[Congressional Record Volume 143, Number 129 (Wednesday, September 24, 1997)]
[Senate]
[Page S9847]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                 CONSTITUTIONALITY OF MINING AMENDMENT

  Mr. BUMPERS. Madam President, I rise today because I believe the 
Senate set a terrible precedent last Thursday when it voted to uphold a 
point of order that was made against an amendment that Senator Gregg 
and I offered to H.R. 2107, the Interior appropriations bill. This 
amendment proposed to collect the royalty from hardrock mining 
operations on public land and a reclamation fee from hardrock mining 
operations on land that was patented pursuant to the 1872 mining law. 
The receipts collected from the royalty and reclamation fee would have 
been deposited in a trust fund to be used to reclaim abandoned hardrock 
mines in the West.
  Opponents of my amendment, in an attempt to prevent Senators from 
going on record in support of an effort to make the mining industry 
help pay for the environmental disasters it has created, raised a point 
of order arguing that the reclamation fee constituted a tax proposed by 
the Senate and thus the amendment violated the origination clause of 
the Constitution; that is, that all revenue measures must originate in 
the House. Unfortunately, the Senate voted to uphold the point of order 
even though the amendment was not even close to being unconstitutional.
  The Supreme Court has held on numerous occasions that while a tax 
provision may not originate in the Senate, a governmental fee can. ``A 
statute that creates a particular governmental program and that raises 
revenue to support that program, as opposed to a statute that raises 
revenue to support government generally, it is not a `bill for raising 
revenue' within the meaning of the origination clause.'' That is 
confirmed in United States versus Munoz-Florez. My amendment would have 
imposed a royalty and a fee in order to directly fund the reclamation 
of abandoned hardrock mines. It was not intended to raise revenues for 
the Treasury.
  In fact, Madam President, the Parliamentarian has already ruled that 
the reclamation fee provision does not constitute a tax when the 
Parliamentarian referred S. 326, which includes the very same 
reclamation fee proposal that I had, to the Senate Energy and Natural 
Resources Committee rather than the Finance Committee. The House 
Parliamentarian made the very same ruling when he referred the House 
companion to S. 326 to the House Natural Resources Committee rather 
than the Ways and Means Committee.
  I find it perplexing that anybody could argue that the amendment that 
Senator Gregg and I offered to the Interior appropriations bill could 
possibly constitute a tax. However, even if that were the case, it 
ought to be noted that the Interior appropriations bill originated in 
the House of Representatives in accordance with the origination clause 
of the Constitution. It does not matter that the amendment was offered 
in the Senate as long as the bill originated in the House. In Flint v. 
Stone Tracy Company, 220 U.S. 107 (1911), the Supreme Court ruled that 
legislation which created the tax on corporations complied with the 
origination clause even though the corporate tax was proposed by the 
Senate as a substitute to an inheritance tax that was included in the 
bill as reported by the House.
  The fact that H.R. 2107 was reported by the Appropriations Committee 
rather than the Finance Committee is not relevant. The Senate has in 
the past added an amendment which modified the Tax Code to an 
appropriations bill. For example, in 1982 the Senate added a provision 
to the supplemental appropriations bill which limited the availability 
of certain tax deductions for Members of Congress.
  Madam President, Senate rules do not permit the Parliamentarian to 
rule when a point of order is made against an amendment on 
constitutional grounds. If the Parliamentarian had been able to rule, 
the point of order would not have even been made and the decision would 
not have been close. Instead, the point of order was made with the 
knowledge that Senators would be able to defeat the Bumpers-Gregg 
amendment without actually going on record in support of allowing 
mining companies to continue acquiring billions of dollars worth of 
minerals from the taxpayers of this country without compensation and 
leaving those same taxpayers with environmental disasters to clean up.
  Mr. President, I yield the floor.
  Mr. JEFFORDS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. DeWine). The clerk will call the roll.
  The bill clerk proceeded to call the roll.

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