settlement.''

  Mr. SESSIONS. Mr. President, the effect of this amendment would be to 
make sure this amendment applies to tobacco attorneys, too. It would 
limit their fees if they were in excessive amounts.
  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. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           amendment no. 1122

  Mr. MACK. Mr. President, my colleague Senator Gorton has introduced 
an amendment which would return federal funding for education programs 
serving grades K-12 directly to school districts. Currently, nearly one 
third of all the money spent on education by the federal government 
ends up at the Department of Education. However, of that amount, only 
13.1 percent actually reaches local school districts.
  Mr. President, the Federal Government currently administers so many 
education programs which it cannot efficiently control, nor can it 
determine if it is money well spent. The vast number of these programs 
are redundant and could be easily combined. Over the years, as new 
ideas and innovations in education have been enacted, we have not 
reviewed programs currently in place which serve similar purposes. The 
result has been a growing Washington bureaucracy, with more federal 
regulations affecting the day-to-day workings of our local schools.
  Clearly, when it comes to the education of our young people, one size 
does not fit all. This amendment would remove Washington bureaucrats 
from what should be local decisions. Parents, teachers, and local 
school officials are far better prepared to determine how best to use 
scarce resources. We should express our confidence in parents, our 
teachers and our principals to decide how best to use limited resources 
to meet the needs of children--who ultimately are the ones we must 
serve. Washington bureaucrats, far removed from these local situations, 
cannot accurately make those decisions.
  Mr. President, I am sure that during debate on this amendment and 
debate on this bill, we will hear from others in this body about the 
need to preserve Congress' role in providing for the education of our 
nation's children. Certainly, there is a role for Congress in this 
area, but I believe it is a more limited role.
  I must point out that this amendment would not reduce by one dime the 
amount of funding provided by the federal government for education 
nationwide. Instead, it will ensure that the status quo which has 
sentenced our schools to mediocrity will be reformed to enable parents, 
teachers and local decisionmakers to enact innovative reforms to our 
education system.
  Mr. President, I believe in this approach because I believe in 
parents--who have the biggest stake in their parent's success and 
fulfillment. I believe in teachers--who, everyday, stand before 
classrooms of children and challenge their minds with knowledge and 
ideas, who inspire them to dream and imagine, who help them open the 
doors to success. These are the ones we should seek to help, because 
their efforts will determine how America fares in the 21st Century--
they will determine whether we continue to lead in the world or whether 
we will allow that leadership to fall on some other nation.
  I'm confident that our parents, teachers, and students can build the 
best education system in the world, if only Washington ``experts'' will 
just get out of the way. Let's show them that Congress believes in 
their abilities

[[Page S9013]]

to make the right decisions for the future of our children by 
supporting this amendment. I thank the chair and I yield the floor.


                     Medicare Commission Provision

  Mr. FEINGOLD. Mr. President, I want to thank the Senator from Iowa 
[Mr. Harkin], for his efforts to include language in this 
appropriations bill relating to the Bipartisan Commission on the Future 
of Medicare. I also want to thank his colleague, the senior Senator 
from Iowa [Mr. Grassley], who chairs the Senate Special Committee on 
Aging, for joining me in advocating some additional direction to the 
Commission with respect to long-term care. I very much enjoy working 
with Senator Grassley on the Aging Committee, where he has continued a 
long tradition of bipartisanship.
  Mr. President, the language added to the bill at our request touches 
on one aspect of an enormously important segment of health care, namely 
long-term care. I have been deeply involved in long-term care issues 
for nearly 15 years, and have advocated significant reforms to our 
current system both at the State and Federal level.
  Mr. President, many will recall that as part of the Balanced Budget 
Act of 1997, we created the so-called National Bipartisan Commission on 
the Future of Medicare. Established because of the need to reform and 
modernize the principal health care system of our Nation's seniors, 
that Commission will examine a host of issues relating to health care 
coverage and will make recommendations that we hope can lead to an 
improved Medicare system, one which will not only deliver better health 
care but also provide some relief from the growing pressure Medicare 
has been placing on our Federal budget.
  One of the key issues to be examined by the Commission is the area of 
chronic disease and disability.
  Mr. President, effective treatment of individuals with chronic health 
care needs requires a combination of acute and preventive care, disease 
management, health monitoring, and long-term care services and 
supports. However, as it is now structured, the Medicare fee-for-
service program responds to specific and discrete episodes of care 
through separate providers, and often discourages timely, coordinated 
cost-effective chronic care.
  Mr. President, more than 20 percent of Medicare beneficiaries today 
have chronic health care needs, and they are the fastest growing 
segment of the Medicare population. A major part of the health care for 
these beneficiaries with chronic needs are the long-term care services 
and supports which are separately financed by beneficiaries and their 
families, or, for those without personal resources, by Medicaid and the 
States.
  This latter group of people with chronic care needs, those who are 
eligible for both Medicare and Medicaid, help make up a particularly 
important group of beneficiaries. The so-called dually eligible make up 
about one-sixth of the population of these two programs, but account 
for nearly one-third of program expenditures and rightly have captured 
the attention of policy makers as one of the critical targets for 
policy reforms in the two programs. As a recent hearing of the Aging 
Committee revealed, the lack of coordination between these two 
programs, and more generally between Medicare and long-term care, 
creates perverse incentives for cost-shifting in the health care 
system, and often results in excess cost, inappropriate care, or no 
care at all.
  Mr. President, while the National Bipartisan Commission on the Future 
of Medicare is already directed to examine this critical population, 
our proposal goes further be specifically calling on the Commission to 
examine the potential for coordinating Medicare with cost-effective 
long-term care services.
  Mr. President, I want to underscore the language we had included in 
the bill does not limit or even specify what the Commission might 
consider in reviewing the potential for coordinating Medicare with 
long-term care services. But there are a number of matters deserving 
the Commission's attention that I want to highlight, including the 
success of a number of States, such as Wisconsin, in developing 
effective long-term care programs built on flexible delivery systems 
that deliver more cost-effective, individualized care. The Commission 
should also take a particularly close look at efforts which build upon 
the existing system of informal supports, often provided by family 
members and friends, that currently account for the vast majority of 
long-term care provided in this country.
  More generally, while the primary focus of the Commission will be the 
future of Medicare, as the Commission calculates the future cost of the 
current Medicare program, I urge it take into consideration the total 
costs of care for individuals with chronic illnesses and disabilities, 
including the cost of long-term care services and supports, whether 
those costs accrue to Medicare, Medicaid, private insurers, or 
beneficiaries and their families. It is neither good budgeting policy 
nor good health care policy to partition off health care service 
planning, making changes to one program while ignoring the effect those 
changes will have in other areas.
  Mr. President, unlike the near-term focus of the budget process, the 
recommendations that we expect the Commission will make regarding 
Medicare will be based on a much longer and broader view. Some of the 
defects of the current Medicare program are arguably the result of 
short-term budget considerations that have led to unintended, sometimes 
expensive consequences. By taking a broader view, the Commission can 
avoid some of these past errors, and possibly contribute to one of the 
highest health care priorities we have, the need for significant long-
term care reform.


                           amendment no. 1074

  Mr. CAMPBELL. Mr. President, I strongly support the amendment offered 
by my distinguished colleague from Arizona, Senator McCain. The 
amendment would dedicate an additional $100 million to research on 
Parkinson's disease, an effort driven by my accomplished mentor and 
dear friend, Morris K. Udall.
  The statistics are staggering. While over a million Americans battle 
Parkinson's at a cost of $26 billion annually, the Federal commitment 
to Parkinson's research is only $27 million. While it is not only 
impossible but unfair to try and determine what disease should get more 
funding for research while another gets less, these statistics say 
unequivocally that Parkinson's deserves more.
  While I have many fond memories of Mo, his thirty years of 
unparalleled service to this country, his ever present wit and his 
statesmanship, one of my fondest memories is of a circumstance in which 
he exhibited rarely matched courage and integrity. While both in the 
House of Representatives, I had the honor of crusading with Mo to 
remove a painting from a wall in the Capitol that was both offensive 
and demeaning to Native Americans. That painting, that symbol of 
dominance, hung for years. Mo Udall took it down. He took down many 
such injustices during his tenure in Congress.
  Parkinson's has robbed us of too many valuable people. I feel very 
strongly that the 64 Members of the Senate who cosponsored this bill 
should follow through on their initial--overwhelming--show of support 
and adopt the amendment.

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