[Congressional Record Volume 143, Number 119 (Wednesday, September 10, 1997)]
[Senate]
[Pages S9033-S9059]
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 PRESIDING OFFICER. Under the previous order, the clerk will 
report S. 1061.
  The assistant legislative clerk read as follows:

       A bill (S. 1061) making appropriations for the Departments 
     of Labor, Health and Human Services, and Education, and 
     related agencies for the fiscal year ending September 30, 
     1998, and for other purposes.

  The Senate resumed consideration of the bill.
  Pending:

       Gregg amendment No. 1070, to prohibit the use of funds for 
     national testing in reading and mathematics, with certain 
     exceptions.
       Coats-Gregg amendment No. 1071 (to amendment No. 1070), to 
     prohibit the development, planning, implementation, or 
     administration of any national testing program in reading or 
     mathematics unless the program is specifically authorized by 
     Federal statute.
       Nickles-Jeffords amendment No. 1081, to limit the use of 
     taxpayer funds for any future International Brotherhood of 
     Teamsters leadership election.
       Craig-Jeffords amendment No. 1083 (to Amendment No. 1081), 
     in the nature of a substitute.
       Durbin-Collins amendment No. 1078, to repeal the tobacco 
     industry settlement credit contained in the Balanced Budget 
     Act of 1997.
       Mack-Graham amendment No. 1090, to increase the 
     appropriations for the Mary McLeod Bethune Memorial Fine Arts 
     Center.

[[Page S9034]]

       Coverdell amendment No. 1097, to enhance food safety for 
     children through preventative research and medical treatment.
       Coverdell amendment No. 1098 (to Amendment No. 1097), in 
     the nature of a substitute.
       Specter amendment No. 1110, to reduce unemployment 
     insurance service administrative expenses to offset costs of 
     administering a welfare-to-work jobs initiative.
       Harkin (for Wellstone) amendment No. 1087, to increase 
     funding for the Head Start Act.
       Harkin-Bingaman-Kennedy amendment No. 1115, to authorize 
     the National Assessment Governing Board to develop policy for 
     voluntary national tests in reading and mathematics.
       Harkin (for Daschle) amendment No. 1116, to express the 
     sense of the Senate regarding Federal Pell grants and a child 
     literacy initiative.
       Murray-Wellstone amendment No. 1118, to clarify the family 
     violence option under temporary assistance to needy families 
     program.
       Domenici (for Gorton) modified amendment No. 1122, to 
     provide certain education funding directly to local 
     educational agencies.
       Sessions modified amendment No. 1125 (to Amendment No. 
     1078), to provide for certain limitations on attorneys' fees 
     under any global tobacco settlement and for increased funding 
     for children's health research.

  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.


                Amendment No. 1125, As Modified Further

  Mr. WELLSTONE. I thank the Chair.
  Mr. President, I rise today on the floor of the Senate to express my 
strongest opposition to an amendment which I am sure has been offered 
in good faith but the effect of which really will be to intimidate 
advocates of public health and, in particular, I think amounts to an 
intimidation of the attorney general of the State of Minnesota and, 
again, the public health community who have hired legal advocates on 
their behalf and on the behalf, I might add, of the collective public 
health people in this country.
  Mr. President, let me give a little bit of information about 
Minnesota's tobacco case, because this amendment does not have a 
neutral effect. My colleague, Senator Durbin from Illinois, last night 
pointed this out. In a State like Minnesota we have pored through 36 
million pages, 36 million documents, in what promises to be the biggest 
court case this winter. This will bring to light a tremendous amount of 
information in all likelihood, I think, dealing with some very serious 
abuses by the tobacco industry, which could lead to a very far-reaching 
and major financial settlement for Minnesota and also lead the way for 
other States. It also could lead the way toward some really dramatic 
protection for people in this country. This amendment amounts to 
nothing less than an effort to intimidate advocates of public health 
and to intimidate the attorney general of the State of Minnesota.
  The $250 per hour or $5 million cap altogether does not take into 
account, as my colleague from Illinois mentioned last night, different 
efforts that have taken place in different States. But to me, again, 
regardless of the motivation, the effect of this amendment is a get 
Minnesota amendment and, I might add, it really goes after, again, most 
importantly, advocates of public health.
  I have no idea--I am not a lawyer--what the particular arrangements 
are between the attorney general and the contract with lawyers who are 
working with our State, but I doubt very seriously that we, the U.S. 
Senate, have the constitutional right to directly intervene in that. I 
do know this amounts to nothing less than an effort to get people to 
back down. I don't think that will happen, I say to my colleagues, not 
in Minnesota.
  Let me say a little bit about Minnesota's tobacco case. Minnesota is 
the first State in the Nation to charge the tobacco industry with 
consumer fraud and antitrust violations and the second State to seek 
Medicaid reimbursement.
  It is the only State with a private co-plaintiff, Blue Cross and Blue 
Shield of Minnesota.
  Minnesota's outside counsel, Robins, Kaplan, Miller, & Ciresi, has a 
national reputation for resolving complex litigation battles against 
corporate giants, including the Dalkon shield case and the Bhopal, 
India, chemical spill case.
  This case was launched in August 1994. There are 36 million 
documents. The State has won the majority of pretrial motions and all 
appeals, including one in the U.S. Supreme Court.
  The State has secured 30 million pages of documents through 
discovery. Minnesota has the largest collection of tobacco documents in 
the world, housed in two secured depositories in Minneapolis and 
London.
  Public documents already cited as evidence in the case have detailed 
youth marketing, enhancement of the effect of nicotine, admissions of 
health problems, and other disclosures central to Minnesota's 
allegations. Most of the evidence remains under seal at the tobacco 
industry's insistence.
  The court is reviewing tobacco companies' most secret documents, 
formerly hidden under attorney-client privilege claims, for possible 
disclosure. That is the current status.
  The Minnesota case is rated by top tobacco stock analysts at 
Bernstein Research as ``the biggest threat'' to the industry.
  The trial begins January 1998.
  I think that is what this is all about, at least in its effect. 
Minnesota's court case is the biggest threat to the industry. We will 
see a disclosure of information that will be so critical to the health 
of people all across the country. This amendment amounts to an effort 
at intimidation toward the advocates of public health who have hired 
lawyers as their advocates and, again, I think is really aimed right at 
the State of Minnesota, really aimed right at the attorney general of 
Minnesota.
  This is a tobacco industry amendment. This industry doesn't want a 
State like Minnesota to go forward. This industry doesn't want lawyers 
out there representing the public health community. Let's be realistic 
about it. The only way you can go through all these documents, the only 
way you can put together this kind of case, the only way you can go 
after these tobacco companies, these giants, is by having lawyers 
working for you. That is what the State of Minnesota has done. That is 
what the public health community has done. This amendment is an 
amendment aimed at trying to bring a halt to this process.
  Mr. President, I am not, again, an attorney, but I will raise two or 
three final points. One, I don't really know how we in the Senate can 
say to the attorney general of Minnesota or the State of Minnesota, 
whatever your contractual arrangements are--and I don't even know what 
they are with lawyers representing your State--we're going to come in 
and essentially declare that null and void; we're going to supersede 
that contractual arrangement. I don't even know if we can do that.
  No. 2, I will just tell you that when you are talking about 30 
million pages of documents through discovery, this cap is not neutral 
in its effect on a State like Minnesota, and $5 million compared to 
what Minnesota might very well be able to accomplish by way of a damage 
suit, by way of compensation for the people of Minnesota, by way of 
information for the public, by way of what information comes to those 
of us in the Congress, by way of what we can do with that information 
to protect the public health really amounts to hardly anything.
  Finally, Mr. President, there is a world of difference between $5 
million and the amount ultimately that that kind of legal counsel on 
behalf of the public health community will be able to obtain, again, by 
way of financial compensation and by way of information and by way of 
protection for the public health, all of which has to do with research 
and protection of people's health in this country.
  So let us just be real clear about this amendment. This is the 
tobacco company's dream amendment. That is what this is all about. And 
that is what this vote is all about. I think my colleagues will be 
making a big mistake if they do not think that people cannot see 
through this.
  Just a little bit of chronology here so that people in the country 
understand this debate right now. And I think they do already. My 
colleague from Illinois, Senator Durbin, joined by Senator Collins, 
Republican from Maine, in a bipartisan effort, came to the floor of the 
Senate--let us just be sort of historical about this for a moment--and 
said, wait a minute, we had this tax package, and we had this budget 
bill,

[[Page S9035]]

and that is what it was supposed to be all about. And lo and behold, 
somebody slipped in a $50 billion relief package for the tobacco 
companies that they could use as credit toward any final compensation 
that they owed to people in this country.
  My colleague from Illinois was very polite. I will be just as polite 
because I do not really know who did it. He said that the tobacco 
industry's lobbyists put this in the bill. They did not actually, 
literally do that. Senators and Representatives did that. Actually, the 
tobacco companies' lobbyists are very powerful, obviously. We see it 
again with this amendment. But they are not actually so powerful, as 
the Chair knows, that they can actually directly write the amendment, 
literally be the ones who put the amendment in in the conference 
committee. They cannot actually do that. They cannot actually sit there 
and pretend like they are Senators and Representatives. Actually some 
Senator or Representative has to do that.
  Mr. SESSIONS. Mr. President, will the Senator yield for a question?
  Mr. WELLSTONE. I will be pleased to.
  Mr. SESSIONS. I have three questions.
  First, do you know whether the attorneys in the Minnesota case are 
being compensated on a contingent fee basis, that is, in which they 
would get a percentage of the recovery, and in many of these States 
they have done not much more than file a lawsuit, and already the 
tobacco industry is willing to pay large sums of money which would 
enable attorneys to receive huge fees for almost no work? I understand 
perhaps Minnesota is different and that they may be, perhaps, the only 
State in which the attorneys are employed on an hourly basis. Does the 
Senator know whether that is true or not?
  Mr. WELLSTONE. Mr. President, why not take all three questions and 
then answer all three of them.
  Mr. SESSIONS. That is the first one.
  Second, is the Senator aware that, with regard to the receipt or 
copying of the documents, those are expenses which are not covered by 
this bill, or at least this bill provides a full payment of expenses to 
attorneys who incur them legitimately, even in furtherance of these 
lawsuits, and would be reimbursed? I pose those two questions to the 
Senator.
  Mr. WELLSTONE. My understanding is that on the first arrangement--and 
I am just learning about the arrangement right now--it is a contingency 
fee, which was challenged by the tobacco industry, and the tobacco 
industry lost that in court, in response to your first question.
  On the second question, I think, still, it does not have anything to 
do with the----
  Mr. DURBIN. Would the Senator yield for a question?
  Mr. WELLSTONE. I would be pleased to.
  Mr. DURBIN. I believe the point by the Senator from Alabama is his 
covers the expenses but does not cover the legal fees. So the expenses 
of literally physically collecting all these documents would be 
covered, but to have the first attorney sit down and try to read them 
is going to be limited. So it is one thing to have a warehouse full of 
documents, but if you want to have competent legal minds reading those 
documents, deciding what is important for the lawsuit, the Senator from 
Alabama says that is fine, but we are going to put a ceiling on this, 
there is just so much money to spend.
  Mr. SESSIONS. I guess the answer to the question, Mr. President, was 
the Minnesota case is not on an hourly basis but on a contingent fee 
basis?
  Mr. WELLSTONE. That is my understanding.
  If I could go on--I think I have the floor--I was going to say to my 
colleague, it is my understanding also that the tobacco industry 
challenged that and that they lost in court.
  Then in response to the second question, actually what my colleague 
from Illinois said was what I was going to say as well. Again, I am not 
a lawyer, but it is pretty clear to me that it is fine to get the 
compensation for the copying or whatever needs to be done with all the 
documents, but somebody has go through those documents, somebody has to 
read the documents, and somebody has to try to determine what those 
documents really are saying in terms of culpability, in terms of what 
might have happened. That is, of course, the work that the lawyers are 
doing on behalf of the public health community.
  But, Mr. President, since there isn't a third question, let me go 
back because there are other colleagues on the floor. And I will be 
pleased to----

  Mr. SESSIONS. I will be glad to present my third question.
  Mr. WELLSTONE. Sorry. You have the third question. I will be pleased 
to yield for the third question.
  Mr. SESSIONS. Did the Senator know that this Senator refused to take 
money from the tobacco industry as attorney general and has sought 
tougher laws against the sale of tobacco to children and is not a tool 
or pawn of any tobacco company? In fact, I am offended it would be 
suggested otherwise.
  I believe tobacco is a very unhealthy substance. I think it is quite 
plain it causes cancer and premature death, and we ought to do 
everything we legitimately can to reduce its use. In fact, I am 
supporting the amendment of the Senator from the State of Illinois and 
also of the Senator from Maine, Senator Collins, that would prevent 
them from having a $50 billion benefit. My concern is $14 billion in 
legal fees to many attorneys who do not deserve anything like that kind 
of fee.
  Mr. WELLSTONE. Mr. President, let me respond to the third question. 
Then I will just finish up. But the first question actually raised by 
my colleague from Alabama raises an interesting question.
  In response to the third question, I say to my colleague from 
Alabama, I very much appreciate what he said. That is why I was very 
careful in the beginning saying--I learned a long time ago to assume 
good faith on the part of other colleagues, to basically assume people 
are doing what they think is right. I would not suggest that my 
colleague is a pawn of anybody.
  What I said was that the amendment, whatever the intention, has the 
effect, will have the effect, of intimidation of the public health 
community and will have the effect of and amounts to an effort in terms 
of its effect to intimidate the attorney general in Minnesota and the 
State of Minnesota. That is exactly true, and in that respect, it is a 
tobacco company amendment.
  Mr. President, actually--to go back to Minnesota--I find it 
interesting that what happened apparently is Minnesota went to a 
contingency fee, and then as a result of that, the tobacco companies 
challenged this in court. So now we have an amendment on the floor 
which is another way of essentially trying to deal with this 
arrangement in Minnesota. I do not think we in the U.S. Senate should 
be doing this as it affects different States.
  Mr. President, just a little bit of history to bring us to where we 
are right now.
  So what happened is that unnamed colleagues--I mean, it was not the 
tobacco industry; they did not actually sit down in the committee and 
put the amendment in--somebody tucked the amendment in. Old politics, 
back room politics, you know, it just happens in the dark, just happens 
behind the scenes. I mean, once upon a time people viewed that as being 
clever legislators. It just does not work that way any longer.
  So my colleagues come to the floor, and they essentially say, ``Look, 
let's just at least knock that out. That ought not be in there.'' That 
is what this amendment is about. That would be a proposition that we 
could have an up-or-down vote on.
  When I was back in Minnesota and the stories broke that in the tax 
bill we had this $50 billion tax break, tax credit, tax giveaway to the 
tobacco industry, people in Minnesota were saying to me, 
``Congratulations, Paul. You voted against that tax bill. You voted 
against that budget bill. You knew, and a lot of other people didn't.'' 
And I said to them, ``You know, I've got be honest. I voted against 
that bill for other reasons. I didn't know. I would love to tell you I 
was the one person who did and that is why I voted against it, but 
actually I didn't know.''
  This was just sort of tucked in there. Some Senators, 
Representatives--one, two; I do not know how many--put it in there. It 
was very cleverly done. But my colleagues have come to the floor and 
said, ``Look, we didn't know that

[[Page S9036]]

was in there. This is not the way it's supposed to work. This is not 
exactly a political process with a lot of accountability. We ought to 
take it out. We can have an up-or-down vote on that.''
  Now what we have is an amendment with the intended effect to 
intimidate advocates of public health. I mean, that is not the 
motivation, but that would be the effect of it. I do not know that it 
is an intended effect. It probably isn't. But the effect of it would be 
to intimidate advocates of public health, to intimidate States like 
Minnesota where we have plowed through, again, 30 million pages of 
documents. The Minnesota case is rated by top tobacco stock analysts at 
Bernstein Research as ``the biggest threat'' to the industry. And I can 
see exactly what is going on here.
  This is an amendment that is a dream come true for the tobacco 
industry to try to go after States like Minnesota, to try to make sure 
that States cannot go through with this. If that is what happens, then 
we all lose.
  So, Mr. President, let me just make it clear that this amendment, if 
passed, would have the effect of intimidating the public health 
community, advocates for the public health community, and States like 
Minnesota that promised to bring to light, in what would be a huge 
court proceeding, information that will be vital to the public health 
of this country.

  This amendment is not neutral in its effect. This is a tobacco 
industry amendment. That is what this is all about. Therefore, I urge 
my colleagues to vote no. As a Senator from Minnesota, I am proud that 
the Minnesota case is viewed as the biggest threat to the industry. I 
am proud that the trial is going to begin in January 1998. I am proud 
that, I think, a whole lot of information is going to come to light and 
we are really going to learn much more about what exactly has been 
going on within this industry and how it has affected our families and 
how it has affected our children.
  But, Mr. President, this amendment is a get Minnesota amendment. This 
amendment, with its caps, is an effort to go after Minnesota, to go 
after advocates for Minnesota, to go after the public health community, 
to make sure that we do not have lawyers that are working on this and 
to make sure that ``the biggest threat'' to the industry court case may 
never take place. It is an outrageous amendment. I hope colleagues will 
see it for what it is and it will be voted down resoundingly.
  Mr. President, I yield the floor.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I know that it is the desire of the 
Senator from Illinois and others to have the Senate make a judgment on 
this issue. But it is a very, very important issue. I welcome the 
opportunity to join my colleagues in making comments about the 
implications of this particular amendment. And I do so at this time.
  Mr. President, the Sessions amendment is really one more attempt to 
aid the tobacco industry at the expense of the public interest. Make no 
mistake about it, its effect would be to set up a major roadblock 
preventing the States from pursuing their cases against the tobacco 
industry.
  The Sessions amendment, as I read it, would restrict the ability of 
States to retain the attorneys to pursue States' claims against the 
tobacco industry. As we all know, 40 States have filed suit against the 
tobacco companies. So far only two of those cases have been settled. 
Just yesterday, the tobacco industry said that it will no longer be 
settling cases. The Texas case is scheduled to go to trial within the 
next few weeks.
  As Senator Wellstone has pointed out, Minnesota, which has done an 
enormous amount of work on covering the sordid history of the tobacco 
industry, is scheduled to go to trial in just a few months.
  So it would be an outrage for this Senate, acting at the behest of 
the tobacco industry, to handcuff the States as they seek to compensate 
their citizens from an industry that kills 400,000 citizens each year.
  If Senator Session's intent is to regulate the amount of attorney's 
fees to be paid as part of a national settlement, clearly, this 
amendment is premature and unwarranted. Congress has not even begun to 
seriously debate the merits of the national proposal. The issue of 
attorney's fees in a settlement should be considered after there is a 
settlement, not before.
  The real intent of the Sessions amendment is clearly demonstrated by 
the fact that, as originally drafted, it only sought to restrict the 
attorney's fees of attorneys representing the States, not the 
attorney's fees of the tobacco industry. To restrict the plaintiff 
attorney's fees would dramatically tilt the already uneven playing 
field even more in favor of the tobacco companies. While Senator 
Sessions has now added defense attorneys to his amendment, regulating 
the amount of attorney's fees paid by the private party is highly 
questionable and probably unconstitutional. Thus the effect of the 
amendment would still be to place a burden just on the States.
  Since under the terms of the settlement plaintiff attorney's fees 
would be paid by the tobacco industry and those funds are not to come 
out of the proposed $368 billion national settlement, limiting 
plaintiff attorney's fees would not produce an additional dollar for 
either the State governments or the Federal Government. It would merely 
further enrich the tobacco industry.
  While the amendment says that the money saved would be paid to the 
Federal Government for use by the National Institutes of Health, the 
amount saved would never be determinable, and thus no significant 
payment to the Government would result.
  So make no mistake about this amendment, blessed by the tobacco 
industry, it is a ploy to kill the Durbin amendment. We were all 
outraged when we learned that a paragraph had been slipped into the 
budget agreement to give the tobacco industry the $50 billion credit. 
The amendment, if it is allowed to remain law, would cost the taxpayers 
$50 billion.
  There has been a justified outcry against that gross abuse of the 
legislative process. And there is now widespread support for repealing 
that ill-conceived provision. Big tobacco knows that it cannot prevent 
repeal directly, therefore, it has embraced the Sessions amendment as a 
diversionary tactic.
  Let us decisively reject this cynical gambit, beat the Sessions 
second-degree amendment, and overwhelmingly approve the Durbin 
amendment. To do otherwise would be to erect an enormous roadblock in 
the path of the States pursuing justice for their citizens against the 
tobacco cartel.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Thank you, Mr. President. I speak in favor of the Sessions 
amendment.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. ENZI. I have not even given my speech. I don't know how you could 
have a question.
  Mr. DURBIN. It is about the procedure we are to follow during the 
remainder of this debate.
  Mr. ENZI. I yield for a question on the procedure.
  Mr. DURBIN. I wonder if the Senator would join Senator Sessions and 
myself in a discussion of a limit on the remaining debate on this 
amendment, if we could reach an accommodation and agreement as to how 
much time we would spend on the remaining debate?
  Could I suggest, if the Senator would be kind enough to be party to 
this discussion, that perhaps we agree to 40 minutes, equally divided, 
between us, if that is agreeable to the Senators on the other side.
  Mr. SESSIONS. Will the Senator yield?
  Mr. ENZI. I yield.
  Mr. SESSIONS. I think there is some discussion about us voting at 
10:45. I think that would be agreeable with me if there is no 
objection. I think I indicated to the Senator from Illinois that I 
might need 15 minutes. That would be for me, personally. I think there 
are some other Senators that would want to talk during that time on 
this issue. I would be prepared to agree to that, but I would not want 
to limit my own time, the whole argument, in favor of this bill, to 15 
minutes.
  I want to say that to the Senator so I am not misleading him about 
the time.
  Mr. DURBIN. I might not have caught the last comment made by the 
Senator, but it is my understanding we are going to take a vote on a 
motion to

[[Page S9037]]

table that I will offer at 10:45 and the time between now and then will 
be equally divided between the proponents that Senator Sessions shall 
acknowledge, and the opponents that I shall acknowledge on my side, is 
that correct?
  Mr. SESSIONS. I have some concern. My concern about that is that the 
opposition to this amendment has already been talking at least 20 
minutes, so I do not think it would be appropriate and I would not be 
able to agree to an evenly divided 22 minutes on each side. Perhaps if 
you added 15 minutes to that to our side and we voted at 11 o'clock, I 
would be prepared to consent to that.
  Mr. DURBIN. I have no objection.
  The PRESIDING OFFICER. Is there any objection?
  Mr. ENZI. I agree to that time limit as well.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I am sorry, I want to make sure there is 
clarity here.
  The debate will continue now for an hour, evenly divided, is that the 
point, and the vote to be taken at 11 o'clock?
  The PRESIDING OFFICER. The debate will conclude at 11.
  Mr. SESSIONS. What I indicated I would agree to would be that we 
would add 15 minutes to the 22 minutes that you have, making 37 minutes 
for the proponent of the amendment and 22 minutes for the opposition. I 
think that would be fair in light of the fact that you have already 
taken more time than that this morning in opposition to the Senator's 
amendment.
  The PRESIDING OFFICER. The Chair understands that clarification. That 
would be in order.
  Mr. DURBIN. Thank you.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. ENZI. Mr. President, I do not have very many remarks on this but 
my remarks have grown just since I have been here this morning.
  I am fascinated with this accusation that my fellow Senator from 
Alabama is doing this on behalf of the tobacco folks. I have not seen 
him do anything that has looked like it was on behalf of the tobacco 
folks in this settlement. I have not done anything on behalf of the 
tobacco folks in this settlement, and during my campaign, even though I 
was desperate for money, I didn't accept any money from the tobacco 
folks.
  I am in support of the second-degree amendment and I am in support of 
the first-degree amendment. I am in support of both of them because 
they both leave all the money on the table. That is kind of hard to 
determine. We do not know at this point what the money is that is on 
the table. The Senator from Kentucky last night went through quite a 
discussion of how much it might be in addition to $368.5 billion, but 
this debate is about how much less than $368.5 billion it might be.
  Quite frankly, I am fascinated with the whole discussion on the 
tobacco settlement. I hear these comments about whether it is 
constitutional to limit attorney's fees or not. I cannot tell you for 
sure that it is constitutional for us to be talking about a tobacco 
settlement at all. This is an arrangement that the States entered into, 
through some lawsuits, and then some discussions, and now they are 
asking us to seal the deal on their behalf. Usually they are asking us 
to keep our hands out of their business, and I am in favor of doing 
that. I think the States have some rights that we have infringed on for 
a long time and that it is our job here to return as many of those 
rights to the States as we possibly can.
  So now we have the States saying, ``Please meddle in our affairs and 
seal this deal for us.'' Quite frankly, I am not hearing them say, 
``Meddle in this deal but don't meddle in the attorney's fees.'' They 
are not saying that. We are not even sure what the attorney's fee 
arrangements are between the different States.
  If we have a constitutional right to do one, seal the deal, I think 
we have a constitutional right, too, to make sure that we understand 
what the attorney's fees are.
  When this passes it will not be the final time that it will be 
debated. There will be a conference committee on it and one of the 
things I have learned in the short time I have been here in the Senate 
is that those conference committees can do almost anything they want. 
When this particular amendment comes back it can have eliminated every 
concern of the people in the House and the Senate. Everything we have 
debated here can be changed or it can be left out.
  I think at this point it is extremely important that we talk about 
the attorney's fees and not let everybody in the country go running off 
to hire more attorneys at whatever rate they can entice them. Quite 
frankly, I think this could turn into one of the biggest lotteries in 
the United States. I think we need to have some parameters.

  Now, the parameter that is in this amendment is $5 million, or $250 
an hour for each and every hour they put in the process. It was 
mentioned just a little while ago that you have to have people read the 
documents and determine what is important out of several million 
documents. Well, each and every one of those people reading those 
documents would get $250 an hour, not just the lead attorney, and him 
having to separate it out to the people reading the documents for him, 
everybody gets $250 an hour. That is quite an economic boon. The only 
limitation on it is $5 million per State.
  Do you think these people went out and obtained $5 million worth of 
State money or even suggested that attorneys ought to be able to get 
that through a contingency fee? If they did do that, why are they 
turning around and asking us to confirm what they did, but saying, ``We 
cannot give you the details?'' This amendment will bring out the 
details, and it is not the final action. The first-degree amendment 
brings out the details.
  We found that there was a stipulation in the last conference report--
it was not an action we took, it was a conference report action--that 
there would be a credit against the tobacco tax, and we say, no, we 
will put that back on the table. I am all for putting that back on the 
table. We are starting to commit settlement money without having a 
settlement, without having a deal and without knowing whether the money 
is for the Federal Government or for the States. It is too premature to 
make those kinds of deals.
  I commend the Senators from Maine and Illinois for their effort to 
get the cigarette tax back on the table so we can decide, and I commend 
the Senator from Alabama, Senator Sessions, for putting the attorney's 
fees on the table so we can take a look at whether they earned them or 
not and what part they played in this process. It seems to me to be 
logical.
  Another little twist on this whole tobacco settlement is we are 
talking about several years of payments in the tobacco settlement, but 
we are talking about upfront, putting them out of business. There is 
not much clamor against putting them out of business, but you do not 
get money over a long term from somebody that you put out of business.
  We want to stop the cigarette sales. We want to get people to quit 
smoking and having the harmful residuals that are showing up from the 
tobacco, but are we going to give away the first money that comes in, 
the money that is most assured of having, to the attorneys? And then 
when we put them out of business, saying ``What happened to the other 
$300 billion we were going to get out of the bill? How come we don't 
get the money?'' We committed that money.
  So I certainly hope that the Senate will be careful and not commit 
money that we do not have, commit money that we do not understand how 
we are going to get, commit money that it may not be constitutional to 
take. But I do hope we will investigate and work this thing to the 
greatest benefit possible for stopping smoking and helping the health 
situation in this country.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Smith of Oregon). The Senator from 
Alabama.
  Mr. SESSIONS. I thank the Senator from Wyoming for his comments. He 
is a very thoughtful Member of this body and watches after the 
taxpayers' money with great interest. I think his comments are right on 
point. I am delighted to have him share those with us today.
  We are talking about allowing $5 million in attorney's fees to be 
paid. In addition to that, we are talking about allowing unlimited 
amounts of money to be spent for expenses in a litigation.

[[Page S9038]]

 That could be for computerization, committees, receiving records, 
clerks analyzing records and collating records, filing records, and 
storing records.
  I have been an attorney for a long time. This idea about 30,000 
documents, that is what you normally say when you come to court and you 
are not ready to go to trial and you say, ``Judge, we have 5,000 
documents.'' Well, probably 4,999 of them are some sort of receipts or 
documents that do not even need reviewing, have no real significance to 
the issue at hand, but there may be a few in there that do. That is a 
price of fame about how many documents it is--suggesting the great 
complexity of the case that may have very little to do with the 
complexity of the case.
  Let me say this, there has been a lot of talk about big tobacco. I am 
not supporting big tobacco. I am supporting the amendment that is on 
the floor today.
  What I would like to say is there is another big political force in 
this country, there is another big force in this country that attempts 
to work its will, and that is the plaintiff lawyers. They are one of 
the major contributors to campaigns in this Nation. They receive 
settlements of millions of dollars in lawsuits and contribute millions 
of dollars to people, politicians and judges and others who further 
their view of what litigation is about.
  Now, I believe in litigation. I am not against litigation. I am not 
against the lawsuits. I do not want to pass a bill that would stop 
these lawsuits. I am going to tell you we are talking about not just 
millions of dollars, not just tens of millions of dollars, not just 
hundreds of millions of dollars in legal fees. We are talking about 
billions of dollars, tens of billions of dollars.
  Published reports indicate that this time that the plaintiff 
attorneys, these private attorneys who are hired to do these cases by 
the State attorney generals, they expect to receive $10 to $14 
billion--billion dollars.
  In the State of Alabama, outside the education, the general fund 
budget of the State of Alabama is less than $1 billion. We are talking 
about a small group--not hundreds and hundreds of attorneys, but a 
small group of probably less than 100 firms, probably less than 50 
firms, receiving $10 to $14 billion in legal fees. Many of these States 
have only just filed their lawsuits. The tobacco company comes in and 
agrees, and they put the money out on the table--$300, $400, or $500 
billion on the table. Most of these attorneys have contingent-fee 
contracts, in which they intend to receive a percentage of that money, 
and they did little more than copy a lawsuit and file the same lawsuit 
some other lawyer filed in some other State. They are entitled to do 
that under their fee agreement. It is not right. It is money that ought 
to be going to the health of children in America.
  This bill says we are going to put a limit on it, and $5 million is a 
pretty good legal fee. In my opinion, $250 an hour is high-paid 
attorneys. I think anywhere else you would see that. So we think that 
is a good limitation on it. And it is unlimited on expenses that may be 
incurred. I think, Mr. President, this is a good way to deal with this 
matter.
  I am going to tell you what has offended me. I was a State attorney 
general just last year, and I had some knowledge of how this litigation 
was being managed and how these attorneys were being hired on a 
contract basis. So I have asked about that when we have had hearings in 
the Senate Judiciary Committee of which I am a member. I have asked one 
of the attorneys general what the fee agreement was in his State. He 
avoided answering that. Others have asked that question. We have gotten 
no answers. I have written an attorney general and two of these 
plaintiff lawyers and asked them, over a month ago, to tell me the 
nature of their fee agreement and how much they expected to get. I have 
yet to hear from them. Senator Grassley, a member of the Judiciary 
Committee, has also written letters asking about how much money is 
going to be paid for attorney's fees, and they won't say. They have 
everything else spelled out in this global settlement, but they don't 
talk about the billions of dollars that will be going to plaintiff 
attorneys, many of them who put little work into the case. They don't 
want to talk about that.
  In fact, this whole settlement agreement is designed to conceal the 
amount of money paid as attorney's fees. There is no other way to 
describe it. I hate to say that. It is a serious matter, what is 
happening here. Let me explain to you, as a litigator and attorney 
myself, and former attorney general, I have an appreciation for this 
matter. These private plaintiff attorneys who expect to make themselves 
rich on this settlement representing the States involved have said: We 
won't talk about our attorney's fees publicly. We will just enter into 
a side agreement with big tobacco and they will pay our attorney's 
fees. The tobacco industry will pay our attorneys' fees. The State of 
Alabama, the State of Minnesota, or the State of Illinois won't have to 
pay our attorney's fees. The tobacco industry will pay our attorney's 
fees. That is a joke. That is not a way to settle a lawsuit. These 
attorneys work for the State, who is supposed to be paying their fee, 
not the party on the other side, not the person they are suing. They 
should not be paying the fee in a secret arrangement.
  These attorneys are representing the State, the people. We need to 
know and we are entitled to know how much they are being paid. This 
bill says that they must make public any fee agreements they have and 
report to the people how much they expect to receive. I think that, at 
a minimum, we need do that. It is time to send a message that we are 
not going to tolerate this behavior. Everything else is going to be on 
the table. We are not going to have bills that go through to provide 
tax benefits to tobacco and we are not going to have plaintiff lawyers, 
who are some of the biggest contributors to political campaigns in 
America, enriching themselves any more than tobacco ought to enrich 
itself with a secret, side agreement.
  Now, let me talk about that just a little more. The problem --and I 
think any lawyer would recognize this--is a conflict of interest. The 
attorney for one side says to his client: Don't worry about the 
attorney's fee, Mr. Client. I will get the attorney's fees from the guy 
we are suing. He will pay me and we don't need to bother to tell you 
about that. See? So the deal is, well, you get into a tough point in 
the negotiation and you can't reach a settlement, and big tobacco says 
to the attorney for the State of Alabama, or the State of Illinois, or 
the State of Minnesota: Well, why don't we just add a billion dollars 
for attorney's fees, Mr. Attorney. Maybe you can agree to this idea.
  See, that is the fundamental conflict that is there. I think this 
probably would violate the standard rules of ethics. Certainly, it 
would violate the high standards of the legal profession. And I am sure 
any group of prominent attorneys asked about that would express very 
serious concerns about that because it presents a conflict of interest 
and the kind of activity that ought not to be tolerated. So I think we 
need to get into this. I think we need to limit these fees and take 
that money, as our bill does, and send it to the National Institutes of 
Health so it can be used for research on children's diseases. I think 
that is the appropriate use of any of these excess fees.
  Mr. President, let me just say this. There are a lot of States who 
have just recently filed these suits. I submit they have done little 
more than copy the suits that some of these other States have filed. 
Yet, they are large States and they are going to receive tens of 
billions of dollars, and based on what I understand may be a common fee 
arrangement, these attorneys would be entitled to receive 25 percent of 
the recovery. I don't know why the published reports say that it is $10 
to $14 billion. That seems to me to be less than some of these 
arrangements. Maybe, but at any rate, it is too much. Twenty-five 
percent of that may be $100 billion in legal fees, which could provide 
all kinds of assistance and aid to dealing with children's diseases and 
health-related matters, many of which we ought to focus on tobacco, 
because we do know that tobacco is a very unhealthy substance. We know 
that teenagers who become smokers find it extremely difficult to quit 
later as an adult. In fact, it is many times more difficult for a 
person to quit smoking if they commence smoking as a teenager than if 
they began as an adult. That is why we

[[Page S9039]]

need to deal with the health question of teen smoking and why I think 
it is an important national issue. I salute those who believe in doing 
something about it.
  Finally, let me just say this. What business do we have in involving 
ourselves in this kind of litigation and trying to involve ourselves in 
what kind of attorney's fees should be paid? The reason we are involved 
in it is because we have been asked to. The attorney generals, these 
plaintiff lawyers, and big tobacco have all asked us to involve 
ourselves and legislate this settlement. That is an interesting, 
probably unprecedented event, so far as I know, in the history of this 
country. We are talking about dealing with that professionally and 
analyzing it. A number of committees in this body are looking at it 
today, and I am sure it will be hammered out and much will be done. But 
I simply say that if this body does not legislate a global settlement 
concerning this litigation, this amendment will have no effect. It 
takes effect only if there is a global legislative confirmation of some 
sort of this settlement. At that point, I think it is appropriate for 
us to limit attorney's fees and deal with this. As a matter of fact, I 
think it is more than appropriate; I think it is absolutely essential 
that we do so.

  So, Mr. President, I say to this body that this amendment is, in no 
way, designed to assist big tobacco. I am offended that anyone would 
suggest that it does. It is designed to put money in the hands of 
children by taking it from lawyers who are about to receive one of the 
biggest windfalls in the history of litigation--not one of the biggest, 
but the biggest windfall in the history of litigation in the entire 
world is about to occur. Attorneys are about to receive tens, hundreds 
of millions of dollars for cases they only worked on a few months. A 
few firms may have worked longer, but most only have worked a few 
months on these cases and have not expended large sums of money. This 
amendment gives them a very generous $5 million in attorney's fees and 
an unlimited expense account to carry on their litigation. And, in 
addition, it says there has to be some reasonable limits. We are not 
going to allow them to have a jackpot justice and make tens of hundreds 
of millions of dollars off of litigation of this kind.
  So I say to the distinguished Members of this body that this is a 
proper thing for us to do. It is a proper time for us to do it. I also 
say there is something unhealthy here, something that does not quite 
smell right, when we have secret agreements on attorney's fees, 
representing billions of dollars, and they won't even be discussed at a 
time we are being asked to evaluate this entire settlement.
  So, Mr. President, I strongly believe that this is a reasonable and 
fair amendment. It allows very generous attorney's fees and expenses to 
be paid, but sets a cap on it so the people of this country can know 
that the recovery in these lawsuits is going to help and not go to 
attorneys in a windfall.
  Mr. President, I yield the floor.
  Mr. DURBIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Would the Chair be kind enough to alert the Members as to 
the remaining time allocated to both sides?
  The PRESIDING OFFICER. The Senator from Illinois has 22\1/2\ minutes. 
The Senator from Alabama has 16 minutes and 8 seconds.
  Mr. DURBIN. I thank the Chair.
  Why are we here today? Because the tobacco company lobbyists, at the 
last minute, in our tax bill, which we considered several weeks ago, 
managed to sneak in a provision that was not debated on the floor of 
the Senate, nor on the floor of the House. It was never brought to 
public light. It wasn't discussed by the leadership, by anyone. And 
this provision, which is 46 words at the end of the tax bill--a 
provision which they hoped no one would notice--gave to the tobacco 
companies a $50 billion setoff against any tobacco settlement. The 
tobacco companies that came to us and said, ``We have learned our 
lesson, we are a new industry, we are sensitive to the public health 
problems we have created,'' managed to sneak in in the dead of night 
and put in this provision, which gave them a $50 billion setoff.
  Outrageous. When it was discovered and when we went about Capitol 
Hill, from office to office, saying, ``All right, who is going to claim 
pride of authorship here?'' Not a soul would admit they authored this 
provision. After weeks of investigation, finally, a staff member came 
forward and said to the USA Today that it was prepared, word for word, 
by the tobacco companies. They put this provision in the law. They put 
it at the tail end of this bill, and the leadership on Capitol Hill 
looked the other way, at best. As a result, this $50 billion outrage is 
now in the law.
  Senator Collins of Maine and I have offered an amendment to repeal 
that. Now, the tobacco companies don't like our amendment. They have 
already said publicly that if the Durbin-Collins amendment is adopted, 
it is going to jeopardize the settlement. They want a $50 billion 
windfall. Well, I sense from the debate today that when this is over, 
that provision is going to be repealed. But I have learned from over 10 
years of fighting these tobacco companies never to assume a thing. They 
always have one trick left in the bag. Unfortunately, that trick is the 
Sessions amendment.
  Let me tell you this. I don't, for a moment, question the sincerity 
of my colleague from Alabama. Nor do I suggest that he is a cat's-paw 
of the tobacco companies. But make no mistake, if he ends up winning 
his amendment, you will see a smile on the grizzled mug of Joe Camel, 
because the Sessions amendment will achieve what the tobacco companies 
have failed to achieve. The Sessions amendment is the effort of the 
tobacco companies when they can't stop the lawsuits to stop the 
lawyers.
  Oh, how they must despise these plaintiffs' lawyers--this army of 
lawyers who joined with attorneys general across the United States in 
40 different States and said, ``We will join with you in suing the 
tobacco giants. We understand each State is hard pressed to have the 
resources to bring the lawsuits. We will be involved in the lawsuits on 
a contingent basis. If you win, if your State wins, then we get a fee. 
If you don't, then our fee is reduced.''
  It is a contingent-fee basis. It is a basis for many lawsuits. There 
is nothing inherently evil or outrageous about it. Many people come to 
lawyer's offices every day without the resources to prosecute a 
lawsuit, and a lawyer says, ``I will take it on a contingency. If you 
win, I win a fee. If you lose, I don't win a fee.'' There is nothing 
sinister about this. It is a contingent fee.
  So that is what we are debating here today. The Senator from Alabama 
calls it jackpot justice. I have heard him in committee and on the 
floor. And he has very strong personal feelings about contingent-fee 
lawsuits. That is his point of view. I don't share it. But consider 
what his amendment would do.
  First, it would limit the total attorney's fees paid in the United 
States of America to all the plaintiffs' lawyers assisting all the 
attorneys general to $250 million maximum--a huge sum of money, is it 
not? But in the context of a tobacco settlement of $368 billion, how 
big is it? It is one-tenth of 1 percent. That is the contingency fee 
which the Senator from Alabama thinks is a reasonable amount. I would 
suggest to him that he shouldn't prejudge what each State attorney 
general faced when they were asked by their taxpayers and consumers in 
the State to bring a lawsuit against these giant tobacco companies and 
entered into agreements with the various attorneys to help them do 
that.
  In fact, I think quite honestly the Sessions amendment is designed to 
stop one lawsuit in particular--the Minnesota lawsuit. Attorney General 
Skip Humphrey of Minnesota said he is going to try it. Unlike the 
States of Mississippi and Florida, which have settled, the State of 
Minnesota has said we are going to take this to trial. The tobacco 
companies dread that prospect because, if, in fact, Minnesota goes to 
trial, then the documents which they have secreted, the documents which 
they have concealed for decades, will finally come to light.
  I went to a meeting a few weeks ago, Senator Daschle's task force on 
this subject. And a representative of the tobacco companies came in, 
and said that if the Minnesota case goes to trial there will not be a 
tobacco settlement. They dread so the prospect that the things which 
they have secreted away

[[Page S9040]]

from public scrutiny will come to light that they, in fact, have said, 
``Stop the Minnesota case.''
  I believe the Sessions amendment wittingly or unwittingly will stop 
the Minnesota case. Is that fair? Is that fair after the State of 
Minnesota and so many other States have invested so much in this effort 
for us to step in at this moment, and say, ``We will void your 
agreements, we will void your contracts, we are the Federal Government, 
after all, and we will second-guess you?''
  Some people even question whether Senator Sessions' amendment is 
constitutional. They wonder if we, in fact, under article I, section 
10, of the Constitution can impair the obligation of contracts already 
entered into. But I don't know that we will resolve that constitutional 
question on the floor.
  What we can accept as a reality is that if the Sessions amendment 
goes forward it will at least put a damper on any future lawsuits and 
perhaps stop them in place. They will be jumping for joy on tobacco 
road, if the Sessions amendment is successful. In aiming at the 
attorneys and their contingency fees, the Sessions amendment hits the 
public health community, which has had the courage to step forward with 
40 attorneys general and sue the tobacco companies. The Senator from 
Alabama may think that he is sending a message to the attorneys of 
America about contingency fees. He is sending a message to tobacco 
companies that they still have a chance on the floor of the U.S. 
Senate.
  I hope my colleagues will not support this amendment. In fact, I 
would like to let them know that if, in fact, my motion to table 
prevails and the Sessions amendment is not agreed to, that I will then 
offer a sense-of-the-Senate amendment of my own.
  I would like to read it.

       It is the sense of the Senate that attorney's fees paid in 
     connection with an action maintained by a State against one 
     or more tobacco companies to recover tobacco related costs 
     affected by Federal tobacco settlement legislation should be 
     publicly disclosed and should not displace spending in the 
     settlement legislation intended for public health.

  The bottom line of my substitute would require each State, each 
attorney general, to make a public disclosure of their fee arrangement 
with any attorneys that have been brought into this lawsuit, and no 
moneys paid to those attorneys will be at the expense of the public 
health initiatives that are part of this settlement. Then in each State 
the attorney general, in most cases elected, will have to be held 
accountable as he or she should be for their decision.
  I don't think that is unreasonable. And I think, as they come forward 
to explain to the taxpayers of their State that they entered into this 
contingency fee arrangement knowing that they might or might not 
recover, that the attorney's fee ultimately paid will be justified by 
the money coming back from the tobacco companies to the taxpayers of 
the State. Public disclosure--I don't think that is unreasonable.
  But I do believe the Sessions amendment is unreasonable. What it 
seeks to do is begin to draft the national tobacco settlement 
agreement. And I don't think that is fair, and I don't think this is 
the appropriate time to do it.
  The purpose of the Durbin-Collins amendment is to go back to where we 
started--to that point in time where the tobacco companies' offer of 
$368.5 billion, through the State attorneys general, came to Capitol 
Hill to be debated. It wipes off the books the $50 billion set-aside--
the $50 billion giveaway--and it says we are back to the starting 
point.
  If we adopt the Sessions amendment, I think we are going to 
jeopardize not only the active prosecution of these tobacco companies 
but jeopardize this settlement agreement.
  I yield the floor. I reserve the remainder of my time.
  Mr. GREGG addressed the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. GREGG. Will the Senator from Alabama yield 5 minutes?
  Mr. SESSIONS. I yield 5 minutes to the Senator.
  The PRESIDING OFFICER. The Senator from New Hampshire is recognized 
for 5 minutes.
  Mr. GREGG. Mr. President, first off, I am a cosponsor of the 
underlining Collins-Durbin or Durbin-Collins amendment. Second, I am a 
very suspicious of this tobacco agreement.
  I tend to think that there are some serious concerns here relative to 
what we are getting and what is being done. And especially I am 
concerned about the fact that I think the only winners out of this may 
be the trial lawyers and the tobacco companies. And I don't think that 
should be the result of the settlement.
  But I also strongly support what Senator Sessions, the former 
attorney general from Alabama, is proposing here because basically what 
we have here is an unholy alliance between the tobacco industry and the 
trial lawyers.
  It was pointed out very effectively by Senator Sessions that there is 
almost an ethical question here of whether then you pay off the people 
suing you to stop suing--pay them all off in terms of multiple billions 
of dollars. We are talking about here potentially $40 billion to $50 
billion in attorney's fees, and whether or not when such an occurrence 
happens, whether you have any sort of agreement which is fair, ethical, 
or appropriate. So Senator Sessions has raised an extraordinarily 
legitimate question.
  I think it is extremely inconsistent for those who are opposing the 
tobacco settlement generally, and who have put forward this amendment--
the underlying amendment, which is a good one, to try to knock out at 
least one section of this proposal which was moved in the middle of the 
night--for that same position to be arguing on behalf of the trial 
lawyers, I find that to be entirely inconsistent.
  Moreover, I find the arguments that have been made from the either 
side to be filled with straw dogs and red herrings. Let's talk about 
them for a second.
  First is the argument that the Minnesota case wouldn't go forward. Of 
course the Minnesota case will be forward because the trial attorney's 
fees, which will be affected by the Sessions amendment, apply to the 
agreement--not to trying cases when there is a case tried, when it goes 
to trial, or when it is outside the parameters of the agreement. Then 
clearly the contingent fee will lie if the case is successful. So that 
is a red herring in the first order.
  The idea that this is unconstitutional because there is some sort of 
contract that is being abrogated, obviously it is constitutional 
because the fact is the Congress is being asked to create this 
contract. That is what we are being asked to do. There is no contract 
yet. The Congress is being asked to create a contract. If we are going 
to be asked to create this contract, we can certainly dictate one of 
the terms. And one nice term might be that we not end paying the trial 
lawyers $40 billion but rather pay NIH that $40 billion. In fact, by my 
estimate you can fund almost all the uninsured health care in this 
country today. Almost all of the people who do not have health care 
could be funded if we were to take $40 billion of the trial lawyer's 
fees and apply it to the uninsured people in this country. And, as a 
result, for almost a 5-year period I think you would have funding for 
the uninsured health care of people who do not have health insurance in 
this country. In fact, in the major debate that we just had over child 
health care insurance the issue was whether we should go from $16 to 
$24 billion in order to cover uninsured children in this country 
today--$24 billion for a 5-year period.
  This $50 billion for trial lawyers--let's put it toward the kids. 
Let's put it toward health care. It is a heck of a good idea that the 
Senator from Alabama has come up with. NIH can use this money much 
better. Uninsured people in the health care community can use this 
money much better.
  At the absolute minimum we should have some disclosure here as to 
what is going on. You talk about deals in the middle of the night, 
which the Senator from Illinois has so aptly pointed to, and the 
Senator from Maine has so aptly pointed to in the passage of this tax 
break, which is totally inappropriate, a deal in the middle of the 
night. This is a deal in the middle of night on some other continent. I 
mean, we can't even find out what this deal is. At least we found out 
what the tobacco deal was on the tax side, and the Sessions amendment 
will get us to the bottom of that issue to find out what the heck 
really happened here, and how much

[[Page S9041]]

the attorney's fees are going to be. But we know they are going be 
massive. Otherwise they wouldn't be fighting so hard to keep us from 
finding out about them.
  So the Senator from Alabama has raised a totally appropriate 
amendment. It is a red herring to allege that this in any way assists 
the tobacco industry. It does just the opposite. The fact is that the 
trial lawyers have had a stranglehold on, regrettably, this 
administration. They have seen this administration veto two major 
product liability bills--the securities bill and the product liability 
bill, one of which we were smart enough to override, the other of which 
we couldn't override as a result of the trial lawyer influence. Now 
when we are trying to get to the bottom of just how much is going to be 
paid here, how much is coming out of the people's pockets, we run into 
this argument that it is inappropriate.
  The amendment of the Senator from Alabama is totally appropriate. And 
I strongly support it.
  The PRESIDING OFFICER. Who yields time?
  Ms. COLLINS addressed the Chair.
  The PRESIDING OFFICER. Who yields to the Senator from Maine?
  Mr. DURBIN. I yield 5 minutes to the cosponsor of my amendment, 
Senator Collins.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Thank you, Mr. President.
  Mr. President, I rise in very reluctant opposition to the amendment 
offered by my friend and colleague from Alabama, Senator Sessions. I do 
believe that the issue of attorney's fees is an important one. But it 
should be debated in the context of the global tobacco settlement. My 
fear is that despite the best intentions of the sponsors of this 
amendment that passage of the Sessions amendment would jeopardize the 
underlying Durbin-Collins amendment to repeal the $50 billion tax 
giveaway to big tobacco. For that reason, I am going to vote to table 
Senator Sessions' amendment.
  I do want to point out one issue that has become obscured in this 
debate, and that is that the money that will be paid in attorney's fees 
does not come out of the $368.5 billion global settlement. Instead, the 
attorney's fees will be paid by the tobacco industry, separate from the 
settlement. So the attorney's fees do not diminish the amount of the 
$368.5 billion settlement. I think that is an important point that has 
been lost in this debate.
  I share the concerns of my colleague from Alabama about an attorney's 
fees. I think there are, however, constitutional issues about whether 
Congress can step in and abrogate contracts that were reached between 
the States attorneys general and private law firms. That is an issue 
that deserves to be thoroughly explored. But, most of all, I urge my 
colleagues, whatever their position on the tobacco settlement, whatever 
their position on the issue of attorney's fees, to save this debate for 
a more appropriate time. And that is when the global tobacco settlement 
is before the Senate. My fear is that the passage of this amendment 
would jeopardize the underlying amendment to repeal the $50 billion tax 
break, and I do not believe we should allow that to happen. For this 
reason, I will support the motion to table, offered by the Senator from 
Illinois.

  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. DURBIN. Mr. President, could the Chair inform us of the time 
remaining?
  The PRESIDING OFFICER. The Senator from Illinois has 9\1/2\ minutes; 
the Senator from Alabama has 10\1/2\ minutes.
  Mr. DURBIN. Mr. President, I am prepared to yield some time to my 
friend, the Senator from New Jersey. I would like to yield 5 minutes to 
the Senator.
  Mr. LAUTENBERG. I thank the Chair. I thank the distinguished Senator 
from Illinois for the courtesy. I will not talk long now. It is my 
understanding this is the only vote that has been registered for 
consideration at this juncture, and I assume that there will be time 
between the vote on the Sessions amendment and the underlying Durbin 
amendment.
  Is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LAUTENBERG. Mr. President, I just want to register my support for 
the Durbin-Collins amendment to repeal big tobacco's rebate in the tax 
reconciliation bill that granted a $50 billion giveaway--$50 billion 
giveaway--to the tobacco industry. The condition that has created so 
much suspicion about the tobacco companies and their industry is that 
there is no time, no time at all when they come forward cleanly, let 
the smoke clear away, and offer direct and candid explanations about 
what it is they have been up to all these years.
  I will have some comments later about the speech given last night by 
the distinguished chairman of the Judiciary Committee, Senator Hatch. 
He asked for a quick conclusion--let's get going. He asked that the 
President send down a bill that we can discuss and vote on, get it done 
with.
  Well, Mr. President, this attack on the American people's health has 
been going on for decades, more than 50, 60 years. I remember when I 
was a soldier and part of the ration kit that I got to be used as an 
emergency food supply had some cigarettes stuck in it. It was so much a 
part of our structure, so much a part of our culture that cigarettes 
became more valuable than currency in some of the countries during the 
Second World War.
  So there is a lot of information that has been accumulated over a lot 
of years, and contrary to the comments of the distinguished Senator 
from Utah last night, I think we ought to take our time. I think we 
ought to make sure that we have the most complete review of millions of 
pages of information. I think that we can find what we want within a 
group of documents about 1.5 million pages long. They are called the 
Minnesota Select Set. There has been a consolidation of information to 
fewer pages than the full 33 million that the court in Minnesota is 
going to have for review.
  Last night, the distinguished Senator from Utah talked about 33 
million pages. He said, what do we need that for? Well, I think it is 
quite clear to people within earshot here and who have been watching 
what has been going on in the Capitol when the committee now reviewing 
campaign expenditures or campaign revenue raising, fundraising, has 
requested over 10 million documents for review from the AFL-CIO alone, 
by the Senator who is chairman of that committee, Senator Thompson.
  So, Mr. President, we are talking about a very complicated piece of 
agreement. We have by the most conservative yardstick probably 5 
million people killed as a result of smoking, who died prematurely as a 
result of smoking. We know that 430,000 die each year from respiratory-
related conditions--lung cancer, you name it, emphysema. We learned 
recently from a study by the Harvard public health school that 50,000 
heart attacks per year, fatal heart attacks per year, take place among 
those who are subjected to passive smoking, not smoking themselves. So 
again by the most conservative of calculations we say that some 500,000 
people have been dying as a result of smoking-related illness.
  If I might ask, Mr. President, my friend from Illinois for another 
minute.
  Mr. DURBIN. I yield an additional minute to the Senator from New 
Jersey.
  Mr. LAUTENBERG. So, Mr. President, I hope that we will not be rushed 
into doing something, get it behind us, get it over with. There is much 
too much to be gained by a thorough review of all of the documents, and 
we should not ask the President of the United States to come down here 
pell-mell, willy-nilly with a bill for us to consider and pass. If it 
takes time, I think that time can be valuably used despite the fact 
that I would like the assault on our children to stop as quickly as 
possible. I do not want any more seduction of our children to pick up 
smoking because the tobacco industry knows, in their spurious attempts 
at trying to ensure their marketplace, they have directed their 
marketing at children, trying to get 3,000 kids a day to pick up the 
smoking habit so a million a year of new smokers will be there to 
replace that market which is affected by those who are dying 
prematurely.
  So, Mr. President, I look forward to an extended debate. I hope that 
the

[[Page S9042]]

Durbin-Collins amendment will be supported overwhelmingly to show the 
American people that we are not going to knuckle under to the 
machinations of the tobacco industry. We are not going to let it get 
through the front door or the back door. We want to close down what the 
tobacco industry has been doing to our citizens for these many years, 
and it is perhaps going to take more time than would be thought to be 
necessary to arrive at a proper settlement.
  With that, I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. SESSIONS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. DURBIN. Will the Senator from Alabama yield for two very brief 
questions about his amendment?
  Mr. SESSIONS. Certainly.
  Mr. DURBIN. I want to clarify something that has been said during the 
course of debate. First, is it the intention of the amendment of the 
Senator that the limitation on attorney's fees would apply in those 
cases where States decide to go forward and prosecute a case as opposed 
to those that are involved in the national settlement agreement?
  Mr. SESSIONS. I believe that the correct interpretation of this 
amendment and the intention of it would be, if a case went on to 
litigation and was not a part of the global settlement, it would not be 
covered by this agreement. But any settlements that were entered into 
now or subsequently that asked to be part of the global settlement by 
Congress would be appropriately covered.

  Mr. DURBIN. So the Senator is saying--I am trying to reconcile his 
section (b). He applies this limitation to court orders as well as any 
settlement agreement. It would seem his limitation on attorney's fees 
would apply in either instance, whether the State decides to prosecute 
the claim and ignore the possibility of a national settlement or in 
fact reaches a settlement agreement. It would appear that his 
limitation on the attorney's fees would apply in either case.
  Mr. SESSIONS. I don't think it would apply if the case went on to 
litigation because it would not be part of the global settlement. Our 
bill does not take effect unless there is an act of this Congress that 
globally settles the litigation.
  Mr. DURBIN. I might say to the Senator I think his amendment needs to 
be clarified because that was not clear to me.
  The second point I would like to raise, in section (e) where you 
provide for funds for children's health research, if in fact attorney's 
fees are not to be paid out of the $368.5 billion and in fact are to be 
paid separately, from what source is the Senator drawing these funds 
that would go to the National Institutes of Health?
  Mr. SESSIONS. Mr. President, I don't mind responding to the Senator's 
question. I sought the floor. But I choose to have it on his time.
  The PRESIDING OFFICER. The Senator may decline to yield further time.
  Mr. SESSIONS. I have some comments that I would like to make and my 
time is getting short, but I think it would support the National 
Institutes of Health and that is what we would favor.
  This is a matter of real seriousness. We are not talking about a 
little game or gimmick here. We are talking about huge sums of money. 
The Senator from New Hampshire talked in the debate on this floor of 
from $16 to $20 billion of children's insurance and how $4 billion was 
considered carefully before the Congress appropriated that money. We 
are talking about perhaps $40 billion in attorney's fees, and they 
refuse to tell the American public how much the fees are. They refuse 
to produce their agreements. These are attorneys representing public 
bodies, not private individuals.
  With regard to contingent fees, I am not against private contingent 
fees. I think in many cases that is an effective and appropriate way to 
handle litigation for a private party. But I am very concerned about 
public bodies hiring attorneys to represent them and the people of 
their States on a contingent fee basis that could result in awards of 
attorney's fees of tens of billions of dollars. So I would think very 
seriously about that.
  I was amazed to hear the comment made that this would intimidate and 
hamper the public health community. The public health community will 
benefit from this because we would see this money go to the National 
Institutes of Health and not to attorneys, so they could use it for 
research and other good things. It will not stop the ongoing 
litigation. I certainly believe it will continue in every State in the 
Nation that chooses to proceed.
  Finally, I think the Senator from Maine is incorrect in suggesting 
that this is somehow not money that counts because it was money not 
made part of the settlement but added on to it by the tobacco industry. 
If you have been a part of the litigation, before you know it, the 
defendant, before the award is paid, wants to know the total bill, and 
when he finally agrees what his total bill is, he does not care how it 
is spent or how the other side uses it. So he will call it attorney's 
fees, he will call it anything else. He just wants to spend the $386 
plus billion, and that money is money the tobacco company is prepared 
to spend to end this litigation. Therefore, it is money that ought to 
be spent, as much as possible, on children and not on lawyers.
  Mr. President, I see the Senator from Kentucky is here and I will 
yield for a question, or time. I will yield the floor at this time and 
yield my time to the Senator from Kentucky for 4 minutes.
  Mr. McCONNELL. Yes.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. I thank my friend from Alabama. Again I want to 
commend him on an outstanding amendment. I have been able to pick up 
part of the debate, and I might ask my friend from Alabama if one of 
the arguments being made by those who oppose his amendment is that 
somehow these lawsuits are not likely to be brought if a lawyer could 
only bill $250 an hour? Is that, I gather from my friend from Alabama, 
one of the suggestions being made by the opponents of his amendment, 
that somehow being restricted to a mere $250 an hour is going to deter 
the lawyers of America?
  Mr. SESSIONS. That is correct--$5 million is not a sufficient fee for 
a lawsuit.
  Mr. McCONNELL. Right. That is the other part, I gather, of the 
Senator's amendment, either $250 an hour or $5 million, whichever is--
--
  Mr. SESSIONS. Less.
  Mr. McCONNELL. Less. I would ask my friend from Alabama, who has had 
a distinguished career over the years, has he ever known a lawyer to be 
deterred from representing a client when there was a potential $5 
million or $250 an hour fee on the line?
  Mr. SESSIONS. I have not, and I consider $5 million to be a very 
substantial fee on any market in America, certainly.
  Mr. McCONNELL. I do not know how the economy is in Alabama, but I 
would say to my friend I am not aware of many people in Kentucky that 
make $5 million over a year, or even 2 or even 3--just a small handful 
of people. Would my friend from Alabama agree with me that this is not 
likely to be a deterrent to representation of a client if the fee is so 
restricted?
  Mr. SESSIONS. I do not think it is a deterrent, and also I point out 
that these are attorneys representing the people, the States involved, 
and it is not unusual at all for lawyers to work for less an hour rate 
for a governmental body than they do for a private individual.
  Mr. McCONNELL. So, further, I ask my friend from Alabama, if I 
understand this correctly, whatever fees were proposed to be paid above 
the $5 million cap would then be diverted to the National Institutes of 
Health for children's health research; is that correct?
  Mr. SESSIONS. That is correct. We think there are going to be some 
real jackpot fees awarded here, under the way this case ended so 
abruptly. That really exacerbates the unfairness of it. The litigation 
was filed. Many people thought it would last for years. Then, all of a 
sudden, there is a settlement entered into with huge sums of money 
being paid by the tobacco industry, allowing attorneys, under their 
agreements, to receive huge sums of money for very little work.
  Mr. McCONNELL. So, I say to my friend from Alabama, it seems to me in 
my 13 years in the Senate, this is one

[[Page S9043]]

of the clearest choices I have ever observed laid before the Senate on 
an amendment.
  I ask the Senator from Alabama, if the Senator from Kentucky 
understands this correctly, if this is a choice between plaintiffs' 
lawyers on the one hand and children's health research on the other? 
Does the Senator from Kentucky understand this correctly?
  Mr. SESSIONS. The Senator from Kentucky understands completely.
  Mr. McCONNELL. So a Member of the Senate who would vote for the 
Sessions amendment would be voting, in effect, for children's health 
care?
  Mr. SESSIONS. A vote for the Sessions amendment is a vote to put that 
extra money in the children's health care.
  Mr. McCONNELL. And a Senator who voted against the Sessions amendment 
would in effect be saying paying legal fees in excess of $250 an hour, 
or more than $5 million a State, is a more important priority than 
children's health care research; is that correct?
  Mr. SESSIONS. That is precisely correct, as I see it.
  Mr. McCONNELL. So it seems to me that this is about as clear as it 
gets. It is about as clear as it gets. The Senator from Alabama is 
giving the Senate an opportunity to enhance the ability of NIH to 
discover the cure for the diseases that afflict the children of 
America, and he is asking the Senate to pay for that through what most 
people would consider excessive legal fees for representing various 
State governments around America. Does the Senator from Kentucky have 
this correct?
  Mr. SESSIONS. The Senator from Kentucky has it correct. The fees we 
are talking about in this case would be the largest fees in the history 
of the world.
  Mr. McCONNELL. Mr. President, I want to commend the Senator from 
Alabama. I think this is a very, very important amendment. It certainly 
relates not only to the debate currently before us, but to the debate 
yet to be had in the coming months, or maybe even next year, about a 
global tobacco settlement, if that should be forthcoming.
  I yield the floor.
  The PRESIDING OFFICER. The time of the Senator from Alabama has 
expired. The Senator from Illinois.
  Mr. DURBIN. Mr. President, how much time is remaining under our 
agreement?
  The PRESIDING OFFICER. Two minutes twelve seconds.
  Mr. DURBIN. Two minutes twelve seconds I have remaining. And the 
Senator from Alabama?
  The PRESIDING OFFICER. His time has expired.
  Mr. DURBIN. Mr. President, let my say in conclusion, I was really 
captivated by this closing argument. Now the tobacco companies, after 
all these years of exploiting children, come in with this ``God bless 
Tiny Tim'' amendment which says if we can just stop these mendacious 
lawyers, we are going to find money for children's health research. I 
think the American people have seen through this before and will see 
through this amendment. There is no money in here for children's health 
research. The $368.5 billion settlement does not include attorneys' 
fees. So, any money saved, according to the Senator from Alabama, is 
not going to be there for us to appropriate to the National Institutes 
of Health.
  No, I think this is window dressing on an amendment which is very 
clear. It is late in the ball game. The score is very heavy on the side 
of public health and very heavy against the tobacco companies. So, on 
the last play, as the quarterback or the State attorney general tries 
to down the ball, in come the tobacco boys trying to sack him. They are 
angry. They hate to lose and they hate to lose big, so they come in 
with this amendment, this amendment to get even with these plaintiff 
lawyers for having brought these lawsuits to try to limit any State 
attorney general's authority to regulate a fee.
  I agree with others who have spoken. I am not sure this is 
constitutional, but it is certainly not fair. It is not fair at this 
moment in time to presume, on every attorney general who brought this 
lawsuit, that they were, in fact, making a bad bargain for the 
taxpayers of their State. I think they should be held accountable. My 
substitute amendment, when this is defeated, will say there will be a 
public disclosure and none of the attorney's fees will come out of the 
money for the public health aspects of this settlement. But make no 
mistake, the Sessions amendment is an amendment which the tobacco 
companies want. It will put a damper on lawsuits. It will give the 
tobacco companies the upper hand in the settlement negotiations. And it 
will completely discount the sincere and good-faith efforts of 40 
different States that had the courage to step forward and sue the 
tobacco companies.
  The Senator from Alabama says their decision to go forward was a 
wrong one; their decision to pay the attorneys was a wrong one. I do 
not think he should presume to make that decision. It is a decision 
made by each of them, and we should respect it.
  At this point, I move to table the amendment offered by the Senator 
from Alabama.
  Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER (Mr. Hutchinson). The question is on agreeing 
to the motion to table the amendment.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Utah [Mr. Bennett] is 
necessarily absent.
  Mr. FORD. I announce that the Senator from Hawaii [Mr. Akaka] and the 
Senator from New Mexico [Mr. Bingaman] are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Hawaii [Mr. Akaka] would vote ``yea.''
  The result was announced, yeas 48, nays 49, as follows:

                      [Rollcall Vote No. 224 Leg.]

                                YEAS--48

     Baucus
     Biden
     Boxer
     Breaux
     Bryan
     Bumpers
     Byrd
     Cleland
     Cochran
     Collins
     Conrad
     D'Amato
     Daschle
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Glenn
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Shelby
     Snowe
     Torricelli
     Wellstone
     Wyden

                                NAYS--49

     Abraham
     Allard
     Ashcroft
     Bond
     Brownback
     Burns
     Campbell
     Chafee
     Coats
     Coverdell
     Craig
     DeWine
     Domenici
     Enzi
     Faircloth
     Ford
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Smith (NH)
     Smith (OR)
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                             NOT VOTING--3

     Akaka
     Bennett
     Bingaman
  The motion to lay on the table the amendment (No. 1125), as further 
modified, was rejected.
  Mr. STEVENS. I move to reconsider the vote.
  Mr. NICKLES. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. DURBIN. I ask for the yeas and nays on the motion to reconsider.
  The PRESIDING OFFICER. The motion to reconsider was just laid on the 
table by consent.
  Mr. LOTT. Mr. President, are we ready to vote on the question?
  Mr. DASCHLE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Roberts). Without objection, it is so 
ordered.


                      Unanimous-Consent Agreement

  Mr. LOTT. Mr. President, I ask unanimous consent that the Sessions 
amendment be agreed to, and the Senator from Minnesota, Senator 
Wellstone, be recognized to offer a second-degree amendment, and there 
be 30 minutes for debate to be equally divided.

[[Page S9044]]

  I further ask that at the conclusion of the debate, the amendment be 
laid aside and Senator Durbin be recognized to offer an amendment, 
which would be in the form of a sense-of-the-Senate resolution, with 
debate limited to 5 minutes, and following that debate the Senate 
proceed to vote on or in relationship to the Wellstone amendment to be 
followed by a vote on or in relation to the Durbin amendment, to be 
followed immediately by a vote on or in relation to the Durbin 
amendment No. 1078, as amended.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Amendment No. 1125, as modified further, was agreed to
  Mr. LOTT. Mr. President, therefore, there will be three back-to-back 
votes beginning in approximately 35 minutes.
  I thank Senator Daschle for his cooperation in working out this 
arrangement. It will allow us to complete this section of consideration 
on the Labor-HHS bill, and hopefully we can go on then with other 
amendments that can be agreed to, or accepted, or voted on, and 
hopefully we can complete this very important appropriations bill 
before the day is out.
  I yield the floor.
  Mr. DASCHLE addressed the Chair.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. DASCHLE. Mr. President, let me also thank the majority leader for 
his cooperation in coming to an agreement, and I thank Senator Durbin 
who waited patiently to present this issue and debated it eloquently 
and forcefully over the last several days. We wanted a way to bring to 
closure the issue with regard to the deductibility question. And we 
will now have that opportunity for a final vote within the hour.
  So I think we have made great progress in the last 30 minutes. I am 
pleased now that we are at a point where we can have a final vote.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous agreement, the amendment of 
Senator Sessions, No. 1125, was agreed to.
  The Senator from Minnesota is recognized to offer a second-degree 
amendment.
  Mr. WELLSTONE. Mr. President, I thank the Chair.


                Amendment No. 1126 to Amendment No. 1078

  Mr. WELLSTONE. Mr. President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Minnesota [Mr. Wellstone] proposes an 
     amendment numbered 1126 to amendment No. 1078.
       At the end of the amendment, add the following: ``Nothing 
     in this Act may be construed to interfere with, or abrogate, 
     any agreement previously entered into between any State and 
     any private attorney or attorneys with respect to litigation 
     involving tobacco.''

  The PRESIDING OFFICER. On this amendment, there will be 30 minutes of 
time equally divided.
  The Senator from Minnesota is recognized.
  Mr. WELLSTONE. I thank the Chair.
  Mr. President, and colleagues, I shall be brief.
  I, too, thank the majority leader, the minority leader, Senator 
Sessions, and Senator Durbin for their cooperation.
  Mr. President, this amendment is very simple and straightforward, and 
in a way the context for this is Minnesota. But it really affects all 
of our States.
  This amendment just says that nothing in the act may be construed to 
interfere with, or abrogate, any agreement previously entered into 
between any State and private attorney with respect to litigation 
involving tobacco.
  For example, in Minnesota the case is in a State court.
  What are we doing? I am not a lawyer. But what are we doing here in 
the U.S. Senate telling Minnesota that its contract with lawyers that 
are working with the State of Minnesota could be declared null and 
void? What are we doing saying that to the State of Minnesota, or what 
are we doing saying that to any State? I thought we had a States rights 
Congress. This goes just in precisely the opposite direction.
  Mr. President, again a little bit of information about Minnesota, so 
we know what is at stake here. I mean I am out here fighting for my 
State of Minnesota. But I think this is important to all of our States.
  I cannot believe that my colleagues want to be in a position of 
arguing against the proposition that we should pass an amendment that 
tells the State it has to abrogate its contract with attorneys that are 
representing that State in State court. That is absolutely 
unbelievable.
  Mr. President, in Minnesota, against some background, is the first 
State in the Nation to charge the tobacco industry with consumer fraud 
and antitrust violations. It is the second State calling for Medicaid 
reimbursement. It is the only State with a private coplaintiff, Blue 
Cross and Blue Shield of Minnesota.
  The case was launched in August 1994. We have won the majority of 
pretrial motions, and all appeals, including the one that went to the 
U.S. Supreme Court. Minnesota secured 30 million pages of documents 
through discovery. Minnesota has the largest collection ever of tobacco 
documents in the world, housed in two secured depositories in 
Minneapolis and London.
  The Minnesota case is rated by the top tobacco stock analysts of 
Burnstein Research as the ``biggest threat to the industry.''
  I want to talk about what that means--``biggest threat to the 
industry.''
  We go to trial in January. This trial stands to be important not just 
for Minnesota but for the whole Nation--not just in terms of financial 
compensation for my State, for the people in my State, but the 
discovery, the information that will come to light about past abuses, 
about what the tobacco industry has known, about marketing techniques, 
and all of the rest.
  This amendment, which is an amendment albeit for my State of 
Minnesota but really applies to every single State, just says to 
colleagues that in whatever action we take let us be clear that nothing 
that we are doing here can be construed to interfere with or abrogate 
any agreement previously entered into between any State and private 
attorney or attorneys with respect to litigation involving tobacco.
  We have a case in Minnesota. It is in State court. What are we doing 
in the Congress telling Minnesota that it will have to abrogate its 
contract with attorneys? The arrangement is made with attorneys so 
those attorneys can represent the public health community, so those 
attorneys can represent the State of Minnesota and people in Minnesota, 
so those attorneys can represent all of us who would like to see these 
documents and this information come to light. I do not think this is 
constitutional and I certainly think it is inappropriate.
  Mr. GREGG. Will the Senator yield?
  Mr. WELLSTONE. I yield to my colleague from Illinois.
  Mr. DURBIN. If the Senator will yield, I support the Wellstone 
amendment. Make no mistake, what Senator Wellstone is proposing before 
this Senate is the other side of the argument of the Senator from 
Alabama. The Senator from Alabama came before us and basically said, 
even though we are not talking about any Federal dollars here, even 
though we are not talking about any action in any Federal court, we as 
a Federal legislature will dictate to the State of Minnesota, the State 
of Illinois, I suppose even the State of Alabama that they cannot enter 
into an agreement with any attorneys to proceed with tobacco litigation 
unless it meets the Federal guidelines proposed by the Senator from 
Alabama.
  Well, I am sorry, but I do not believe that that is our 
responsibility. I think it goes beyond our constitutional 
responsibility. I think what the Senator from Minnesota has offered is 
reasonable. How can we ever presume to judge what are the appropriate 
attorneys' fees and arrangements in a State like Minnesota where 
Attorney General Humphrey has probably gone to greater lengths than any 
attorney general in the United States bringing these documents 
together, filing a creative lawsuit, being assertive, making certain 
that the people of Minnesota are represented. For any Senator from 
Illinois, Alabama or anywhere to stand up and say, I am sorry, 
Minnesota, this is not yours to decide, this is to be decided by the 
Federal Congress, even though there is no Federal money, no Federal 
court. We are dealing in State courts, we are dealing with tobacco 
companies making payments. I think it is entirely presumptuous for us 
to go along with the premise that we in the

[[Page S9045]]

Senate will decide attorneys' fees case by case and State by State.
  I stand in support of the Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 6 minutes 45 seconds.
  Mr. WELLSTONE. I thank my colleague. I reserve the remainder of my 
time.
  Mr. SESSIONS. Mr. President, will the Senator from Minnesota yield 
for a question?
  Mr. WELLSTONE. I would be pleased to yield on the Senator's time.
  Mr. SESSIONS. All right. Just briefly, what is the percentage 
contingent fee that has been given to the plaintiff attorneys who are 
representing the State of Minnesota?
  Mr. WELLSTONE. My understanding is 25 percent.
  Mr. SESSIONS. I thank the Senator.
  Mr. President, I think that points out the problem we are dealing 
with here. This is the first time, in any inquiry that I have made in a 
number of different instances, that I have gotten a figure on the 
detail of the fee agreements that have been entered into in these kinds 
of cases.
  Twenty-five percent. That sounds fine, but the truth of the matter is 
the tobacco company has just pleaded guilty. They put $300 billion, 
$400 billion, the Senator from Kentucky says $500-plus billion on the 
table. Now the lawyers who were saying they were going to trial and 
spent these huge sums of money all over America are not going to trial. 
They are just collecting the money, and they have agreements like this.
  Now, I would assume, with regard to Minnesota, that they are an 
average size State and they probably would be entitled to something 
like a $10 billion settlement of this matter. If that is true, then 
this law firm would be entitled to $2 billion--$2 billion, not $2 
million but $2 billion. That would be probably as of this date the 
largest legal fee ever paid in the history of this country, largest 
legal fee probably ever paid in the history of the world.
  So I submit that is exactly what has happened. Many States, I 
understand, because less than a year ago I was an attorney general, 
have entered into contracts of 25 percent. I know of another State 
which, I understand, has entered into a settlement for 20 percent of 
the recovery. These cases are not even going to trial if this body 
acts. If this body does not act and Minnesota goes on and litigates its 
own case, then Minnesota is not covered by our agreement. So only if 
there is a congressional action that takes over these cases, should we 
question attorneys' fees. Otherwise that issue is between the attorneys 
general and the States.
  But the plaintiff lawyers, the very same ones who are now complaining 
about their fees through Members of this body, these very same 
plaintiff attorneys are the ones asking this Congress to review this 
settlement and to take appropriate action that we think is just and 
fair.
  So, first of all, I want to point out that we are talking about 
incredibly huge attorneys' fees, not just large. These are incredibly 
huge. Probably as much as, at 20 percent, $40, $50, $60 billion in 
attorneys' fees. Publicly the figure has been floated in the press a 
number of times at $14 billion. If the percentages are the same in most 
States, 20 percent, the figures will be much higher than $14 billion.
  So the tobacco lawyers who have entered into this private agreement 
with these plaintiff attorneys to pay them their fee, all these lawyers 
are now coming to us and saying just ratify this matter but don't ask 
us about how much they are paying; don't question these fees because we 
had a contract. We had a contract.
  They can't prevail in their cases in an effective way without the 
legislation of this Congress. So I think it is right for us to question 
it.
  Mr. FORD. Mr. President, will the Senator yield for a question?
  Mr. WELLSTONE. Will the Senator yield for a question?
  Mr. SESSIONS. I yield to the Senator from Kentucky.
  Mr. FORD. Mr. President, we are hearing now States rights, and I have 
tried to be on that side for some 23 years now. But the attorneys 
general are here asking us to approve their pact, to pass a Federal law 
and to have so-called protocols or side agreements that we would wind 
into the package. So it appears to me that it is no longer a States 
rights agreement. In Minnesota it may be somewhat different. But now 
they have come to the Congress and said here is our deal; you approve 
it and don't ask any questions.
  Well, back home we call that a mailbox job. You get a job and go out 
to the mailbox the first of each month and get your check. Am I correct 
it has reached a higher level than it would be under normal 
circumstances since we are asked to make the judgment? We are 
attempting to make the judgment now, and in making that judgment we say 
we are trampling on States rights. You can't have it both ways. Am I 
correct?
  Mr. SESSIONS. The Senator from Kentucky is precisely correct. These 
parties, both sides--do not forget, the tobacco industry is in here, 
too, asking us to approve it, and the tobacco industry also does not 
want to talk about how much they are paying these plaintiffs' lawyers. 
So they have asked us to review it. In effect, they have suggested in 
testimony before my Committee on the Judiciary that we approve it and 
analyze it fairly and justly, and that is our responsibility.

  Mr. FORD. Mr. President, will the Senator yield for one additional 
question?
  Mr. SESSIONS. Certainly.
  Mr. FORD. The Senator has been an attorney general. He is from the 
legal profession and I am not. Is it kind of unusual for a side 
agreement to be made by a defendant with a plaintiff lawyer?
  Mr. SESSIONS. I say the distinguished Senator from Kentucky raises a 
very important and troubling point. It is, in my opinion, at least 
improper if not unethical for an attorney representing a party to enter 
into private negotiations with the person he is suing to establish how 
much his fee ought to be. You see, there is a conflict there.
  Mr. FORD. I thank my colleague.
  Mr. SESSIONS. All of a sudden it becomes important to that lawyer 
that the settlement be approved so he can get his fee. And if the 
person he sues, the tobacco industry, says: ``You are being too hard on 
this issue; give up on this issue.'' ``No, I won't.'' ``Well, we will 
sweeten your attorney's fee if you will give up on it.'' That puts them 
in conflict. I am not saying that has happened. But I am saying good 
attorneys should not allow themselves to be put in a position of 
interest.
  So we are talking about, if it is 20 percent of a $600 billion 
settlement, $100 billion in attorney's fees. We fought for weeks on 
this floor to raise from $16 to $20 billion the amount of money spent 
for health care for children. We are talking about $100 billion in this 
bill in attorney's fees, and in many cases in many States very little 
legal work has been done on these cases. It is important and necessary 
for us to act on this matter, and this amendment as presented by the 
Senator from Minnesota would, in effect, undermine and abrogate the 
true effect of the amendment that I have offered, so I strongly oppose 
it.
  I will yield the floor and reserve my time.
  The PRESIDING OFFICER. Who yields time?
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. WELLSTONE. Mr. President, first of all, it is certainly not true 
that very little legal work has been done in Minnesota. The tobacco 
industry has already spent $125 million defending the Minnesota case 
alone--$125 million.
  Mr. President, it takes a whole lot of resources to uncover a 
massive, decades-old coverup of fraud and conspiracy. The Sessions 
amendment that my amendment speaks to is an attempt to shut down the 
discovery process, to perpetuate a coverup and to keep secret documents 
concealed for a long time. The effect of this amendment, unless the 
second-degree amendment passes, is to punish States like Minnesota and 
Texas and Massachusetts and Connecticut and Washington and others that 
have invested heavily in exposing the coverup and bringing the industry 
to justice.
  I do not know all the specifics of the arrangement between the State 
of Minnesota or Connectict or Massachusetts

[[Page S9046]]

or any other State and attorneys that are working for the States and 
for, I might add, the public health community. Without this work, we 
would not have been able to bring these documents forward. There will 
not be the discovery. There will not be the information. There will not 
be the information to people in this country about a whole pattern of 
abuse.
  But what I do know, one more time, colleagues, is this is in State 
court. This is an agreement between my State of Minnesota and 
attorneys. What in the world are we doing interfering and essentially 
saying to the State of Minnesota you have to abrogate your contract 
with your attorneys? Whatever you have decided upon, whatever you do in 
State court, State court is null and void. My State is not a party to 
this global agreement here in Washington. Attorney General Humphrey has 
made it very clear that we are going forward. This is an agreement in a 
State. This is an agreement between a State and attorneys. This is an 
effort to deal with a very long, unfortunately protracted, period of 
time of coverup by an industry. This is an effort that takes on a 
tobacco industry that spent $125 million on this case alone with 
lawyers defending it. And you are going to vote against an amendment 
that says ``nothing in this act may be construed to interfere with or 
abrogate any agreement previously entered into between any State and 
private attorney or attorneys with respect to litigation involving 
tobacco''?
  I do not know how colleagues can vote against that proposition. Have 
whatever views you want, but we do not have any business telling the 
State of Minnesota that in its best judgment and its best effort, and, 
indeed, what is being called ``the biggest threat to the industry,'' it 
has no right to enter into an arrangement with lawyers and to represent 
the people in Minnesota and represent the people in the country. And we 
in the U.S. Senate are going to try to vote against the proposition 
where we go on record saying we are certainly not going to tell a State 
it has to tear up its contract?
  Minnesota gets to decide that. Massachusetts gets to decide that. 
Connecticut gets to decide that. Illinois gets to decide that. Kansas 
gets to decide that. The U.S. Senate doesn't decide that.
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator yields the remainder of his time. 
The Senator from Alabama has 6 minutes and 50 seconds remaining.
  Mr. SESSIONS. Mr. President, first of all, if Minnesota proceeds to 
litigate its case and gets a judgment, then Minnesota would not be 
covered by this act. And I would be willing to consider Minnesota's 
case, because it is somewhat different than most. Perhaps it is more 
unusual than any of the others. However, I would say this to the 
Senator from Minnesota, his bill covers all States. It doesn't just 
cover Minnesota. It doesn't just cover unusual fact situations. It says 
we cannot deal with contracts in any of the States.
  I have to oppose his amendment because it applies to every State 
including States bigger than Minnesota that filed lawsuits just a few 
months ago. Attorneys have done almost no work on these cases. Yet they 
would stand to receive billions of dollars in attorney's fees without 
this legislation.
  So I would say, first of all, I would be willing to discuss the 
unique problems of Minnesota. But I cannot, and must resist with every 
bit of strength that I have this amendment because it applies 
throughout the Nation and it will prevent this body from being able to 
stop great windfalls. And that money doesn't need to go to attorneys. 
It needs to go for the purpose of this lawsuit, which is health care.
  Mr. GREGG. Will the Senator yield for a question?
  Mr. SESSIONS. I will yield.
  Mr. GREGG. As I understand your underlying amendment, which has now 
been adopted, in the case where there is a settlement and the 
settlement has to come to the Congress to be confirmed, your amendment 
applies. But, in the case of Minnesota, where there is litigation going 
forward, and where there is a trial going forward and the matter will 
be decided by the courts through the litigation process rather than 
through a settlement confirmed by the Congress, your amendment would 
not apply.
  Mr. SESSIONS. The Senator is correct.
  Mr. GREGG. So basically the amendment of the Senator from Minnesota 
doesn't apply to the Minnesota situation because the Minnesota 
situation is outside the underlying amendment. The amendment of the 
Senator from Minnesota applies to all the other States, except 
Minnesota, that are trying to reach an agreement through negotiation 
which has to be confirmed by this Congress.
  Mr. SESSIONS. That is correct. To my understanding, Minnesota is the 
only State that has objected to the global settlement. They are going 
to have to be treated separately in any case.
  Mr. GREGG. If I might ask a further question, it appears the Senator 
from Minnesota has launched an arrow that has missed its mark?
  Mr. SESSIONS. I think that is fair to say.
  Mr. WELLSTONE. Mr. President, I ask unanimous consent to reclaim what 
time I have left.
  The PRESIDING OFFICER. Is there objection? Without objection it is so 
ordered.
  The Senator has 2 minutes and 20 seconds.
  Mr. SESSIONS. Mr. President, I yield the floor and reserve my time.
  Mr. WELLSTONE. Mr. President, I might ask my colleague from Illinois 
to comment. I would like to look at the amendment again, the Sessions 
amendment, but my understanding from reading that amendment is that if 
there is a global settlement, it applies to all the States. Otherwise, 
I would have much less difficulty with his amendment.
  Mr. DURBIN. I thank the Senator for yielding. I might say at this 
point neither the Senator from Alabama, the Senator from Illinois or 
the Senator from Minnesota knows how this story is going to end. We 
don't know what this global settlement will say and how it affects the 
agreements heretofore entered into by other States, whether it's 
Minnesota, Mississippi, or Florida. I think it is presumptuous of us 
today to suggest we are going to set the guidelines.
  The Senator from Alabama stood up repeatedly and said, ``I don't know 
what these legal agreements are. They could be awful.'' If the Senator 
doesn't know what they are, then how can he suggest they are awful? I 
don't know that some of those agreements might say if a case is settled 
either by global settlement or otherwise, the attorney's fees will be 
dramatically reduced. The Senator doesn't know, but he went forward 
with his amendment.
  The Senator from Minnesota has hit the nail on the head. These 
attorneys general who had the courage to come forward in the lawsuits 
but didn't have the resources to prosecute them, entered into 
agreements to bring in other attorneys to help. They fought a big 
battle in Minnesota; $125 million spent by the tobacco companies, yet 
they fought on valiantly and they are going to bring this case on to 
trial in January. And for us to close the door today and say it's over, 
no more agreements in terms of attorney's fees--I think it's 
presumptuous. It's exactly what the tobacco companies are praying for.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota has 40 seconds 
remaining.
  Mr. WELLSTONE. Mr. President, I think that is precisely the problem. 
That is what I am speaking to. I don't think the Senator from Alabama 
can argue otherwise, in terms of what his amendment does.
  One more time I will say to colleagues, given this ambiguity, we can 
argue about it over and over again. This amendment is not ambiguous. It 
just simply says that nothing that we do may be construed to interfere 
with or abrogate any agreement previously entered into.
  What are we doing, telling the State of Minnesota, which is a State 
court, whatever you had to do to get lawyers to represent your State 
and the people of Minnesota and the people in the country, we are now 
going to pass something that will tear that agreement up--we have no 
business doing that. I don't think it's constitutional and I certainly 
don't think it's right. So I'm out here fighting for Minnesota, but for 
other States as well.

[[Page S9047]]

  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. SESSIONS. How much time have we have?
  The PRESIDING OFFICER. The Senator from Alabama is recognized. The 
Senator from Alabama has 2 minutes and 32 seconds remaining.
  Mr. SESSIONS. Mr. President, precisely on the question he raised, 
this amendment that I have presented, that has been passed by a large 
vote, without objection that I heard, maybe a few--says that it would 
only include States involved in the national tobacco settlement 
agreement.
  My view is, if Minnesota wants to opt out of this deal, maybe they 
ought to be treated separately. But for the 49 other States who are in 
it, who have asked for this review and legislation by Congress, I think 
it is absolutely critical that we deal with attorney's fees. I repeat, 
I have sought on multiple occasions, and other Senators have, to find 
out what the agreements are that they have with these attorneys. They 
are hiding those agreements. They have been very secret about it. It's 
a secret agreement between plaintiffs' attorneys representing the 
States and the tobacco industry. And only today has the Senator from 
Minnesota indicated that they have a 20-percent contingency fee. That 
means that whatever recovery Minnesota has of all these billions that 
we are looking for and hope that we can recover, of all those billions, 
20 percent of it will go to attorneys.
  They talk about a lot of records and documents. I have been involved 
in litigation. People always talk about records. But you have 
paralegals, you have clerks, you have statisticians to go through those 
documents. They don't have to be read by every attorney involved in the 
case.
  So I would say what really exacerbates this problem and makes it so 
critical is the fact that the tobacco companies, early on, agreed to 
this settlement. Therefore, a lot of attorneys general entered into 
contracts, maybe thinking it would be prolonged litigation and these 
fees might be justified, but now they find out that the money is 
already on the table and we have to work out an agreement to collect 
it. Attorneys do not have to justify these huge billion-dollar fees we 
are hearing talked about.
  These are reasonable fees, $250 an hour, $5 million per State in 
attorney's fees. That is reasonable and fair. I think generous, in 
fact.
  I believe that this body needs to send a message, for those people 
who think they can execute secret side agreements at the expense of the 
people they are supposed to be representing to divert $14 billion, $40 
billion, $60 billion, $100 billion from health care for children and 
families and tobacco victims--taking that money and putting it in their 
pockets is not a good way for this Government to be run.
  I feel very strongly about this. Unfortunately, the Senator from 
Minnesota chose not to limit his amendment to the situation in 
Minnesota but to apply it throughout the Nation, which in effect 
preserves the prerogative of the plaintiff lawyers to make themselves 
rich off of this settlement. Therefore I must oppose it.
  Mr. WELLSTONE. Will the Senator yield?
  The PRESIDING OFFICER. The time of the Senator has expired. Under the 
agreement, the Wellstone amendment will be set aside. The Senator from 
Illinois is recognized for purpose of introducing an amendment. The 
Senator from Illinois is recognized for 5 minutes.


                Amendment No. 1127 to Amendment No. 1078

  Mr. DURBIN. Mr. President, I have an amendment at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The bill clerk read as follows:

       The Senator from Illinois [Mr. Durbin] proposes an 
     amendment numbered 1127 to amendment No. 1078.
       At the end of the amendment, insert the following:
       ``Sec.   . Sense of the Senate.--It is the sense of the 
     Senate that attorneys' fees paid in connection with an action 
     maintained by a State against one or more tobacco companies 
     to recover tobacco-related costs affected by federal tobacco 
     settlement legislation should be publicly disclosed and 
     should not displace spending in the settlement legislation 
     intended for public health.''

  Mr. GREGG addressed the Chair.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. GREGG. Mr. President, I ask the time, the 5 minutes, be divided 
evenly between those in favor and those in opposition.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, this amendment gets to the heart of the 
question. What are these agreements? Are they generous? Are they 
reasonable? Each attorney general, under my agreement, will be forced 
to put it on the table in front of the people and say, ``Here is what I 
agreed to. If I agreed to pay 25 percent of the settlement then I have 
to explain to the taxpayers of the State why that was a sensible thing 
to do at the time.'' If it is a reasonable agreement, so be it. If not, 
the public official will be held accountable. And none of the money 
paid in attorney's fees will come out of the amount to be spent for 
public health purposes. I think this gets to the heart of it.
  The Senator from Alabama, in his amendment, says $5 million a State 
is more than enough to prosecute the tobacco companies; $5 million a 
State. It sounds like a princely sum until we hear the Senator from 
Minnesota stand up and tell us the tobacco companies spent $125 million 
in that State to defend themselves, 25 times as much. All of a sudden 
you step back and say maybe $5 million doesn't give you the resources 
for a fair fight.
  The Senator from Alabama has repeatedly said he doesn't know what 
these agreements consist of in other States. I think that is the reason 
why his amendment is flawed.
  Also, I think we should know in a State like Florida, which recently 
entered into an agreement, the question of attorney's fees was 
necessarily set aside. It is not part of the agreement that was 
announced. It is another amount to be paid by the tobacco companies, 
separate and apart from what is going to be paid to the taxpayers of 
Florida.
  Finally, let me say in virtually every one of these cases, in every 
State, not only will the court of public opinion decide whether 
attorney's fees are fair, but the courts will decide. Ultimately they 
have to rule on any order of settlement and any kind of agreement which 
might, in fact, bring it into a lawsuit. So they will have to 
ultimately rule on these attorney's fees.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
  Mr. GREGG. Mr. President, just to correct the Record, the $5 million 
the amendment of the Senator from Alabama presented is $5 million on 
top of ordinary and customary expenses. So if it cost $20 million or 
$100 million in the area of expenses to bring this lawsuit, that can be 
added to the $5 million base cost.
  My opposition--actually I probably will vote for it--but my position 
on the Durbin amendment is this. In concept, it is an excellent idea. 
But this is a sense of the Senate. A sense of the Senate means nothing. 
If the Senator from Illinois really means this, then he should have 
made it a matter of law. That is what it should be, a matter of law. We 
should be telling the tobacco companies you have to disclose. This 
sense of the Senate is a political document. It will give a lot of 
people in this body comfort politically, but it is not going to do one 
darned thing to get to the bottom of the question, which is how much 
are we going to end up paying to attorneys who are basically working 
with tobacco companies in obtaining their payment? How much is going to 
get paid to them as part of this settlement?
  The gravamen of this issue--to use the one legal term I remember from 
my law school days--is the point Senator Sessions made. When you have 
attorneys working against tobacco companies, and the tobacco company 
comes in and says, ``Well, here's another $1 billion in settlement,'' 
how long do they work against them? How aggressive are they in opposing 
them?
  If there is $40 billion of attorney's fees going out the door here, 
which is what is represented in some of the periodicals that have 
discussed this issue, how can you say that there is any sort of 
independence on the part of the plaintiff's counsel in the cases? The 
fact is, there are very few attorneys I know who, if somebody comes 
forward and says, ``Let's make this agreement,'' and they say, ``No, I 
can't agree

[[Page S9048]]

to that,'' and then the person who says let's make this agreement says, 
``Well, I'll give you another billion dollars in fees''--the attorneys 
are going to say that's pretty hard to turn down.
  Until we know what these attorneys are getting paid, we can't answer 
a lot of these questions. This Durbin amendment, as well-intentioned as 
it may be, accomplishes nothing in obtaining that knowledge. It is a 
sense of the Senate. We all know where those amendments go. This should 
be a matter of law.
  The PRESIDING OFFICER. The time of the Senator from New Hampshire has 
expired. The Senator from Illinois has 40 seconds remaining.
  Mr. DURBIN. Thank you. Mr. President, let me say at the outset, we 
don't have a settlement agreement. We are not talking about legislating 
one today. There is a good question, whatever we add to this 
appropriations bill, whether it is going to have an ultimate impact on 
that agreement.
  Let me also say, on the question of expenses, I think the Senator 
from New Hampshire would acknowledge expenses are specified costs of a 
lawsuit and don't get to attorney's fees. So, I would quarrel with him 
on that.
  Let me end by saying, there is on old poem:

     While I was walking up the stair, I met a man who wasn't 
           there.
     I saw that man again today.
     I wish that man would go away.

  The man that many of the people on this floor would wish to go away 
is a $50 billion tax credit. That is the underlying issue, and that is 
the important part of this debate.


                           Amendment No. 1126

  The PRESIDING OFFICER (Mr. Gregg). The time of the Senator from 
Illinois has expired. The question is on agreeing to the Wellstone 
amendment.
  Mr. WELLSTONE. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. SESSIONS. Mr. President, I move to table the Wellstone amendment 
and ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
lay on the table the Wellstone amendment.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The yeas and nays have been ordered. The clerk 
will call the roll.
  Mr. WELLSTONE. Mr. President, point of order. Would you read back the 
unanimous-consent agreement?
  The PRESIDING OFFICER. The clerk will report the unanimous-consent 
agreement.
  The assistant legislative clerk read as follows:

       That the Sessions amendment be agreed to and the Senator 
     from Minnesota [Mr. Wellstone], be recognized to offer a 
     second-degree amendment and there be 30 minutes for debate, 
     to be equally divided.
       Further, that at the conclusion of the debate, the 
     amendment be laid aside and the Senator from Illinois [Mr. 
     Durbin] be recognized to offer an amendment with debate 
     limited to 5 minutes. Following that debate, the Senate 
     proceed to vote on or in relation to the Wellstone amendment, 
     to be followed by a vote on or in relation to the Durbin 
     amendment, to be followed immediately by a vote on the Durbin 
     amendment No. 1078, as amended.

  Mr. WELLSTONE. I thank the Chair.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
lay on the table the Wellstone amendment No. 1126. The yeas and nays 
have been ordered. The clerk will call the roll.
  The bill clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Vermont [Mr. Bennett] 
is necessarily absent.
  Mr. FORD. I announce that the Senator from New Mexico [Mr. Bingaman] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 48, nays 50, as follows:

                      [Rollcall Vote No. 225 Leg.]

                                YEAS--48

     Abraham
     Allard
     Ashcroft
     Bond
     Brownback
     Burns
     Campbell
     Chafee
     Coats
     Coverdell
     Craig
     DeWine
     Domenici
     Enzi
     Faircloth
     Ford
     Frist
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Roberts
     Santorum
     Sessions
     Smith (NH)
     Smith (OR)
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--50

     Akaka
     Baucus
     Biden
     Boxer
     Breaux
     Bryan
     Bumpers
     Byrd
     Cleland
     Cochran
     Collins
     Conrad
     D'Amato
     Daschle
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Glenn
     Gorton
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Reed
     Reid
     Robb
     Rockefeller
     Roth
     Sarbanes
     Shelby
     Snowe
     Torricelli
     Wellstone
     Wyden

                             NOT VOTING--2

     Bennett
     Bingaman
       
  The motion to lay on the table the amendment (No. 1126) was rejected.
  The PRESIDING OFFICER. The yeas and nays have been ordered on the 
pending amendment.
  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. I thank the Chair.
  Mr. President, between the second and third votes, as a matter of 
management, it would be appreciated if the following Senators could be 
on the floor so we can sequence the balance of the amendments. We are 
fairly close to seeing light at the end of the tunnel. So if the 
following Senators would be good enough to stay on the floor for a 
brief scheduling discussion at that time it would be appreciated by the 
managers: Senator Murray, Senator Wellstone, Senator Daschle, and 
Senator Coverdell. If those Senators would be on the floor, it would be 
appreciated.
  The PRESIDING OFFICER. The yeas and nays have been ordered on the 
pending amendment, which is the Wellstone amendment.
  Mr. SPECTER. Mr. President, parliamentary inquiry. Are the yeas and 
nays ordered on the Wellstone amendment?
  The PRESIDING OFFICER. That is correct.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the yeas and 
nays be vitiated.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The question is on agreeing to amendment No. 1126.
  The amendment (No. 1126) was agreed to.
  The PRESIDING OFFICER. Is there a motion to reconsider?
  Mr. DURBIN. I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 1127

  The PRESIDING OFFICER. The question now is on agreeing to Durbin 
amendment No. 1127.
  Mr. DURBIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
1127. 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.
  Mr. FORD. I announce that the Senator from New Mexico [Mr. Bingaman] 
is necessarily absent.
  The result was announced--yeas 97, nays 1, as follows:

                      [Rollcall Vote No. 226 Leg.]

                                YEAS--97

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Biden
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Cleland
     Coats
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Enzi
     Feingold
     Feinstein
     Ford
     Frist
     Glenn

[[Page S9049]]


     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden

                                NAYS--1

       
     Faircloth
       

                             NOT VOTING--2

     Bennett
     Bingaman
       
  The amendment (No. 1127) was agreed to.
  Mr. DURBIN. Mr. President, I move to reconsider the vote.
  Mr. FEINSTEIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                     Amendment No. 1078, As Amended

  The PRESIDING OFFICER (Mr. Santorum). The question is on the Durbin 
amendment, as amended.
  Mr. LAUTENBERG. Mr. President, I rise today in strong support of the 
Durbin-Collins amendment to repeal Big Tobacco's rebate in the tax 
reconciliation bill. I will speak about this critical amendment in a 
minute, but first I would like to talk about an issue that was raised 
on the floor last night.
  That issue is whether Congress should subpoena hidden tobacco 
documents.
  Mr. President, we need to know the truth about nicotine and tobacco. 
That is why I, along with Senator Leahy and many of our colleagues, 
have asked the chairmen of the various committees with jurisdiction 
over portions of the settlement, to subpoena critical documents that 
the tobacco industry has conspired to hide from the American people.
  In debate on the floor yesterday, the distinguished chairman of the 
Judiciary Committee raised the issue of whether to subpoena these 
documents. The senior Senator from Utah has long been dedicated to 
saving our children from the dangers of tobacco. He has been outspoken 
about the critical need to reduce teen smoking rates.
  Yet, the chairman questioned the necessity of Congress subpoenaing 
these documents which have been kept from the public because they were 
falsely stamped attorney-client privilege. The chairman raised some 
valid concerns, and I would like to respond.
  Mr. President, we are at a critical juncture in the war between the 
tobacco companies and the public health. The tobacco industry wants the 
American people to disarm. They want to strip Americans of their right 
to seek punitive damages for harm caused by the tobacco industry's 
deceitful practices. The industry wants Congress to grant it 
unprecedented protections from legal liability.
  In return, the American people are promised a reform of our public 
health laws that will protect loved ones in the future from the dangers 
of tobacco addiction and illness. It would be up to Congress to write 
these laws. That is a heavy responsibility.
  In order to properly execute this responsibility, we owe it to the 
American people to collect the most complete information about the 
effects of tobacco and nicotine on human health. Through our subpoena 
power, we have the ability to collect this information. We need 
information on whether a safer cigarette could be manufactured, or if 
we can produce a less addicting form of nicotine.
  Mr. President, that information is in the hands of the tobacco 
industry, and they have consistently hidden it from the American people 
for decades. If we are to enter into a legislative settlement with this 
industry, then it must come clean with Congress and the American 
people. Since it has not done so yet, we should start issuing subpoenas 
for the truth.
  Mr. President, some have suggested that the document disclosure 
provisions in the proposed settlement are sufficient. However, I 
strongly disagree. The proposed settlement would merely set up a 
clearinghouse for documents already produced in court cases. In other 
words: it discloses nothing new.
  Mr. President, we have learned more details in recent weeks about how 
the tobacco companies routinely funneled documents through their 
lawyers in order to fraudulently mark them as attorney-client 
privileged. In fact, many of these documents relate to health concerns 
and were simply given to the lawyers to cloak them in a false shroud of 
the attorney-client privilege.
  These are the most critical documents. They hold the keys to saving 
millions of lives.
  Congress has the power to subpoena and examine these documents before 
we enact a legislative settlement. We need that information to craft 
effective public health policy. The settlement would allow the industry 
to delay court review of these documents for years after a settlement 
is enacted.
  Now, review of these documents might be time consuming. The 
distinguished chairman of the Judiciary Committee, in his floor 
statement yesterday, noted that over 33 million pages have been 
collected in the State of Minnesota's suit against the tobacco 
industry. Our estimate is that we'll find the information we need in at 
most 1\1/2\ million pages.
  The Minnesota attorney general, in preparation for his trial against 
Big Tobacco, has bound, numbered and indexed around 500,000 pages into 
a volume called the Minnesota Select Set. This set of documents 
contains critical information we need in order to draft appropriate 
public health legislation. We should subpoena this set.
  In addition, the Minnesota court hearing the case has collected 
around 1 million pages of material that the industry has claimed is 
privileged. However, we know that the Industry has a history of falsely 
claiming this privilege in order to hide critical health information.
  It is unclear how many pages are in the privileged set, but it has 
been estimated to be about 1 million pages. Both of these sets are 
being held in warehouses in Minneapolis and London under the control of 
a Minnesota court.
  Mr. President, I would like to clarify that my subpoena request is 
for, at most, about 1\1/2\ million pages. Although this is a lot of 
material, one need only watch another child light up a cigarette to 
realize it is well worth the time.
  Let me put this into perspective: The Governmental Affairs Committee 
has subpoenaed over 10 million pages of documents from the AFL-CIO 
alone in its campaign finance investigation.
  This subpoena request for tobacco industry documents is about the 
lives of American children. Isn't that worth the time needed to 
carefully review these documents? Why rush into a settlement in 50 days 
with an industry that has lied to America for 50 years?
  Therefore, I ask my colleagues to support the request of Senator 
Leahy and myself to the chairmen of relevant Senate committees to 
subpoena these hidden tobacco industry documents.
  I hope that this discussion clarified this issue for my colleagues.
  Now, Mr. President, I would like to address the Durbin-Collins 
amendment to repeal the provision in the tax reconciliation bill that 
granted a $50 billion giveaway to the tobacco industry. This clause 
should never have been snuck into that bill and it is time to remove 
it.
  This provision of the recently enacted tax reconciliation bill would 
divert $50 billion away from the public health and into the pockets of 
Big Tobacco. If comprehensive tobacco legislation is eventually 
enacted, Big Tobacco will write 50 billion off the top of their payment 
obligations.
  This shortfall could mean billions of dollars in programs to keep 
kids away from cigarettes will be lost. It could mean billions of 
dollars in smoking cessation programs will not be paid for.
  In any settlement, the tobacco industry must pay its fair share. If 
the industry gets a $50 billion break in the settlement, that cost will 
have to come out of taxpayer's pockets. That is unacceptable.
  The tobacco companies shouldn't get a rebate. They're not a car 
dealership--they're a drug dealership.
  There are those who say that this rebate was part of the proposed 
settlement deal. Well, that's news to the attorneys general who 
negotiated it. They never signed off on such an arrangement.

[[Page S9050]]

  Mr. President, this is another example of why we can't trust this 
industry. After claiming to act in good faith, they scheme behind 
closed doors to undermine the American people. As we embark on public 
health legislation for the next century, let's work to keep this 
process out in the open and get rid of the smokey back room deals on 
tobacco.
  Mr. President, I therefore urge my colleagues to support the Durbin-
Collins Amendment and join us in repealing the $50 billion credit for 
Big Tobacco. The last thing the tobacco industry is entitled to is a 
rebate.
  Mr. FAIRCLOTH. Mr. President, I rise to say a few words about this 
amendment, which will probably sail through the Senate. I spoke to my 
colleagues, and I know that we don't have the votes now, but we will 
revisit this issue in the global settlement.
  It is quite easy to come down to the Senate floor and rail about the 
tobacco companies. Well, Mr. President, let me say something about 
those tobacco companies. Mr. President, those companies employ more 
than 20,000 people in North Carolina, and those jobs are in jeopardy if 
we tax the tobacco companies into bankruptcy.
  These are hard-working men and women punching the timeclock every 
day. They are raising families on these wages, paying mortgages, just 
trying to get by. These jobs represent a payroll of more than $1 
billion. They are good jobs, well-paying jobs, and I will not be part 
of this attack on their livelihoods.
  This is just another attack on tobacco carefully staged for the 
television cameras. This is a personal attack on tobacco farmers. The 
companies are the front this time. Just a subterfuge for yet another 
attack on the farmers and another potential source of revenues. In 
fact, they're ready to spend money we don't even have, and I think that 
this is the height of irresponsibility.
  I hope that my colleagues will resist the lure of easy political 
points.
  Mr. MOYNIHAN. Mr. President, I will support the amendment of the 
Senator from Illinois to repeal section 1604(f)(3) of the Taxpayer 
Relief Act of 1997, which purports to credit the increase in tobacco 
excise taxes against any federally legislated tobacco settlement 
agreement. While I have opposed other amendments that would have opened 
up the balanced budget agreement signed into law on August 5, 1997, a 
mere 5 legislative days ago, there are good reasons to support the 
amendment offered by Senator Durbin. Unlike the other provisions of the 
reconciliation legislation that have been the subject of amendments, 
the provision at issue in the Durbin amendment is an orphan. No one is 
willing publicly to take credit for having written it and securing its 
inclusion in the tax bill--which was done at the last minute, without 
analysis or debate by the Members of either the House or Senate.
  On July 31, 1997, during the debate on the conference report to the 
Taxpayer Relief Act of 1997, the Senator from Illinois sought to raise 
a point of order against the provision he now seeks to repeal. I voted, 
with 77 other Senators to waive all points of order against the 
conference report. I said at the time that the provision was 
meaningless and had no binding effect. I continue to hold this view, as 
the tobacco settlement is far from completed, and it is still subject 
to approval by the President and Congress. Yesterday's New York Times 
reported that President Clinton will not offer an opinion on the 
proposed tobacco deal until next week at the earliest, and that the 
White House will not endorse a settlement without significant changes. 
In fact, it is beginning to appear unlikely that Congress will complete 
action on the matter before adjourning for the year. In addition to any 
changes that the administration proposes, the Congress will want to 
exercise its independent judgment on the proposed agreement. The June 
20, 1997, agreement does not contain all of the details necessary to 
effectuate a settlement. There are a number of areas where the 
agreement provides no guidance, the most striking of which is the lack 
of a mechanism to govern the payment and distribution of the $368.5 
billion by the cigarette manufacturers.
  A White House spokesman has indicated that President Clinton supports 
this amendment, and if Congress does not act to rescind this credit, 
the President will insist that $50 billion be added to any final 
settlement amount.
  And so, although the provision has no real impact on legislation that 
this Senate may take up at some future date, I agree with Senator 
Durbin that the mere existence of the provision, and the process by 
which it found its way into the statute, is troubling. Let us strike it 
and eliminate any concern that the tobacco companies are getting away 
with something.
  Mr. SPECTER. Mr. President, if I might have the attention of all 
Senators to discuss sequencing. It might be possible, realistically, to 
finish the bill this evening. The next amendment, following the vote, 
will be the Murray amendment, where there is 1 hour equally divided. 
But it is my anticipation that Senator Murray will use her 30 minutes, 
but there will not be a reply. The next amendment will be the Wellstone 
amendment, 40 minutes equally divided. Here again, I think that will be 
disposed of in less than 40 minutes. Then we have the Daschle 
amendment, which is 20 minutes equally divided, and then the Coverdell 
amendment, 10 minutes equally divided.
  It is the manager's intention to have votes on these four amendments 
later this afternoon, but it is impossible to say when because of the 
impossibility of determining the amount of time. But the votes will 
occur as soon as the arguments are finished on those four amendments. 
We will then go to the Gorton amendment, where we don't have a time 
agreement. But the Senator from Washington says he may be able to enter 
into one shortly after that discussion starts. That would leave us with 
only two amendments outstanding on school testing, where the parties 
are reasonably close to an agreement on the Teamsters issue, which we 
will, I think, be able to resolve. But that is yet uncertain. That will 
be the sequence.
  The PRESIDING OFFICER. The question is on agreeing to the Durbin 
amendment, as amended.
  Mr. DURBIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the Durbin 
amendment, as amended. The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. NICKLES. I announce that the Senator from Utah [Mr. Bennett] is 
necessarily absent.
  Mr. FORD. I announce that the Senator from New Mexico [Mr. Bingaman] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 95, nays 3, as follows:

                      [Rollcall Vote No. 227 Leg.]

                                YEAS--95

     Abraham
     Akaka
     Allard
     Ashcroft
     Baucus
     Biden
     Bond
     Boxer
     Breaux
     Brownback
     Bryan
     Bumpers
     Burns
     Byrd
     Campbell
     Chafee
     Cleland
     Coats
     Cochran
     Collins
     Conrad
     Coverdell
     Craig
     D'Amato
     Daschle
     DeWine
     Dodd
     Domenici
     Dorgan
     Durbin
     Enzi
     Feingold
     Feinstein
     Ford
     Frist
     Glenn
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Inouye
     Jeffords
     Johnson
     Kempthorne
     Kennedy
     Kerrey
     Kerry
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lott
     Lugar
     Mack
     McCain
     Mikulski
     Moseley-Braun
     Moynihan
     Murkowski
     Murray
     Nickles
     Reed
     Reid
     Robb
     Roberts
     Rockefeller
     Roth
     Santorum
     Sarbanes
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Torricelli
     Warner
     Wellstone
     Wyden

                                NAYS--3

     Faircloth
     Helms
     McConnell

                             NOT VOTING--2

     Bennett
     Bingaman
       
  So the amendment (No. 1078), as amended, was agreed to.
  Mr. DURBIN. Mr. President, I move to reconsider the vote by which the 
amendment was agreed to.

[[Page S9051]]

  Mr. GLENN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Thank you, Mr. President.


                           Amendment No. 1118

  Mrs. MURRAY. Mr. President, I ask unanimous consent to call up my 
amendment No. 1118.
  The PRESIDING OFFICER. Without objection, it is so ordered. Amendment 
No. 1118 is the pending business.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that no second-
degree amendments be in order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that Senator 
Landrieu be added as a cosponsor to this amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Thank you, Mr. President.
  Mr. President, this amendment that is being offered today by myself, 
Senator Wellstone, and Senator Landrieu is not unfamiliar to this body. 
In fact, the U.S. Senate has voted three times on the amendment that is 
now before us. Three times we have passed this amendment unanimously--
once in the welfare bill, once in the budget bill, and once in the 
budget reconciliation bill. All three times when this amendment was 
brought before this body, not one Senator spoke against it. It was 
voted on and passed and sent to conference committee. Without one 
single voice of opposition and without one single vote of opposition, 
this amendment was stripped in the conference. Perhaps it is no 
surprise when you hear the subject of this amendment. It is regarding 
domestic violence.
  Too often women in our country when it is in the light of day have 
everyone behind them and support them when it comes to domestic abuse. 
But these women know where abuse occurs. It occurs behind closed doors 
when no one is watching.
  This Senate should not approve of that kind of action. This amendment 
is one that is absolutely vital to the health and welfare of women, 
their families, and the communities that surround them. The policemen 
are too often called to situations where a domestic violence incident 
is occurring, and their lives are then put on the line.
  The amendment that we are offering today does a simple thing. It 
allows a temporary waiver of the work requirement for a victim of 
domestic violence in order for them to take care of their medical 
needs, to change their Social Security number, to take care to make 
sure that their children are in a safe place and that their family is 
secure before they are required to be at work. We know that, if a woman 
is being abused and she is required to be at work, her abuser will 
often go there to find her or put up barriers so she can't be there. 
She knows that her life is insecure if her abuser can find her at a 
workplace where she has to give her Social Security number, where she 
has to let them know where she is going to be. Where her children are 
in day care, she can't take care of them to make sure they are safe and 
secure.
  That is why this humane and compassionate Senate three times has 
passed this amendment. It is a temporary waiver. We are not asking for 
a permanent waiver of the work requirements. In fact, we want women who 
are victims of domestic violence to be at work. Being economically able 
to take care of themselves is the security they need in order to leave 
a domestic violence situation. But we want to make sure that they 
aren't at work with bruises and don't show up at work and are afraid to 
show up at work with bruises. We want to be sure that their children 
are in a safe place, if they are victims of domestic violence, before 
we require them to be at work. We want them to be able to change their 
Social Security number so they can't be followed before we require them 
to be at work. Too often these things take months. Changing your Social 
Security number can often take months.
  We in this Congress don't want to put these women in abusive 
situations inadvertently. This amendment simply is going to remove a 
barrier for women so that they can get out of the domestic violence 
situation. When a woman decides to get out of a situation, she has to 
know, ``Can I have the money? Can I have the ability to take care of my 
children, to take care of myself?''
  Welfare allows her the ability to get out of that situation, to get 
herself back on her feet, and to get into the work force, which is 
exactly what she wants to do so she can be economically secure.
  The way the welfare bill is written today, it does not allow her to 
do that.
  When we passed this temporary waiver, we said to these women that we 
would give to States the ability to screen for domestic violence so 
that they will be allowed to help these women get on their feet and get 
back into the work force. We did that intelligently here in the Senate. 
In fact, it passed unanimously in the House as well. But when this 
amendment got behind closed doors, women were once again abused, and it 
was stripped from the bill.
  It is absolutely essential that we put this law into the books so 
that the States across the Nation who are waiting to see what our 
action is can make sure that women who are abused are taken care of.
  Today, the Children's Defense Fund has come out in support of this 
amendment, and I ask unanimous consent to have this printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                      Children's Defense Fund,

                                                September 9, 1997.

              CDF Supports Anti-Family Violence Amendment

       Washington, DC.--The Children's Defense Fund (CDF) 
     announced its support today for the Victims of Family 
     Violence provision proposed by Senators Patty Murray (D-
     Wash.) and Paul Wellstone (D-Minn.) as an amendment to the 
     Senate Labor, Health & Human Services, and Education 
     Appropriations bill for Fiscal Year 1998.
       The amendment allows states to temporarily waive certain 
     requirements of the 1996 welfare law for families that are 
     victims of domestic violence, even if their number exceeds 
     the law's 20 percent cap on exemptions to the time limit.
       ``Mothers who have been threatened or battered need a safe 
     place for themselves and their children, and need support to 
     reenter the work force. The Victims of Family Violence 
     amendment makes it possible for states to offer that 
     protection and help to mothers and children,'' said Grace 
     Reef, Director of Intergovernmental Relations of the 
     Children's Defense Fund. ``Twenty-eight states have opted 
     under the 1996 welfare law to screen for family violence and 
     offer services to families affected. These and other states 
     need the clarification that this amendment provides to ensure 
     that families receive the help they need to escape immediate 
     danger and plan for their return to work.''
       Studies by the Better Homes Fund and the University of 
     Massachusetts Medical Center and by the Taylor Institute in 
     Chicago have documented the prevalence of domestic violence 
     in the lives of women and children receiving public 
     assistance. Another study found that 55 percent of battered 
     women surveyed had been prevented from working by their 
     batterer (Shepard and Pence, 1988). More than half of 
     battered women responding to a survey said that they stayed 
     with their batterer because they did not feel they could 
     support themselves and their children (Sullivan, 1992).
       ``The Victims of Family Violence amendment means safety for 
     children and their mothers while they take the steps 
     necessary to move on with their lives,'' said Reef.

  Mrs. MURRAY. Mr. President, they know what far too often happens to 
children who are in abusive situations if there are barriers to that 
woman getting to work. We want to make sure that there are no barriers. 
The CDF explicitly outlines this in their statement today, and I thank 
them for their support.
  Mr. President, I have worked on this issue for a number of months--in 
fact, for a number of years. It has become more critical to me in the 
last few weeks because of events that happened in my home State.
  About a week ago a young officer in Takoma, WA, was called to a home 
where a domestic violence situation had occurred. Unfortunately, he was 
shot and killed. He has a 1-year-old child. He is gone. I heard from 
many police officers who tell me how risky it is for them to go to 
homes where domestic violence calls have been placed. We need to make 
sure that we allow these women to get out of those situations so we 
don't have the increased numbers that we today have of domestic 
violence calls. I am amazed at the increased number. In fact, in the 
Seattle Times just a few days ago was an

[[Page S9052]]

article, that I will submit in a minute, which says that in Seattle in 
1995--which is the latest year for which any data are available--there 
were over 16,000 calls to 911 related to domestic violence.
  It was just reported that there is an epidemic, an increase in the 
violence in Spokane County with more than 6,400 cases reported last 
year, which is a big increase over prior years.
  In Tacoma, where a young police officer was just killed, it is 
reported that during the past 15 years 11 police officers in the Puget 
Sound area have been killed in the line of duty. Four of those officers 
were slain while responding to calls to help settle domestic disputes, 
a huge portion of them.
  We need to make sure that as a body we do everything we can to help 
women get out of domestic violence situations in a safe and responsible 
manner, to get them back to work in a way that economically works, that 
their health care is taken care of, that their children are taken care 
of so that they get out of these situations. If the work requirement 
remains in place, women will be forced to stay at home with their 
abuser. They will not be able to go out and get themselves economically 
independent in a responsible way.
  Mr. President, 27 States have asked for a waiver on family violence. 
Until we clarify the language here in the Senate and approve it in 
conference, these States will not be able to move forward without being 
penalized under the work requirements of the welfare bill.
  I urge my colleagues to support this amendment with a recorded vote 
this time so that we can send it to conference and do the responsible 
thing that is required of all of us when we care in a humane way about 
women who are in a situation in which none of us ever wants to be.
  I see my colleague, Senator Landrieu, a cosponsor of the amendment, 
is here, and I yield her time to speak.
  The PRESIDING OFFICER (Mr. Hutchinson). The Senator from Louisiana.
  Ms. LANDRIEU. I thank the Chair.
  I rise to thank my colleague from Washington State for her admirable 
work in this area and for her persistence in year after year presenting 
this amendment that so clearly is deserving on its merits, and coming 
back again for the third time to this body, which has already expressed 
strong support for this clarification of this waiver because this body, 
on both sides of the aisle, Mr. President, I think, understands the 
great trauma and pain of families experiencing violence, both to the 
woman primarily and also to the children.
  I rise because I supported the welfare reform effort. I was not here 
as a new Senator, so I was not able to vote. But I want to say for the 
record that I support our efforts to change the welfare system in 
America, as long as those changes allow for job training and day care 
opportunities and transition. We do need to do a better job in this 
country of moving people from welfare to work. We need to do a better 
job of honoring work, particularly for those working at the minimum 
wage. So I support the changes.
  My colleague from Washington has expressed beautifully that there are 
some modifications and clarifications that are essential. This one is 
essential.
  With the suffering that is incurred by millions of children --and I 
say millions of children--who are in homes where this violence is 
occurring, the screams in the night, the begging for someone to help, 
the years of torture and abuse that many children suffer and many 
spouses suffer, we have to do more. Let us not add to their pain and 
suffering by letting this remain unclear in the law, when it is so 
clear that we want to say that the States simply have the right to 
design temporary relief for them so that they do not have to give 
certain information that would put them in jeopardy and put their 
children's lives at risk.
  I can only say how hopeful I am that when we pass this amendment, 
which looks as if it will pass by a large margin, it will this time 
stay in this bill for the children of the Nation, who literally--and I 
wish I could play a tape that I heard just this week by a chief of 
police who stood up before a group of us and said, ``This is a tape 
that I use for training my officers.'' It was horrifying to listen to 
this child scream in the night for a dispatcher, an operator to send 
help quickly to the home where a male--I do not know if it was the 
father or a friend--was beating this child's mother. To close your eyes 
and listen to this tape and this child's screams was almost more than I 
and others in the room could stand.
  So let us not add to the suffering. Let us be clear. Let us give the 
States a chance to do the humane thing.
  I thank the Senator from Washington and I urge our colleagues to 
support this amendment.
  I thank the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. Mr. President, I thank my colleague, Senator Landrieu, 
for her excellent statement and for all of her support and her help on 
this very important piece of legislation.
  I know that Senator Wellstone also wants to speak on behalf of our 
amendment today, and I believe he is on his way to the floor. While we 
are waiting for him, let me read a paragraph or two from a press 
release put out by the Children's Defense Fund today, who, as I spoke 
about before, know firsthand what happens to children in violent 
situations. I quote:

       Mothers who have been threatened or battered need a safe 
     place for themselves and their children and they need support 
     to reenter the work force. Passage of the family violence 
     amendment makes it possible for States to offer that 
     protection and to help mothers with children.
       There are studies by the Better Homes Fund and the 
     University of Massachusetts Medical Center and by the Taylor 
     Institute in Chicago that have documented the prevalence of 
     domestic violence in the lives of women and children 
     receiving public assistance. It is important that we pass 
     this amendment today so that we can make sure these women and 
     these children are taken care of in this country and live in 
     safe environments.

  Mr. President, I am going to yield time now to Senator Wellstone, who 
has been instrumental in this battle. I thank him for all of his work 
on behalf of the many women and children across this country who will 
be able to feel much safer when we finally get this passed and put into 
the law.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. I thank Senator Murray. This has been a labor of love, 
working with her on this, from the very beginning. I do think it is 
very, very important. We have had voice votes on this, but we now need 
to get the Senate on record, and this is an extremely important 
amendment.
  It is interesting; this amendment essentially says--and I know 
Senator Murray and I are so pleased that Senator Landrieu has also 
joined us--to States, look, Arkansas, Minnesota, if you decide what you 
want to do is request a good-faith waiver, not a total exemption, so 
that you can as a State such as Minnesota in dealing with a family, a 
woman who has been battered, has been beaten up over and over again and 
also dealing with her children, say, look, from the point of view of 
our work force participation requirements of the welfare bill or 
ultimately from the point of view of how many people there are going to 
be in terms of what percentage of people have to be off the rolls, we 
may need a little more time to give support to these families. We may 
need a little bit more time. One size does not fit all.

  I would like to thank my wife, Sheila. I said to Senator Murray, she 
has worked so hard on this. I would like to thank her and also the 
community in Minnesota that has provided us with a lot of support. The 
fact is when you meet with families, you realize that all too often a 
woman has been battered over and over again, her children have seen it, 
and it just may be that she is not able right away to move into a job.
  I just want to thank Jody Raphael at the Taylor Institute in Chicago, 
who does rather magnificent work. I would also like to thank Pat Reuss, 
of the NOW Legal Defense and Education Fund, who has been great.
  Jody pointed out--I am not going to quibble on statistics --in some 
of her work that a real high percentage, maybe 20 percent or more, of 
these mothers, welfare mothers who have in fact been beaten, are, in 
fact, if you will, victims of abuse in their homes.

[[Page S9053]]

 This also affects the children who see it.
  So the reason for this amendment is we just want to make crystal 
clear to our States, all of our States, that they do have clear 
direction and support from the Federal Government, from the Congress 
and the White House and Health and Human Services, that Minnesota, 
Washington, if you want to provide additional support services and you 
want to make sure that a woman gets those support services, you can ask 
for a good-faith waiver to make sure you can do that.
  Otherwise--and colleagues need to understand this, and that is why 
Senator Murray and I come back to the floor again--we are talking about 
a very dangerous situation. We talk in this Chamber, the words are 
spoken and we mean it, but sometimes we forget the connection to 
people's lives.
  If you do not do this, what is going to happen to all too many women 
is they are going to be in a situation where they are going to be 
forced into a work situation. They are not able to do it. They are 
stalked by a former boyfriend or former husband or whatever the case 
is. They have been beaten up and maybe they can't even come that day 
for job training. Maybe physically they cannot come. Maybe they are 
just ashamed to show up. All of a sudden, because women cannot work, 
given what is going on, given what is happening to them, given what 
their children are seeing, we are going to say to these women, ``You 
are off of any AFDC assistance. You do not get any assistance at all.''
  Then what happens, colleagues, is they have one choice for their 
children. They have to go back into that very dangerous home. They have 
to go back and be with that batterer.
  Now, Mr. President, the shame of it is--and this is why we come to 
the floor--the Senate has gone on record, what, three times, I ask the 
Senator, and then every time--I have heard Senator Murray speak about 
this eloquently so I do not need to repeat her words--and then every 
single time in conference this just gets knocked out. That is really 
outrageous. That is really outrageous.
  It is time that we pass this with a strong recorded vote, and this 
should be a message to the Congress and a message to the White House 
and a message to Health and Human Services: Please, get the directive 
out to the States making it clear to States--right now we have, what, I 
ask the Senator, 26 States?
  Mrs. MURRAY. Twenty-seven.
  Mr. WELLSTONE. Twenty-seven States that have been able to go forward. 
But even Minnesota, which has gone forward, on the basis of talking to 
the Senator and Sheila, they have still gone ahead with clear 
direction. They know the amendment has been passed. They know what it 
is they are supposed to be doing, but they have not really seen it in 
writing from the White House, from Health and Human Services. We need 
that to happen. This is what this amendment is all about.
  I conclude by thanking my colleague, Senator Murray. I think it is 
extremely important that not only women and not only their children, 
but there are a lot of men who care about this issue in the State of 
Washington, Arkansas, and all across the country--I think it is very 
important that people in our country realize you need a strong voice on 
this issue.
  Senator Murray has been that kind of Senator. I really would like to 
thank her for all of her leadership and, for that matter, for just her 
tenaciousness in coming back over and over and over again and not 
letting up on this, because this is about people's lives, it is about a 
lot of women who have had to deal with something that we hope and pray 
none of our daughters and none of our sisters ever have to deal with. 
We ought to make sure that we provide them with the assistance they 
need.
  I will tell you, as a Senator from Minnesota, a State which has done 
a lot of good work in trying to provide support for women and children, 
and as the husband of my wife, Sheila, who cares so much about this, I 
am honored to be in this struggle with Senator Murray, and I know we 
will prevail with a strong vote.
  I yield back the rest of my time.
  The PRESIDING OFFICER. The Senator from Washington.
  Mrs. MURRAY. I thank my colleague from Minnesota for his strong words 
and his support of this amendment and all of his work on behalf of this 
as well as that of his wife, Sheila.
  Mr. President, how much time remains on my side?
  The PRESIDING OFFICER. The Senator from Washington has 10 minutes 
remaining.
  Mrs. MURRAY. Mr. President, I am going to ask shortly for a rollcall 
vote on this amendment. It is imperative we have a strong rollcall vote 
on the underlying amendment so we can move it to conference with a very 
strong message from the U.S. Senate that we are going to support this 
with our voices, with our votes, and that we are going to watch it in 
the conference committee so it remains in this time.
  We are going to send a strong message to the White House that this 
body is not just doing this as some kind of political maneuver, we are 
doing it because we mean it and our votes are going to back it up. We 
are not just going to talk about domestic violence, we are going to be 
there to make sure the action takes place to take care of the women who 
are abused and are put in this horrendous situation that each of us 
hopes never to be in. It is imperative we do this for the women who are 
being abused. It is also imperative we do it for the neighborhoods and 
communities they live in. And it is imperative we do it for our police 
officers across this country who are put in these violent situations 
far too often today. We need to do our part to prevent that from 
happening as well.
  Mr. President, I am ready to yield the remainder of my time if there 
is no one going to speak in opposition, and to ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is the Senator seeking the yeas and nays?
  Mrs. MURRAY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mrs. MURRAY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that we yield 
back all time on amendment No. 1118 and set it aside so Senator 
Wellstone can move forward.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I will be ready in just a moment. 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. WELLSTONE. 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. 1087, As Modified

         (Purpose: To increase funding for the Head Start Act)

  Mr. WELLSTONE. Mr. President, I ask unanimous consent that I modify 
my amendment and I send the modified amendment to the desk.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 1087), as modified, is as follows:
       On page 61, after line 25, insert the following:
       Sec.   . (1) The total amount appropriated under this Act 
     to carry out the Head Start Act shall be $4,830,000,000, and 
     such amount shall not be subject to the nondefense 
     discretionary cap provided in section 251 of the Balanced 
     Budget and Emergency Deficit Control Act of 1985, and shall 
     not count toward the Committee and Subcommittee allocation 
     pursuant to that Act; and
       (2) the amount appropriated for the Department of Defense 
     for fiscal year 1998 is hereby reduced by $525,000,000.

  Mr. WELLSTONE. Mr. President, this amendment would add $525 million 
to the budget for Head Start. I thank my colleagues, Senator Harkin and 
Senator Specter, for their fine work. This bill already provides Head 
Start with a $324 million increase in funding for 1997. The President, 
the Clinton administration, claims this will allow

[[Page S9054]]

Head Start to serve 1 million students by the year 2002.
  The Head Start Association has said rather loudly and clearly that, 
in order for Head Start to actually serve 1 million students by the 
year 2002, it would need another $525 million this year and every year 
until 2002. Therefore, I offer this amendment to increase Head Start's 
funding by an additional $525 million to reach that goal of 1 million. 
We ought not say we will reach that goal unless we make the commitment.
  In order to reach this goal, the offset that I propose would be by a 
rescission from this year's appropriation for the Department of 
Defense. I could talk about a whole lot of different waste in the 
defense bill, but just to give but one example, the B-2 bomber most 
recently has been reported to be unable to fly in the rain and the snow 
by the General Accounting Office. It, itself, is slated to receive $586 
million from the Senate, and $928 million from the House. Though this 
amendment is not about the debate on the B-2, I understand the Senate 
has basically said no more B-2's; I think on the House side they have 
talked about moving forward.
  The Head Start Program currently serves 740,000 students. Head Start, 
roughly speaking, serves 30 percent of the eligible population of 4- to 
5-year-olds; and only 18 percent, if we were going to talk about right 
after birth until age 5. That means Head Start does not have the money 
to serve more than 2 million eligible 4- and 5-year-olds and roughly 4 
million children from right after birth to age 5. There is no way that 
this amendment does enough, but it would make a difference. In my State 
of Minnesota, the money for Head Start covers 9,000 Minnesota children 
who are eligible out of a population of, roughly speaking, 25 million 
children.
  I want to be clear about this. I know I will be up against a point of 
order and I do not expect to win on this amendment. This amendment says 
that there is still plenty of waste in the Pentagon budget--the B-2 
bomber is one good example. On the House side it barely passed any 
increased funding, a plane that cannot fly in the snow or in the rain, 
but there are other examples as well. I am just saying, when we look at 
hundreds of billions of dollars for the Pentagon, couldn't we transfer 
$525 million to make sure we reach our goal of covering 1 million 
children?
  But there are two parts to this amendment. The first part is, if we 
are going to say White House, or we are going to say U.S. Senate, that 
we are going to make sure that 1 million children are covered, let's 
not make it symbolic.
  Let's do what the Head Start Association itself says we have to do to 
make sure we at least cover 1 million children. That is what this 
amendment says.
  Mr. President, let me go on and say one more time that Head Start 
altogether leaves out 4 million children-plus who could receive a head 
start.
  Just to focus on what this amendment is about, there are plenty of 
people who have said there is more than enough waste in the Pentagon 
budget--administrative waste, going forward with some weapons systems 
that make no sense whatsoever--but I hardly hear anybody on the floor 
of the U.S. Senate say that we should make a commitment to Head Start, 
which is just about that, giving children from families with really 
difficult circumstances a head start.
  But we are not even going to reach our goal of 1 million children 
unless we provide this additional $525 million. We can do better, I say 
to my colleagues. We can do better for children in this country. We can 
do better for poor children in this country.
  The scandal to all this is that we are not even coming close to 
covering 30 percent of the overall population that is eligible. On the 
one hand, we say we are committed to small children. On the one hand, 
we have all of this research that is coming out about the development 
of the brain, talking about how the early years are most critical--
right after birth to age 3, actually before birth, that a woman 
expecting a child should get good care. But at the same time, when you 
look at just not the 4 and 5 year olds, but when you look at early Head 
Start, which is right after birth to age 3, we are covering just a 
small, tiny fraction of the children who could really benefit from this 
help. What my amendment does is try to appeal to the goodness of the 
Senate and try and say that we can do better.
  Mr. President, I have been honored as a U.S. Senator from Minnesota 
to have the opportunity to travel in the country and to be in 
communities where people are really struggling against some pretty 
difficult odds, I will just tell you, whether it be in Chicago, in a 
heavily Latino neighborhood on the south side of Chicago and visit with 
the Head Start Program and you see these beautiful programs and you 
meet with the staff.
  Mr. President, the men and women who are the Head Start teachers and 
teachers' assistants barely make above poverty wages, but you see the 
good work they are doing and you see all the ways in which children in 
Head Start receive some intellectual stimulation, they get referred to 
health care clinics so that they can get the health care that they 
need, so that they can get the dental care that they need. You see the 
way in which these programs, at their best, give children 
encouragement. It breaks my heart that we cover such a tiny percentage 
of children who could really use this help.
  This really can make a huge difference in young children's lives. I 
have gone to east Kentucky and have spent time in Appalachia and, 
again, I met, first of all, mainly women who are Head Start teachers. 
They should be heroines. I asked a woman who has been with Head Start 
from the beginning, ``Why do you do this? You certainly don't make much 
money.''
  She said, ``I do this because I know what I can do for children. I 
get so much satisfaction from giving these children this encouragement, 
from making sure I can help these children at a very young age.''
  We know that. We say we are committed to early childhood development. 
We say we are committed to covering. We say we are committed to 
covering that. The administration says we have to make sure 1 million 
children are covered. We don't have enough funding. The Head Start 
Association tells us we don't have enough funding for actually 1 
million students by the year 2002--1 million children--which is just a 
tiny percentage of the number of children who are eligible.
  Mr. President, my amendment is pretty simple and straightforward. It 
says let's live up to our words. We have more than enough waste in the 
Pentagon budget. We ought to be able to transfer $525 million to make 
sure we live up to our word and/or contract with these children and at 
least 1 million children by 2002 receive this Head Start assistance.
  I don't know whether or not we are or are not going to have a 
discussion about the testing and whether or not the Federal Government 
or an independent group develops tests, but I want to speak about that 
for a moment because I think it is directly related.
  I want to say two things by way of conclusion. I say to my 
colleagues, I don't expect to win. I don't expect to get a huge vote 
because this is a transfer amendment, and I have seen what happens to 
transfer amendments from the Pentagon to these kinds of needs. But you 
can travel in this country, go to Chicago, or go to Minnesota, or go to 
delta Mississippi or go to Kentucky and meet with children and meet 
with families and see the good work that is being done by people who 
should be famous and then see how little they have to work with and 
how, if we would just invest a little more and not come to the floor 
and fight, more of these children would have a head start. So win or 
lose, I am going to speak out on this, and I am going to fight for it.
  Mr. President, I also want to say to the President, to the White 
House and to the administration, I have been thinking long and hard, if 
we actually have a vote on this in the Senate, about this whole 
question of testing. I just want to say that I have a certain amount of 
sympathy, as someone who was a teacher for 20 years, with those who 
kind of wonder about the standardized tests. Yes, we want 
accountability and, yes, it is voluntary.
  I will tell you, I have a real concern about the focus on tests as 
the way we measure accountability when I think that what it could very 
well lead to is standardized teaching to standardized tests, worksheets 
which are educationally deadening.

[[Page S9055]]

  I will tell you, in Minnesota, every year I read very carefully the 
profiles of the teachers of the year. Not a one uses those worksheets. 
They get kids or young people to connect themselves personally to what 
is being discussed in the classroom.
  I really worry about the direction we are heading in the name of 
reform. I also have quite a bit of sympathy with those who are saying 
to the White House and the administration, in all due respect, if you 
are going to talk about education and you find that people in the 
country are with you, if you are going to talk about each and every 
child should have the same opportunity to reach his or her full 
potential and people in the country are with you, and if you are going 
to talk about the need for us as a country to renew and reinvigorate 
our vow of equal opportunity for every child and you see that the 
people in the country are with you, well, then, do you know what? Make 
a commitment to do something about it.

  In all due respect, just to have some more tests doesn't do a whole 
lot. If you don't change the concerns and circumstances of children's 
lives, starting with more of a commitment to Head Start, then we 
already know who is going to fail those tests. We have a huge learning 
gap in this country. We know the children who are going to do well, and 
we know the children who are not going to do well. What good is it to 
just fail those children again this time on a test?
  If we don't make sure there is a commitment to Head Start and good 
child care so that children come to kindergarten ready to learn, and if 
we don't make a commitment to make sure these schools are inviting 
places for our children as opposed to being so dilapidated and dreary, 
investment in school infrastructure, of which we have done hardly 
anything, and if we don't make a commitment to making sure that these 
children have hope and have opportunity and that there is the necessary 
funding, then these tests don't do anything at l. They don't do 
anything at all. They amount to little more than a technical fix.
  (Ms. COLLINS assumed the Chair.)
  Mr. WELLSTONE. Madam President, on the other hand, I think that I 
will support this initiative. I have had a chance to talk with 
Secretary Riley. He is about as gentle a person as there is in 
Washington, DC. He is so committed to children, and I guess since it is 
voluntary and we are trying to develop good tests, it can't really hurt 
a lot. I guess it would represent a very small step forward and, as a 
college teacher for 20 years, I don't think I am prepared to just sort 
of say no, thumbs down.
  But I would like to say to the White House, I would like to say to 
the President and I would like to say to my party, the Democratic 
Party, we are going to have to do much better. We cannot say that a 
million children are going to be in Head Start and then not appropriate 
enough money to make sure that happens.
  We can't say that we are committed to equal opportunity for every 
child and not adequately fund Head Start and not adequately fund good 
developmental child care.
  We can't say that we are for children doing much better in the 
schools and not invest hardly anything. We have invested hardly 
anything in rebuilding crumbling schools all across America. We cannot 
make that case.
  If we are not willing to do what is necessary by way of changing the 
concerns and circumstances of children's lives before they go to school 
and when they go home and to make sure that these schools have the 
resources to work with and have the support services to work with, then 
these tests are just going to fail the same children who are already 
failing, in which case it is just absolutely outrageous.
  This amendment that I have offered isn't going to win. Maybe this is 
what you call a message amendment. But I am telling you something, just 
as Fannie Lou Hamer, the great civil rights leader, said, ``I'm sick 
and tired of being sick and tired.'' I get a little sick and tired of 
our not following through the words we speak with some investment. 
Everybody is for the children except when it comes to digging in the 
pocket and making the necessary investment. It doesn't seem to me to 
ask too much to say an additional $525 million to go into Head Start 
so, as the Head Start Association says, we can at least serve 1 million 
children.
  Madam President, I just want to make one other point, and then I will 
reserve the remainder of my time. Again, if I do this the wrong way, it 
is not going to come across well, and maybe a lot of Senators do this 
already. I am telling you, I have learned so much from traveling to 
communities around the country, just looking, learning from people who 
are in these struggles of trying to earn a decent living, trying to 
raise their children well, people struggling economically, looking at 
the poverty in this country and meeting women and men who should be 
heroines and heroes who are doing great work. It just reminds you of 
what being a U.S. Senator is all about.
  Today on the floor of the Senate, I am hoping, even if I don't win, 
to at least push this debate forward. I just get a little bit indignant 
that the sole focus becomes testing, and we don't put the money into 
early childhood development. We don't make sure children come to 
kindergarten ready to learn. We don't do much of anything about 
investing in crumbling schools. We don't do much of anything about the 
huge disparity in resources that different schools have to work with. 
We don't do much by way of encouraging the teachers.
  I will tell you something, some of the harshest critics of public 
schoolteachers couldn't last 1 hour in the classrooms they condemn. I 
am just asking my colleagues today to vote for a small transfer from 
the Pentagon budget to Head Start. There is no reason to spend a whole 
lot of more money on planes that can't fly in the snow or the rain. I 
think we can spend the money trying to provide help and support for 
children right here in our own country.
  Madam President, I reserve the remainder of my time.
  The PRESIDING OFFICER. Who yields time? If neither side yield time, 
time will be charged equally against both sides.
  Mr. WELLSTONE. Madam President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator from Minnesota has 10 minutes and 
45 seconds remaining.
  Mr. WELLSTONE. I thank the Chair.
  Madam President, while I am waiting, just some facts by the National 
Commission on Children.
  The first 3 years of a child's life are a time of unparalleled 
development: physical, intellectual, linguistic, social, and emotional.
  I do not need to use a commission. Let me use my expertise as a 
grandpa. I mean, we know this as parents and grandparents. We know now 
what all of this scientific evidence tells us, which is, these early 
years are critical years. You have to get it right for children. In 
fact, if we don't get it right for children in our country, all these 
children--they are all God's children--then by age 3 many of them may 
never be ready for school or never ready for life.
  The fact of the matter is, I am just saying, take $500 million for 
Head Start and at least make sure we cover 1 million children. If we 
were to consider not just the 4- to 5-year-olds, but the 3-year-olds 
and the 2-year-olds and the 1-year-olds, where it is probably even more 
important they get that additional help and families that additional 
support--we are covering maybe 15, 18, 20 percent of the overall number 
of children that need this help.
  I find it very difficult, frankly, to explain, why don't we fully 
fund the Head Start program? If we are going to argue the Head Start 
program gives children--special children; all children--a special head 
start, and we are going to argue we know these are the critical years, 
then why in the world are we not investing the money? Why are we not 
matching our rhetoric with the resources?
  Madam President, I will say it one more time, and then I will reserve 
the balance of my time. It is just on a personal note. I love the work 
that the

[[Page S9056]]

men and women and women and men in Head Start are doing.
  Thank you for your work in eastern Kentucky, thank you for your work 
in Chicago, in Minnesota, thank you for your work in delta Mississippi; 
and I am sure it would apply to Maine and every other State in the 
country.
  There is nothing more important you can do, because I just tell you 
that when I spend time with my 20-month-old grandson, the youngest, 
Joshua, I can't believe it--I have said on the floor before--every 5 or 
10 seconds he is interested in something new. We are not, but these 
children are. They are experiencing all the unnamed magic of the world 
that is before them.
  You can take that spark of learning, and you can ignite it. And if 
you ignite it in our Head Start programs--some of them do that; many of 
them do that--then you can take a child from any background to a life 
of creativity and accomplishment, or you can pour cold water on that 
spark of learning. And we do that to too many children.
  In the State of Minnesota we could do so much more. We cover 9,000 
out of 25,000 eligible children in Minnesota--9,000 out of 25,000.
  Madam President, this is unacceptable. This is unacceptable. We 
cannot keep saying that we are for the children, we cannot keep saying 
we are for equal opportunity for every child, we cannot keep saying we 
are for education, Democrats we cannot keep saying we are for expanding 
opportunities and just focus on testing. We have to do much more.
  Where is the investment to rebuild the crumbling schools all across 
the country? Where is the investment in Head Start? Where is the 
investment in early childhood development? Where is the investment in 
making sure that standards are met and that all of the children that 
are in our child care, whether they be centers or whether they be 
family child care or home-based child care, that standards are met and 
children are safe and children are receiving not custodial but 
developmental care? Where are the standards? Where are the resources? 
Where is the commitment?
  I do not know if anybody is going to debate me today on this. My 
guess is it would be just to table the amendment or a point of order. 
But I would like to debate colleagues, whether they be Democrats or 
Republicans, about why it is we can't do better.
  We just had this budget agreement. And everybody said that the budget 
agreement was so successful in dealing with the budget deficit. What 
about the spiritual deficit? What about the children deficit? What 
about the education deficit? What about the community deficit? We have 
not dealt with any of those deficits.
  I just suggest that if we cannot put a little bit more money, at 
least into Head Start as a start, then we are not doing as good as we 
could be doing for children in this Nation.
  Now, I grant you, the children who we are talking about in Head 
Start, these are children that are low income, these are children whose 
mothers and fathers do not have much by way of economic resources, and 
they do not have much by way of economic or political clout, but we 
ought to do better.
  I reserve the balance of my time.
  The PRESIDING OFFICER. Who yields time?
  If time is not yielded, it will be charged equally against both 
sides.
  Mr. HARKIN. Madam President, I rise in support of the amendment 
offered by the Senator from Minnesota.
  The Senator's amendment is simple. It would shift $525 from the 
Pentagon budget to Head Start, a very worthy program under the Labor, 
Health and Human Services, and Education appropriations bill. The 
amendment does not specify where in the Pentagon budget the funds would 
come from, we leave that for a later time and for input from our 
military leaders.
  The first National Education Goal states that by the year 2000, all 
children will start school ready to learn. Earlier this year, 
scientific research provided irrefutable evidence that the best way to 
achieve this goal was in a child's first three years of life.
  The release of this research was followed by a White House 
conference, television specials, magazine articles and a lot of talk 
about the need to improve activities to promote the development and 
education of young children.
  The pending legislation made some very modest efforts to seize the 
momentum created by these activities, but were limited by the 
constraints of the budget agreement. The bill does make some 
improvements, such as:
  Head Start is increased by $324 million with 10 percent dedicated to 
the Early Head Start program. This action doubles the set-aside for the 
programs which serve children up to the age of three.
  The early intervention program for infants and toddlers with 
disabilities is increased by 11 percent to $351 million.
  The National Institute of Child Health and Human Development is 
directed to examine the quality of child care funded by federal 
resources to determine to what extent recent research on the brain 
development of young children is being applied by recipients.
  In addition, the bill provides more resources for other programs to 
enhance the education and development of young children such as the 
Parents as Teachers Program, child care block grant and the Healthy 
Start Program.
  While I am pleased with these investments in the education of young 
children and appreciate Senator Specter's support, however, we need to 
do more--much more.
  That's why I am pleased to support Senator Wellstone's amendment to 
provide additional funding for Head Start. At the present time, Head 
Start is serving only a fraction of the number of children eligible for 
these services. The additional funding would expand the number of 
children receiving the education and health services that will enable 
them to start school ready to learn.
  The key to our economic security requires a well-educated, highly 
skilled and healthy work force and the strong foundation for this 
skilled work force is formed during the first years of a child's life. 
To achieve this goal however, it is critical that children start school 
ready to learn so that they will leave school able to earn.
  The amendment would reduce funds for the Department of Defense so I 
would like to take a few moments talking about the Pentagon spending.
  A perfect example of unnecessary spending is the plan by the other 
body to spend $331 million for additional B-2 bombers. The Department 
of Defense has spent $44.4 billion to develop and purchase 21 planes. 
Now B-2 bomber advocates want to purchase an additional 20 planes at a 
cost of $35.9 billion for procurement and operations. This works out to 
more than $1.7 billion per plane. In fact, this means that the B-2 
bomber costs more than three times its weight in gold. Both the House 
Defense authorization and Defense appropriations bills include $331 
million as a down payment for an additional nine planes, with the hopes 
of building even more later on.
  The list of folks who oppose additional B-2 bombers has become 
noteworthy. The Air Force doesn't want more B-2 bombers. This has been 
well know for quite some time. Now, other parts of the defense 
establishment oppose additional planes. In August, Defense News--hardly 
a bastion of the liberal press--published an editorial entitled, ``Time 
to Pause on B-2.'' To quote the editorial, ``the U.S. House of 
Representatives should pause for reflection before it takes one more 
step to resuscitate the B-2 bomber program and buy nine more planes.''
  I ask unanimous consent that the full text of the Defense News 
editorial be printed in the Record.
  There being no objection, the editorial was ordered to be printed in 
the Record, as follows:

                 [From Defense News, Aug. 11-17, 1997]

                          Time To Pause on B-2

       The U.S. House of Representatives should pause for 
     reflection before it takes one more step to resuscitate the 
     B-2 bomber program and buy nine more planes. The 
     extraordinary cost will far exceed the sticker price, 
     estimated at $1.4 billion per plane.
       The level of funding for defense during the next five to 10 
     years means that money for the planes would be taken from 
     other weapon systems, such as the V-22 tiltrotor aircraft, 
     the Comanche helicopter and various warships. It probably 
     would adversely affect theater missile defense projects, a 
     top national security priority, and even the purchase of 
     basic munitions for operational units.
       That is a lot to pay for a bomber the Air Force says is not 
     a top priority.
       In addition, serious questions recently have been raised 
     about the viability of the

[[Page S9057]]

     airplane itself. In a preliminary report, the Pentagon's 
     director of operational testing concludes that only 22 
     percent of the fleet is available to meet wartime 
     requirements when the B-2's low-observable systems are in 
     use.
       In addition, the amount of time spent on repair of the 
     airplane's radar-evading devices was found to be excessive.
       Though tentative, these are substantial criticisms because 
     the low-observable, or stealth, characteristics are central 
     to the value of the airplane.
       The Air Force paid a premium price for the B-2 because it 
     is supposed to be able to evade most radar systems.
       These and other conclusions in the report should prompt a 
     full-scale assessment of the B-2 fleet's readiness.
       The testing director's findings are preliminary. But they 
     are reason enough for the House to delay even initial funding 
     for an expensive airplane that may not work very well.

  Mr. HARKIN. Madam President, the latest bad news for the B-2 bomber 
program is a GAO report that describes some serious shortfalls with the 
planes stealth features. Specifically, the aircraft is more sensitive 
to climate and exposure than expected. The B-2 requires special 
shelters to maintain its stealthiness or prolonged exposure to the rain 
and other common weather problems can negate the planes' ability to 
avoid radar.
  This is not the first time that the B-2 bomber has faced problems 
with rain. Two years ago, we heard how the bomber's radar had trouble 
telling the difference between a rain cloud and a mountain.
  In fact, the Air Force hinted at the stealth problems back in 1990, 
when they sought approval for a series of special hangars for the B-2 
bomber at a cost of $4.7 million each. I am sure the cost has gone up 
in the past 7 years, but even then, the problem of maintaining the 
sensitive stealth skin of the B-2 bomber was talked about. And now the 
GAO has shed more light on the B-2 bomber stealth problems. According 
to the GAO, the B-2 bomber must be kept in shelters because of their 
sensitivity to moisture, water or other severe climatic conditions. 
Unless flown in only the most benign environments--low humidity, no 
precipitation, moderate temperature--the plane requires extensive 
maintenance or it will not be ready for use. I think modern warfare 
will included conditions that aren't exactly the most benign 
environment.
  Here is how some newspapers are now describing the bomber.

       The New York Times has said: ``The $2 billion Stealth 
     Bomber Can't Go out in the Rain.''
       The St. Peterburg Times used the headline: ``Not so 
     stealthy when wet.''
       And Robert Scheer of the Los Angeles Times said ``Let's 
     hope it rains on the B-2's parade.''

  No one disputes that the Cold War is now over, but some in this body 
would like to continue funding the Department of Defense as if it had 
never ended. The B-2 bomber is the perfect example of that view.
  The world today is not the world of 1985. True, there are dangers to 
the United States, but they are not the kind of dangers which justify a 
military budget that swallows discretionary spending and harms the very 
citizens it seeks to protect. They are not the kind of dangers that 
require more B-2 bombers at a price we cannot afford.
  Even with the elimination of the Soviet Union, our defense spending 
is still over 80 percent of United States cold war spending levels.
  The United States will spend nearly three times what any other 
country on the face of the Earth will spend on defense. In fact, if you 
added up the military expenses of all of Europe and South America 
combined, that is to say every country in Europe and South America 
together, you would find that the United States still out spends them 
on defense.
  I ask you Madam President, what is all of this money for? What enemy 
are we going to fight? Cuba, who spends less then 1 percent of our 
military budget? Or Lybia or Iraq or Iran or North Korea or Syria? Or 
are we spending $266 billion a year simply to have a large military.
  Let's look at some more figures. United States military spending is 
three times more than China, India, Pakistan, Russia, and Vietnam 
combined. It is more than double all of our NATO allies combined and it 
is larger than the next eight largest military budgets combined.
  As it stands now, such a large portion of our discretionary budget 
goes toward defense spending, that the security of our citizens is 
threatened. Yes, Madam President, you heard me correctly, they are 
threatened by increased defense spending. Why? Because every extra 
dollar we spend on defense is a dollar less for education, for putting 
police on the streets, for stopping the drug epidemic and feeding our 
children.
  The amount of discretionary funding spent on defense totals over 50 
percent of the discretionary budget. That means that the portion of the 
total budget that Congress actually decides where it will get spent, or 
the discretionary budget, goes overwhelmingly toward defense. For every 
discretionary dollar, 50 cents goes to defense. Not education, not 
health care for children, but defense.
  Every dollar we spend on defense has to come from somewhere. My 
question is, Where does the funds for defense come from? Does it mean 
one less school gets connected to the Internet? One more child can't 
read, or one more child goes hungry?
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. DOMENICI. Madam President, I assume I am recognized as being the 
person in opposition to the amendment.
  The PRESIDING OFFICER. The Senator is so recognized.
  Mr. DOMENICI. How much time do I have?
  The PRESIDING OFFICER. Sixteen minutes forty two seconds.
  Mr. DOMENICI. I surely will not use the entire time, and whatever 
time I do not use I will yield back.
  In a couple minutes I will make a point of order against the pending 
amendment. It is a clear violation of section 306 of the Congressional 
Budget Act. I understand the sponsor of the amendment will move to 
waive the point of order, and I in no way want to infringe upon that 
privilege.
  Let me just say this is a very simple proposition. Everybody should 
understand that in the budget agreement there were a lot of priority 
items. That meant, literally, that the Congress and the President 
agreed that certain programs would be funded at the President's 
request.
  Anyway, it is pretty interesting because we indeed funded Head Start 
at the exact amount the President asked for in his budget. Head Start 
funding is increased substantially in this bill, $324 million above the 
1997 level for total funding of $4.3 billion.
  It just seems like enough is never enough, despite the fact that we 
adopted the President's request and increased funding for Head Start 
$324 million over last year.
  My good friend, Senator Wellstone, wants to add an additional $525 
million. Now, you understand I am not that quick with arithmetic, but 
$525 million versus an already existing increase of $324 does permit 
one to wonder what is the reason for this vote. It seems like it is a 
vote to vote, because we have already increased Head Start dramatically 
and in fact provided for this program exactly what the President 
requested.
  Having said that, for those who are concerned about military 
spending, and there are many, we are struggling mightily on various 
defense measures that we are hoping the President will sign, and the 
arguments are essentially over money. What we have agreed on with the 
President in the bipartisan budget agreement is that we will provide a 
certain amount of money for all of defense. Then we say for the next 2 
years you cannot spend any defense money for domestic programs. That is 
called a wall between defense and domestic spending.
  When we did not have this wall between defense and domestic spending, 
defense never knew how much money they would receive because they had 
to wait for the completion of all the appropriations bills to see if 
money would be transferred from defense to domestic spending.
  Again, Senator Wellstone did not want to confront the wall and tear 
it down so he went around it. He just established his amendment and 
then he said the amount appropriated for the Department of Defense 
shall be reduced by $525 million and the Head Start Act would be 
increased by the same

[[Page S9058]]

amount. However, his amendment would direct the Budget Committee not to 
show an increase in domestic spending so as not to bump up against the 
overall nondefense discretionary spending cap nor would it count 
against the committee and subcommittee allocations.
  Therein lies the Budget Act point of order. By directing the Budget 
Committee not to follow the scoring rules established by the 
Congressional Budget Act, the Wellstone amendment is subject to a 60 
vote point of order pursuant to section 306 of the Budget Act.
  Madam President, the pending amendment contains matter within the 
jurisdiction of the Committee on the Budget in that it provides that 
the spending associated with this amendment will not be counted against 
nondefense discretionary spending caps. I therefore raise a point of 
order against the amendment pursuant to section 306 of the 
Congressional Budget Act.
  Now, Madam President, I ask unanimous consent that I, prior to 
reading that and making that point of order, be deemed to have yielded 
back any time I have remaining.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. Could I be recognized for an observation, Madam 
President?
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DOMENICI. I understand Senator Wellstone has time and clearly we 
would not vote until he uses his time or the leadership agrees.
  The PRESIDING OFFICER. The time of Senator Wellstone has expired.
  Mr. DOMENICI. I do not intend to move ahead until the leadership has 
agreed on the time, and that Senator Wellstone be given time to make 
his waiver motion prior thereto. I hope that is the game plan we are 
operating under.
  I yield the floor.
  The PRESIDING OFFICER. Without objection, the amendment will be set 
aside temporarily.
  Mr. DOMENICI. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Madam President, what is the matter before the Senate?
  The PRESIDING OFFICER. There is no amendment currently pending.


                    Amendment No. 1116, As Modified

  Mr. KENNEDY. I see. Well, I understand from the discussion of the 
leaders that we will be addressing the sense-of-the-Senate resolution 
as proposed by Senator Daschle and cosponsored by myself.
  I send a modification to the desk on behalf of Senator Daschle to 
amendment No. 1116, a sense of the Senate regarding Pell grants and 
child literacy funding. The modification is technical and it has been 
cleared on the other side. I ask that it might be in order. If it is 
the desire of the Chair, I will withhold making that request for a 
moment or two.
  The PRESIDING OFFICER. Is the Senator seeking immediate consideration 
of the amendment, or is he merely seeking to modify the amendment?
  Mr. KENNEDY. I am merely seeking to modify it.
  The PRESIDING OFFICER. Without objection, the amendment is so 
modified.
  The amendment (No. 1116), as modified, is as follows:

       On page 61, after line 25, insert the following:
       Sec.   . (a) The Senate finds that--
       (1) Federal Pell Grants are a crucial source of college aid 
     for low- and middle-income students;
       (2) in addition to the increase in the maximum Federal Pell 
     Grant from $2,700 to $3,000, which will increase aid to more 
     than 3,000,000 low- and middle-income students, our Nation 
     should provide additional funds to help more than 250,000 
     independent and dependent students obtain crucial aid in 
     order to help the students obtain the education, training, or 
     retraining the students need to obtain good jobs;
       (3) our Nation needs to help children learn to read well in 
     fiscal year 1998, as 40 percent of the Nation's young 
     children cannot read at the basic level; and
       (4) the Bipartisan Budget Agreement includes a total 
     funding level for fiscal year 1998 of $7,600,000,000 for 
     Federal Pell Grants, and of $260,000,000 for a child literacy 
     initiative.
       (b) It is the sense of the Senate that prompt action should 
     be taken by the authorizing committee to--
       (1) make the change in the needs analysis for Federal Pell 
     Grants for independent and for dependent students; and
       (2) enact legislation and authorize funds needed to cover 
     the costs of the changes for a $260,000,000 child literacy 
     initiative.
       (c) It is the sense of the Senate that the maximum level 
     possible of fiscal year 1998 funding should be achieved in 
     the appropriations conference committee.

  Mr. COVERDELL addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the distinguished Senator 
from Georgia.
  Mr. COVERDELL. Mr. President, I ask unanimous consent that the 
pending business be set aside so that we might go to my amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 1098

  Mr. COVERDELL. Mr. President, I understand we have 10 minutes equally 
divided, and I would like to begin by thanking Senators Abraham, Levin, 
Harkin, and McConnell for joining me in the amendment. The amendment is 
in response to the E. coli problems we have experienced. The amendment 
calls for $5 million in funds to be distributed at the discretion of 
the Secretary of HHS, and there is no offset. CBO reports that there 
are no budgetary problems with this amendment. Its score would not 
result in a budget point of order.
  This amendment, the first section of the amendment provides funding 
for research on the development of improved medical treatment for 
patients infected with E. coli. The most vulnerable members of society 
susceptible to the chronic effects of E. coli infection are children 
and the elderly. Funding should focus on helping these individuals to 
recover fully.
  Another section provides funding to help detect and prevent 
colonization of E. coli in live cattle. Research should focus on 
determining the host-pathogen relationship between cattle and the E. 
coli microbe and explore which factors contribute to its incidence in 
cattle.
  Another section provides funding for the administration's food safety 
initiative, more directly for the important consumer education 
component. This national consumer education campaign on food safety 
represents a partnership between Government, industry and consumer 
groups. This is an important link in the food safety chain and a 
critical initiative endorsed last year by former U.S. Surgeon General 
C. Everett Koop, along with the U.S. Department of Agriculture, the 
Department of Health and Human Services and the U.S. Department of 
Education as well.
  Another section would implement a much needed study on the 
feasibility of irradiating raw red meat to eliminate the E. coli 
pathogen and to develop a consumer education program on the process of 
safety. Currently available for poultry products, irradiation is a 
proven method of confronting this disease, and its feasibility on red 
meat needs to be explored.
  Finally, a section requires the Department of Health and Human 
Services to contract with the National Academy of Sciences to determine 
the effectiveness of the U.S. Department of Agriculture's zero 
tolerance standard for E. coli in raw ground beef products and the 
effectiveness of its current microbiological testing program. An 
updated report on this testing will be helpful to the Congress, the 
U.S. Department of Agriculture, consumers and the industry in their 
search for tools to effectively identify and irradiate E. coli in raw 
ground beef products.
  Mr. President, this is a very good amendment. It is directed at the 
long-term and short-term health of every American, and I urge my 
colleagues to support it.
  Mr. President, I yield the floor and ask how much time is remaining.
  The PRESIDING OFFICER. The Senator has used about 3\1/2\ minutes.
  Mr. COVERDELL. I reserve the remainder of my time.
  Mr. McCAIN addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the distinguished Senator 
from Arizona.
  Mr. McCAIN. I heard the distinguished Senator from Georgia say that 
this $5 million would be spent at the discretion of the Secretary. Is 
that correct?

[[Page S9059]]

  Mr. COVERDELL. That is correct.
  Mr. McCAIN. Does that not mean then that the language of the 
amendment would be changed to say, on line 4, ``of Health and Human 
Services may carry out activities'' and then on line 9 would say, ``The 
Secretary of Health and Human Services may carry out the following''? 
Would that not be the change that would provide this to be done at the 
discretion of the Secretary, because presently the copy of the 
amendment I have says ``shall,'' which does not provide discretion for 
the Secretary. It just says ``shall.''
  Mr. COVERDELL. It does not have to. She doesn't have the discretion 
not to spend it. They are directed to perform these activities.
  Mr. McCAIN. OK. Then the fact is it is not at the discretion of the 
Secretary when it says ``shall.'' The reality is that when it says 
``shall'' in the amendment, it means there is no discretion involved.
  In fact, $1 million goes to Atlanta, GA, is exactly what this 
amendment means. The Senator from Georgia knows very well that I have 
for 11 years opposed this kind of earmarking, and I intend to oppose it 
now. But let us not have the Senate be deceived by what the Senator 
from Georgia just said. The discretion of the Secretary is not the 
case. There is no discretion when the amendment says ``shall.''
  If the Senator from Georgia would be willing to change that word to 
``may,'' then I would be more than happy not only to agree with the 
amendment but support it. The fact is that now it means that $1 million 
to fund ongoing research to detect E. coli, or prevent E. coli in live 
cattle only goes to one place and that happens to be, by coincidence, 
in Atlanta, GA, which is something I strongly object to. If this kind 
of practice goes on and continues, we will see the unbridled earmarking 
of funds for specific projects in specific places, which the American 
people rejected in concept. There is an authorization process and there 
is an appropriations process. This meets neither one of those criteria.

  I understand that the Senator from Georgia will carry this amendment 
overwhelmingly. I also support the research for detection and 
prevention of E. coli and infections. It is a worthy cause. There is a 
system and procedure that we go through, which the Senator from Georgia 
is violating grossly with this amendment, and therefore I will ask for 
a rollcall on this amendment. I fully expect it to carry overwhelmingly 
in his favor, but I wanted the Senator to know that I am deeply 
disappointed that he will not change the language of this amendment to 
the proper form which is ``may'' rather than ``shall.''
  So, Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Georgia.
  Mr. COVERDELL. We do have a management problem here.
  The PRESIDING OFFICER. The Chair did not understand the Senator from 
Arizona to ask for a rollcall vote.
  Mr. COVERDELL. I think the Senator from Arizona is asking for the 
yeas and nays, for a rollcall vote at the appropriate time later in the 
day. I believe that is his motion.
  Mr. McCAIN. My motion is, Mr. President, that I ask for the yeas and 
nays now.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is not a sufficient second at the moment.
  Mr. McCAIN. Then 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. McCAIN. 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. McCAIN. Mr. President, I ask for the yeas and nays on this 
amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. McCAIN. Mr. President, I ask further unanimous consent that the 
yeas and nays be set aside until such time as the managers of the bill 
decide the sequence of the votes that will take place later this 
afternoon.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  Mr. COVERDELL addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Georgia.
  Mr. COVERDELL. 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. COVERDELL. Mr. President, in response to the good Senator from 
Arizona, I know he has been long an advocate of nonearmarking, but we 
just simply disagree on the substance of the amendment. There is no 
discretion about whether this research will be engaged in or the 
consumer studies, that is correct, but it is up to the discretion of 
the Secretary as to how and where that is funded. And that is the 
difference between us.
  The Senator is wrong in his assertion that $1 million of this would 
go to Atlanta, GA. It is possible that some of these funds would go to 
the University of Georgia, although it is not directed. The reason that 
it is possible, I would say probable, is that unbeknownst to me until 
very recently but long known in the industry, the University of Georgia 
has been among the several isolated universities that has advanced 
research on how to deal with E. coli in the live herds versus the 
contemporary process of trying to somehow spot this disease and 
irradiate it in the processing of the meat itself. Indeed, a discovery 
on this would be at the level of discovering penicillin, and it just 
happens that that research is highly advanced at this university at a 
time when this problem is such a focus of the attention of health 
concerns in the United States.
  Mr. HARKIN. Mr. President, I am pleased to cosponsor Senator 
Coverdell's amendment. Americans need to have the cleanest and safest 
meat and other foods. The emergency of E. coli:0157H7 is a real threat 
which we must quickly respond to. The Coverdell amendment provides 
funding to address this important issue.
  There are several ways to reduce E. coli and other microbial 
contamination and we need to take a multifaceted approach. More 
research is one of those. The new hazard analysis and critical control 
point inspection system will start to be implemented on January 1, 
1998. That will be a considerable benefit. I believe that an additional 
improvement that can be made is the use of electronic pasteurization. 
Through that means, we can kill a wide variety of pathogens that may 
come into accidental contact with foods with no downside to the 
consumer other than a very small cost.
  I would expect that the Department should coordinate its research 
efforts with USDA in those areas where the Department of Agriculture 
has expertise.
  I am hopeful that we will move along all of these paths in order to 
provide the safest and most reliable possible food supply.
  Mr. COVERDELL. Mr. President, I reserve the remainder of my time, if 
any is left.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BIDEN. 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. BIDEN. Mr. President, I ask unanimous consent that I be able to 
proceed for 15 minutes as if in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________