[Congressional Record Volume 143, Number 133 (Tuesday, September 30, 1997)]
[House]
[Pages H8216-H8229]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED 
                   AGENCIES APPROPRIATIONS ACT, 1998

  The SPEAKER pro tempore. Pursuant to House Resolution 239 and rule 
XXIII, the Chair declares the House in the Committee of the Whole House 
on the State of the Union for the further consideration of the bill, 
H.R. 2267.

                              {time}  1755


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the further consideration of 
the bill (H.R. 2267) making appropriations for the Departments of 
Commerce, Justice, and State, the Judiciary, and related agencies for 
the fiscal year ending September 30, 1998, with Mr. Hastings of 
Washington in the chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. When the Committee of the Whole House rose on Friday, 
September 26, 1997, amendment No. 16 by the gentleman from Georgia [Mr. 
Barr] had been disposed of and section 616 was open to further 
amendments.
  Are there further amendments to this section of the bill?
  Mr. ROGERS. Mr. Chairman, I move to strike the last word to discuss 
the evening schedule.
  Mr. Chairman, the first order of business on the consideration of 
this bill is the matter dealing with the census. Under the unanimous-
consent agreement of last week, debate time on this amendment was 
limited to 80 minutes.
  On this side of the aisle, I do not anticipate any extraneous 
motions, in which case, if the other side could agree to that, we could 
have 80 minutes where Members would be able to attend

[[Page H8217]]

to other business while the debate on this matter proceeds.
  I wonder if the gentleman from West Virginia [Mr. Mollohan] would 
like to discuss that. If so, I will yield.
  Mr. OBEY. Mr. Chairman, would the gentleman from Kentucky [Mr. 
Rogers] renew his motion? We could not hear it.
  Mr. ROGERS. I did not have a motion. What I had attempted to do was 
to try to explain to the Members that the first order of business now 
is the consideration of the census matter, which under the unanimous 
consent of last week, the debate time is limited to 80 minutes.
  If there are no extraneous motions intervening during that period of 
time on either side, Members can feel free to attend to other business 
during that period of time without fear of a vote.

                              {time}  1800

  I think I can assure the body that there will not be such motions on 
this side, and if we can have that assurance from that side, Members 
could have 80 minutes.
  Mr. OBEY. Mr. Chairman, will the gentleman yield?
  Mr. ROGERS. I yield to the gentleman from Wisconsin.
  Mr. OBEY. With all due respect, Mr. Chairman, I cannot give that 
assurance on this side because I intend to make one of the motions 
myself.


                   Amendment Offered by Mr. Mollohan

  Mr. MOLLOHAN. Mr. Chairman, I offer an amendment.
  The CHAIRMAN. The Clerk will designate the amendment.
  The text of the amendment is as follows:

       Part II amendment printed in House Report 105-264 offered 
     by Mr. Mollohan:
       In the first paragraph under ``DEPARTMENT OF COMMERCE--
     Bureau of the Census--periodic censuses and programs'' strike 
     ``Subject to the limitations provided in section 209, for'' 
     and insert ``For''.
       Strike section 209 and insert the following:
       Sec. 209. None of the funds made available in this Act for 
     fiscal year 1998 may be used by the Department of Commerce to 
     make irreversible plans or preparations for the use of 
     sampling or any other statistical method (including any 
     statistical adjustment) in taking the 2000 decennial census 
     of population for purposes of the apportionment of 
     Representatives in Congress among the States.
       Sec. 210. (a) There shall be established a board to be 
     known as the Board of Observers for a Fair and Accurate 
     Census (hereinafter in this section referred to as the 
     ``Board'').
       (b)(1) The function of the Board shall be to observe and 
     monitor all aspects of the preparation and implementation of 
     the 2000 decennial census (including all dress rehearsals) to 
     determine whether the process has been manipulated in any way 
     so as to bias the results in favor of any geographic region, 
     population group, or political party, or on any other basis.
       (2) In carrying out such function, the Board shall give 
     special attention to the design and implementation of any 
     sampling techniques and any statistical adjustments used in 
     determining the population for purposes of the apportionment 
     of Representatives in Congress among the several States.
       (3) The Board shall promptly report to the Congress and the 
     President evidence of any manipulation referred to in 
     paragraph (1).
       (c)(1) The Board shall be composed of 3 members as follows:
       (A) 1 individual appointed by the President.
       (B) 1 individual appointed jointly by the Speaker of the 
     House of Representatives and the President pro tempore of the 
     Senate.
       (C) The Comptroller General of the United States.

     The members appointed under subparagraphs (A) and (B), 
     respectively, shall be former Presidents or others of similar 
     stature.
       (2) Members shall not be entitled to any pay by reason of 
     their service on the Board, but shall receive travel 
     expenses, including per diem in lieu of subsistence, in 
     accordance with sections 5702 and 5703 of title 5, United 
     States Code.
       (d)(1) The Board shall have an Executive Director who shall 
     be appointed by the Board and paid at a rate not to exceed 
     level IV of the Executive Schedule.
       (2) The Board may appoint and fix the pay of such 
     additional personnel as it considers appropriate, subject to 
     the provisions of chapter 51 and subchapter III of chapter 53 
     of title 5, United States Code.
       (3) Subject to such rules as may be prescribed by the 
     Board, the Board may procure temporary and intermittent 
     services under section 3109(b) of such title 5, but at rates 
     for individuals not to exceed the daily equivalent of the 
     maximum annual rate of pay payable for grade GS-15 of the 
     General Schedule.
       (4)(A) Upon request of the Board, any personnel of an 
     agency under subparagraph (B) may be detailed to the Board, 
     on a reimbursable basis or otherwise, to assist the Board in 
     carrying out its duties.
       (B) The agencies under this subparagraph are the General 
     Accounting Office, the Congressional Research Service, and 
     the Congressional Budget Office.
       (e)(1) Notwithstanding any provision of title 13, United 
     States Code, or any other provision of law, members of the 
     Board and any members of the staff who may be designated by 
     the Board under this paragraph shall be granted access to any 
     data, files, information, or other matters maintained by the 
     Bureau of the Census (or received by it in the course of 
     conducting a decennial census of population) which they may 
     request, subject to such regulations as the Board may 
     prescribe in consultation with the Secretary of Commerce.
       (2) The regulations shall include provisions under which 
     individuals gaining access to any information or other matter 
     pursuant to paragraph (1) shall be subject to sections 9 and 
     214 of title 13, United States Code.
       (f) The Board shall transmit to the Congress and the 
     President--
       (1) interim reports, as least semiannually, with the first 
     such report due by August 1, 1998; and
       (2) a final report not later than August 1, 2001.

     The final report shall contain a detailed statement of the 
     findings and conclusions of the Board with respect to the 
     matters described in subsection (b), together with any 
     recommendations regarding future decennial censuses of 
     population.
       (g) Of the amounts appropriated to the Bureau of the Census 
     for each of fiscal years 1998 through 2001, $2,000,000 shall 
     be available to the Board to carry out this section.
       (h) To the extent practicable, members of the Board shall 
     work to promote the most accurate and complete census 
     possible by using their positions to publicize the need for 
     full and timely responses to census questionnaires.
       (i) The Board shall cease to exist on September 30, 2001.

  The CHAIRMAN. Pursuant to House Resolution 239, the gentleman from 
West Virginia [Mr. Mollohan] and a Member opposed will each control 40 
minutes.
  Who seeks time in opposition?
  Mr. HASTERT. I do, Mr. Chairman.
  The CHAIRMAN. The gentleman from Illinois [Mr. Hastert] will control 
40 minutes.
  The gentleman from West Virginia [Mr. Mollohan] is recognized for 40 
minutes.
  Mr. MOLLOHAN. Mr. Chairman, I yield myself such time as I may 
consume.
  Mr. Chairman, I rise to offer an amendment to the bill.
  I would first like to thank the distinguished chairman of the 
Committee on Rules, the gentleman from New York [Mr. Solomon], and the 
distinguished ranking member, the gentleman from Massachusetts [Mr. 
Moakley], for making the Mollohan-Shays amendment in order. It was the 
fair thing to do.
  Mr. Chairman, this is a bipartisan amendment offered jointly with my 
colleague from Connecticut [Mr. Shays]. I want to take this opportunity 
to thank him and the many other Members on both sides of the aisle, 
especially the gentleman from Ohio [Mr. Tom Sawyer] and the gentlewoman 
from New York [Mrs. Carol Maloney], who have worked so hard in support 
of this amendment.
  Mr. Chairman, the Constitution requires that we take a census of the 
entire population of the United States every 10 years. That means we 
count everyone, rich people, poor people, rural, urban, all races.
  We are increasingly having a problem doing this count accurately. The 
error rate skyrocketed in 1990 to include 26 million people with an 
undercount of 1.6 percent of the population, and if we do not do 
something, Mr. Chairman, it is estimated that in 2000 the undercount 
will continue to climb. That is a lot of men, women, and children that 
will be left out of our Nation's family, just left out, Mr. Chairman, a 
lot from the inner city, a lot of the very rural, a lot of poor folks 
just left out of the count.
  We can do something about this by building on sampling methods which 
have been a part of the census for the last 50 years. The Census Bureau 
wants to employ sampling, not only in this Democratic administration, 
but going back to President Bush's administration when Barbara Bryant, 
Republican appointed director of the 1990 census, started working to 
increase the use of sampling in the census. She says now, Mr. Chairman: 
``I am very much in favor of the plan the Census Bureau has. It builds 
work that I started on back in 1990.''
  Well, these plans and recommendation are good. It is also good that 
this bill contains $381 million to plan and

[[Page H8218]]

run tests next spring for what could be the most accurate census in our 
Nation's history.
  But there is a very bad provision in this bill, the Hastert 
substitute which calls for a constitutional review of sampling, and 
during that review, this provision kills sampling by prohibiting the 
Census Bureau from spending any money on sampling planning. If the 
Census Bureau cannot spend money planning for sampling, then we cannot 
use sampling in the 2000 census; it is just that simple.
  Now, Mr. Chairman, the amendment the gentleman from Connecticut [Mr. 
Shays] and I offer removes the Hastert prohibitions and replaces them 
with the most reasonable language contained in the Senate-passed bill 
which lets the Census Bureau test scientific sampling methods so long 
as they are not irreversible. And our amendment goes one step further. 
We propose to create a board of advisors for a fair and accurate 
census. This body would be made up of three individuals, one appointed 
by the President, one jointly appointed by the Speaker and the 
President pro tem of the Senate, and third, the Comptroller General. 
The first two appointments shall be former Presidents or men and women 
of similar stature. The main purpose of the board would be to observe 
and monitor all aspects of the preparation and the implementation of 
the 2000 census to assure the process is not in any way manipulated.
  Mr. Chairman, those who object to sampling use three main arguments 
which I think can be soundly refuted. In their first arguments, 
opponents of sampling cite the Constitution. They assert that the 
Constitution requires an actual head count of the population. However, 
separate opinions issued by the Department of Justice under Presidents 
Carter, Bush, and Clinton, bipartisan in nature, all concluded that the 
Constitution permits the use of sampling and statistical methods as a 
part of the census.
  Stuart M. Gerson, assistant attorney general, Civil Division, in the 
Bush administration, concluded in a July 1991 memorandum to the 
Commerce Department's attorney general that the meaning of the term 
``enumeration of the Constitution'' is, quote, more likely found in the 
accuracy of census-taking than in the selection of any particular 
method. Continuing, he says, nothing indicates any additional intent on 
the part of the Framers to restrict for any time, for all time, the 
manner in which the census is conducted, end of quote.
  Additionally, on this issue of constitutionality of sampling, Mr. 
Chairman, Federal courts have uniformly upheld the use of sampling. For 
example, in the City of New York v. Department of Commerce, a 1990 
case, the court concluded that, quote, because article 1, clause 2, 
requires the census to be as accurate as practicable, the Constitution 
is not, is not, a bar to statistical adjustment.
  In their second argument, Mr. Chairman, opponents of sampling say 
that it is bad science. Quite the opposite. The experts and 
statisticians disagree. After the 1990 census, the Congress asked, 
because of the bad count, the Congress asked the National Academy of 
Sciences what could be done to make sure that every person in our 
country is counted in the 2000 census, unlike the 1990 census. And the 
National Academy of Sciences recommended sampling, a greater use of 
sophisticated sampling techniques.
  Further, the National Research Council, the American Statistical 
Association, and the General Accounting Office all have endorsed the 
use of sampling, the increased use of sampling, in the census.
  Barbara Bryant, again, census director under none other than 
President Bush, had the following to say in a recent letter to Speaker 
Newt Gingrich:
  In the long run, our Nation is best served by accuracy. Sample 
surveys to estimate those who will not or cannot be counted in the 2000 
census after the Census Bureau has made every reasonable and good-faith 
effort to voluntarily enumerate them will increase the accuracy of the 
census.
  Mr. Chairman, in their third argument, opponents of sampling say that 
the Commerce Department will politicize the results of the census. 
While I do not in any way share this view, its nature makes it 
impossible to refute through fact or expert opinion. It can only be 
refuted through a guarantee of careful oversight, and that is precisely 
what the Mollohan-Shays amendment does with the board of advisers for a 
fair and accurate census; it assures oversight.
  Mr. Chairman, having refuted the three most used arguments against 
sampling, only one remains: Fear, the fear that using sampling will 
affect the political makeup of the House of Representatives. The real 
manipulation going on today is the Republicans' majority attempt to 
control funding to prevent the Census Bureau from using the one 
technique all the experts say will yield the most accurate census. And 
why are they doing this? By their words, it is, they indicate, that it 
is because they are afraid of what will happen if every person in this 
country is counted, afraid they may lose seats in the Congress. I do 
not agree with that view. It is a false fear.
  But in any event, let me remind my colleagues that the purpose of the 
census is to count the people of our Nation, not to ensure that any 
political party controls the Congress. We should strive toward accuracy 
and let the political chips fall where they may. To quote the recent 
commentary in a Business Week magazine, Census 2000, Math, Not 
Politics, Please, end of quote.
  Mr. Chairman, I would like to close by reaching out to my Republican 
colleagues, perhaps some from States that had a large undercount in the 
1990 census. We cannot pass this amendment without them. Join us in 
fashioning a census where we count all women, all men, and all 
children, where we do not leave out four or five or six million inner 
city, rural, and poor folks. Let us take advantage of this historic 
opportunity in a bipartisan way to have the best census ever.
  Vote for the Mollohan-Shays amendment.
  Following are excerpts from decisions of several Federal courts which 
have considered the issue of the constitutionality and legality of use 
of sampling and statistical adjustment in the census, and from legal 
memoranda by senior Justice Department officials from both Republican 
and Democratic administrations.

       United States Court of Appeals for the Sixth Circuit: 
     ``Although the Constitution prohibits subterfuge in 
     adjustment of census figures for purposes of redistricting, 
     it does not constrain adjustment of census figures if 
     thoroughly documented and applied in a systematic manner.''

     Young v. Klutznik, 652 F.2d 617, 625 (6th Cir. 1981)
                                  ____
                                  
       United States District Court for the Eastern District of 
     New York: ``This Court concludes that because Article I, 
     section 2 requires the census to be as accurate as 
     practicable, the Constitution is not a bar to statistical 
     adjustment.''

     City of New York v. U.S. Dept. of Commerce, 739 F.Supp. 761, 
     767 (E.D.N.Y. 1990)
                                  ____
                                  
       United States District Court for the Southern District of 
     New York: ``It appears to the Court that this language [in 
     the Constitution] indicates an intent that apportionment be 
     based on a census that most accurately reflects the true 
     population of each state.''
                                  ____
                                  
       ``Consequently, the Court finds defendants' constitutional 
     and statutory objections concerning the impropriety of 
     employing statistical adjustments to compensate for the 
     undercount without merit.''

     Carey v. Klutznik, 508 F.Supp. 404, 415 (S.D.N.Y. 1980)
                                  ____
                                  
       United States District Court for the Eastern District of 
     Michigan: ``It is unthinkable to suggest, that, when the 
     allocation of federal resources and the apportionment of 
     Congressional Representatives rest upon an accurate census 
     count, and when the Census Bureau itself knows that there is 
     an undercount, which heavily disfavors Blacks and minorities, 
     and when a method can be found to correct that undercount, 
     that the words `actual enumeration' in the Constitution 
     prevent an adjustment to obtain a more accurate figure than 
     the actual headcount.''

     Young  v. Klutznik, 497 F.Supp. 1318, 1333 (E.D. Mich 1980)
                                                                    ____

       United States District Court for the Eastern District of 
     Pennsylvania: ``It may be that today an actual headcount 
     cannot hope to be an accurate reflection of either the size 
     or distribution of the Nation's population. If so, it is 
     inconceivable that the Constitution would require the 
     continued use of a headcount in counting the population. 
     Therefore, the Court holds that the Constitution permits the 
     Congress to direct or permit the use of statistical 
     adjustment factors in arriving at the final census results 
     used in reapportionment.''

     City of Philadelphia v. Klutznick, 503 F.Supp. 663, 679 
     (E.D.Pa. 1980) (emphasis in original)
                                                                    ____

       United States Court of Appeals for the Second Circuit: 
     ``Reading sections 141 and 195 [of

[[Page H8219]]

     the Census Act] together in light of their legislative 
     history, we conclude that Congress intended the Secretary (a) 
     to conduct an actual enumeration as part of the decennial 
     census, and (b) in lieu of a `total' enumeration to use 
     sampling and special surveys `whenever possible'. 
     Accordingly, we conclude that a statistical adjustment to the 
     initial enumeration is not barred by the Census Act and 
     indeed was meant to be encouraged.''

     City of New York v. U.S. Department of Commerce, 34 F.3d 
     1114, 1125 (2d Cir 1994) (citations omitted)
                                                                    ____

       Stuart Gerson, Assistant Attorney General (Civil Division) 
     in the Bush Administration (Legal Opinion for Commerce Dept., 
     July 9, 1991): ``Though the conclusion is not entirely free 
     from doubt, it does appear the Constitution would permit a 
     statistical adjustment if it would contribute to an accurate 
     population count.''
                                                                    ____

       Stuart Gerson, Assistant Attorney General (Civil Division) 
     in the Bush Administration, (Legal Opinion for Commerce 
     Dept., July 9, 1991): ``By directing the conduct of an 
     `actual Enumeration' for use in subsequent congressional 
     apportionments, the Framers replaced the `conjectural ratio' 
     used in the initial apportionment, with a more permanent and 
     precise standard. Nothing in the constitutional debates or 
     any other historical records, insofar as we are aware, 
     indicates any additional intent on the part of the framers to 
     restrict for all time--except by constitutional amendment--
     the manner in which the census is conducted. Rather, the 
     thrust of the `actual Enumeration' language appears to be 
     simply that the decennial census should represent an accurate 
     counting of the population `in such manner as [the Congress] 
     shall by Law direct'.''

                           *   *   *   *   *

       ``In sum, the essence of enumeration, as the term is both 
     generally and constitutionally understood, is more likely 
     found in the accuracy of census taking rather than in the 
     selection of any particular method, i.e., a headcount.''
                                                                    ____

       Walter Dellinger, Assistant Attorney General in the Clinton 
     Administration (Memorandum for the Solicitor General, Oct. 7, 
     1994): ``Accordingly, we conclude that the Constitution does 
     not preclude the [Census] Bureau from employing technically 
     and administratively feasible adjustment techniques to 
     correct undercounting in the next decennial census.''
                                                                    ____

       Walter Dellinger, Assistant Attorney General in the Clinton 
     Administration (Memorandum for the Solicitor General, Oct. 7, 
     1994): ``These discussions [at the constitutional convention] 
     make clear that, in requiring an `actual' enumeration, the 
     Framers meant a set of figures that was not a matter of 
     conjecture and compromise, such as the figures they had 
     themselves provisionally assumed. An `actual' enumeration 
     would instead be based, as George Mason put it, on `some 
     permanent and precise standard'. There is no indication that 
     the Framers insisted that Congress adopt a `headcount' as the 
     sole method for carrying out the enumeration, even if later 
     refinements in the metric of populations would produce more 
     accurate measures.''
                                                                    ____

       John M. Harmon, Asst. Attorney General (Office of Legal 
     Counsel) in the Carter Administration, (Memorandum dated 
     Sept. 25, 1980): ``In sum, the position that the Constitution 
     prohibits any statistical adjustment is not supportable--not 
     as a matter of semantics, Framers' intent, or Supreme Court 
     case law.''
                                 ______
                                 
  


 The American Statistical Association Report of the Census Blue Ribbon 
                                 Panel


                           executive summary

       In order to improve the accuracy and to constrain the costs 
     of the Decennial Census for the year 2000 the Census Bureau 
     is planning to make increased use of scientific sampling when 
     conducting the Census. Critics have questioned the Bureau's 
     intent to make greater use of sampling. Their criticism may 
     be based upon a misunderstanding of the scientific basis of 
     the Census Bureau's sampling plans. The President of the 
     American Statistical Association appointed this panel and 
     charged it with considering this aspect of the Bureau's plans 
     and the criticisms of them. In our statement, we point out 
     that sampling is an integral part of the scientific 
     discipline of statistics and explain how its use can be an 
     appropriate part of the methodology for conducting censuses.
       Congress directed the Bureau of the Census to develop plans 
     for the 2000 Decennial Census that (1) reduce the undercount, 
     particularly the differential in the undercount across 
     population groups, and (2) constrain the growth of costs. 
     Because sampling potentially can increase the accuracy of the 
     count while reducing costs, the Census Bureau has responded 
     to the Congressional mandate by investigating the increased 
     use of sampling. An additional benefit of sampling is that 
     its appropriate use can also reduce the response burden on 
     the population. We endorse the use of sampling for these 
     purposes; it is consistent with best statistical practice.


                               background

       The Bureau of the Census is planning to improve coverage 
     and constrain the costs of the Decennial Census for the year 
     2000 by making greater use of scientific sampling. Sampling 
     is not new to the Census; it has been used for decades in 
     compiling the Census. The Census Bureau has employed sampling 
     to monitor and improve the quality of interviewers' work, to 
     reduce respondent burden by asking some questions of only a 
     sample of households, to estimate the number of vacant 
     housing units, and to evaluate the completeness of the 
     Census's coverage of the population. In addition, for the 
     year 2000, the Census Bureau's plans include sampling 
     households that do not respond to the mail questionnaire and 
     are not reached in initial interviewer follow-up. This is a 
     procedure known as sampling for ``non-response follow-up.'' 
     The Census Bureau also plans to use sampling to account for 
     the remaining small percentage of households that cannot be 
     counted in the enumeration. This procedure is referred to as 
     ``integrated coverage measurement.'' This increased use of 
     sampling has been criticized; however, we believe the critics 
     may have misunderstood the scientific basis of the Census 
     Bureau's sampling plans.
       Plans for the 2000 Census have been developed in response 
     to a dual Congressional mandate to the Bureau. First, the 
     Census Bureau is charged with improving the population count 
     by reducing the undercount (which increased from 1.2% of the 
     population in 1980 to 1.8% of the population in 1990) and, in 
     particular, with reducing or eliminating the differentially 
     higher undercount of some groups, such as Africa-Americans 
     and Hispanics. Second, the Census Bureau is charged with 
     constraining the cost of the 2000 Census (census costs 
     escalated sharply between 1970 and 1990, even after allowing 
     for inflation and population growth). In carrying out this 
     dual mandate from the Congress, the Census Bureau has 
     considered a variety of procedural and technical improvements 
     to the 2000 Census and has developed plans to use sampling 
     for non-response follow-up and for integrated coverage 
     measurement. The Bureau has also created and consulted with a 
     number of advisory groups and has sought the advice of 
     several National Academy of Science panels.
       As the Decennial Census draws nearer, Congress has been 
     monitoring the Bureau's planning process more closely. The 
     Bureau's proposed additional uses of sampling have created 
     some controversy within Congress. Several recent actions, as 
     well as proposed legislation, would affect the Bureau's 
     ability to use sampling in the 2000 Census.
       Two bills have been introduced in Congress that would 
     restrict the role of sampling in the 2000 Census. One bill, 
     HR3558, sponsored by Congresswoman Carrie Meek (D-Florida), 
     states that ``the Bureau shall attempt to contact every 
     household directly (whether by mail or in person), and may 
     use sampling as a substitute for direct contact in a 
     particular census tract only after direct contact has been 
     made with at least 90 percent of the households in such 
     tract.'' This bill reflects concern about the Census 
     Bureau's proposed plan to begin the use of sampling for 
     non-response follow-up when 90 percent of the households 
     have been enumerated in each county (counties are usually 
     larger and more diverse geographic areas than are census 
     tracts). The other bill, HR3589, sponsored by Congressman 
     Thomas Petri (R-Wisconsin), states that Title 13 of the 
     U.S. Code shall be amended to add the following: ``In no 
     event may sampling or other statistical procedures be used 
     in determining the total population by states . . . for 
     purposes of the apportionment of Representatives in 
     Congress among the several States.'' This bill would 
     prohibit the use of any sampling to determine population 
     counts used for congressional apportionment. This 
     effectively prevents the use of sampling for any purpose 
     other than collection of demographic or economic data 
     through the ``long form.''
       In June, the House Committee on Government Reform and 
     Oversight prepared a report that recommended against sampling 
     in the Census either to complete the field work or to correct 
     the undercount. The committee has not yet considered or voted 
     on the report. In early August, the Senate Committee on 
     Appropriations approved a report to accompany the Fiscal Year 
     1997 Commerce Department funding bill that would prohibit the 
     Census Bureau from preparing to use sampling in the Decennial 
     Census. The full Senate is expected to consider the bill in 
     September.
       This statement has been composed by a panel appointed by 
     the President of the American Statistical Association to 
     consider the Census Bureau's plans to increase the use of 
     sampling in the conduct of the next Census. The purpose of 
     this statement is to point out that sampling is an integral 
     part of the scientific discipline of statistics and to 
     explain briefly how its use can be an appropriate part of the 
     methodology for conducting censuses.


                               statement

     Uses of and the Scientific Basis for Sampling
       Sampling is used widely in science, medicine, government, 
     agriculture, and business because it is the fundamental basis 
     for addressing specific questions in these arenas. Sampling 
     is a critical tool for reducing uncertainty; it is possible 
     to draw conclusions from a scientific sample of empirical 
     observations with specific levels of confidence in our 
     conclusions. Statistics, a branch of applied mathematics, is 
     a rigorous discipline based upon centuries of development of 
     the principles of probability and the empirical study of 
     their applications. The use of sampling combined with the 
     mathematics of

[[Page H8220]]

     probability provide the basis for drawing scientific 
     inferences from observations. Without this basis, confirming 
     or rejecting scientific theories would be impossible.
       Specific areas that use statistical sampling extensively 
     include auditing, market research, quality assurance, 
     approving new drugs, and medical testing. For example, 
     physicians use a sample of blood drawn from a patient to draw 
     conclusions about all the blood in the patient's body. A full 
     census of a patient's blood is not possible, and a small 
     sample is fully adequate to measure the concentration of a 
     specific chemical in the patient's blood system. Sampling 
     permits observations to be made efficiently, economically, 
     and fairly. Without sampling, we would not have quality 
     control in our industries, soil testing in agriculture, or 
     most of the national statistics on which the nation depends. 
     Well-designed samples are used to draw accurate conclusions 
     in many applications. The specific design of a sample in a 
     particular setting depends on the particular problem being 
     addressed. In complex situations such as the census, the 
     detailed sample designs require careful analysis by people 
     skilled and experienced in census taking.
     Using Sampling to Improve the Population Count
       The appropriate use of sampling can improve the count of a 
     population. The basic idea underlying this conclusion is that 
     some parts of the population will be easier to count and some 
     more difficult. After an effort has been made to reach all 
     households, some number of households will not have been 
     reached; little is known about these households. Well-
     designed sampling to obtain information about them can reduce 
     what would otherwise be a differential undercount between the 
     easier to count and harder to count groups in the population. 
     The attachment to this statement briefly explains the 
     underlying logic of how sampling can improve population 
     counts and also reduce costs.
       In fact, every census is, in some sense, a sample, since 
     everyone cannot be reached. Some countries, more 
     authoritarian than ours, have ordered all people to remain in 
     their homes all day on Census Day until the police or the 
     army have come to count them. In democratic countries, 
     however, everyone cannot be reached and counted. Those who 
     have been counted amount to a sample of the total population, 
     but this is not a sample based on probability theory because 
     the reasons for missing information in the census are not 
     understood. A probability based sample design, as planned 
     by the Census Bureau, permits inferences to be drawn about 
     the entire population with a specified level of 
     confidence. The discipline of statistics largely focuses 
     on reducing uncertainty through the use of sampling and 
     other statistical techniques that permit inferences to be 
     drawn about those missing in a sample. Thus, scientific 
     probability sampling is broadly applicable to census 
     taking.
       In addition, sampling can reduce the burden on respondents 
     to the census. Just as it is not necessary to impose on the 
     medical patient the burden of withdrawing all the blood to 
     measure the platelet count, it is not necessary to count 
     every household and every person in the country in order to 
     draw conclusions about the country. Careful design and 
     execution of probability sampling can permit samples to 
     generate data and precise inferences in which we can have 
     considerable confidence. Indeed, the ability to employ 
     sampling is perhaps the single most important element in the 
     government's effort to reduce the burden it imposes on the 
     population from which it collects statistics.
     Conclusion
       Congress directed the Bureau of the Census to develop plans 
     for the 2000 Decennial Census that (1) reduce the undercount 
     particularly the differential in the undercount across 
     population groups, and (2) constrain the growth of costs. 
     Because sampling has the potential to increase the quality 
     and accuracy of the count and reduce costs, the Census Bureau 
     has responded to the Congressional mandate by investigating 
     the increased use of sampling. An additional benefit of 
     sampling is that its appropriate use can also reduce the 
     response burden on the population. The use of sampling for 
     these purposes is consistent with sound statistical practice.
                                 ______
                                 
                                   Congressional Research Service,


                                          Library of Congress,

                               Washington, DC, September 29, 1997.

     To: Honorable Carolyn B. Maloney, Attention: David McMillen
     From: American Law Division
     Subject: Questions re Legislative Provision for Expedited 
         Judicial Review of Use of sampling and statistical 
         Adjustment in Year 2000 Census

       This memorandum is in response to your request for our 
     consideration of four questions dealing with the 
     implementation and likely impact of language added to H.R. 
     2267, the Commerce, Justice, State, and Judiciary 
     Appropriations Bill. By the terms of the Rule granted the 
     bill by the Committee on Rules, H. Res. 239; H. Rept. 105-
     264, the provision, set out in the cited report, was adopted 
     upon the adoption of the Rule.
       Briefly stated, the provision Sec. 209 of H.R. 2267, 
     authorizes ``[a]ny person aggrieved'' by the use of a 
     statistical method of determining population in connection 
     with the year 2000, or later, census, to bring a civil action 
     for declaratory, injunctive, and other appropriate relief 
     against the use of the method on the ground that it is 
     contrary to the Constitution or statute. The definition of an 
     ``aggrieved person'' for purposes of the section is stated to 
     be any resident of a State whose congressional representation 
     or district ``could'' be changed by the use of a statistical 
     method, any Representative or Senator, or either House of 
     Congress. The action authorized is to be heard and determined 
     by a three-judge district court, pursuant to 28 U.S.C. 
     Sec. 2284. Expedited appeal direct to the Supreme Court of 
     any decision by the district court is provided for under 
     specified deadlines for filing.
       A significant provision, subsection (b), states that ``the 
     use of any statistical method in a dress rehearsal or similar 
     test or simulation of a census in preparation for the use of 
     such method, in a decennial census, to determine the 
     population for purposes of the apportionment or redistricting 
     of members in Congress shall be considered the use of such 
     method in connection with that census.''
       Under subsection (d)(2), no appropriated funds may be used 
     for any statistical method, in connection with the decennial 
     census, once a judicial action is filed, until it has been 
     judicially determined that the method is authorized by the 
     Constitution and by act of Congress.
       Three of your questions relate to the likelihood of a 
     Supreme Court decision, using the expedited procedure, either 
     by the time of the beginning of the 1998 census dress 
     rehearsal (approximately March 15, 1998) or prior to the 
     census in 2000. Inasmuch as the date of the decision in any 
     such case depends substantially on the filing date of the 
     suit, and the beginning of the running of any period of 
     expedition, we cannot even guess whether a Supreme Court 
     decision would be likely before either event. Certainly, the 
     date of the start of the dress rehearsal, if it is March 15, 
     1998, is less than six months from now, much less from the 
     time of enactment of the provision, if it is enacted, and 
     from the time a statistical method is tested, if that is 
     sufficient to confer standing. Thus, we can be confident that 
     a decision by March 15, 1998, is highly unlikely. A decision 
     by the beginning of the start of the 2000 census is certainly 
     possible, if a suit may be filed early enough. However, as we 
     indicate below, it is doubtful that anyone would have 
     standing by then, even in light of the section, to bring an 
     action.
       We can indicate, from the time line of past cases, 
     especially those where Congress has provided especially for 
     judicial review and expedited consideration, that the courts 
     are enabled to proceed promptly and in less time than with 
     respect to the ordinary case. For example, the most recent 
     case was handled very expeditiously. Raines v. Byrd,  117 
     S.Ct. 2312 (1997). Congress in 1996 enacted the Line-Item 
     Veto Act, which went into effect on January 1, 1997. The 
     following day, six Members of Congress filed suit. The 
     District Court handed down its decision on April 10, 1997. 
     Pursuant to the statute's authorization, an appeal was filed 
     in the Supreme Court on April 18, the Court granted review on 
     April 23, and, even though the argument period for the Term 
     had run, special oral argument was entertained on May 27, and 
     the decision by the Supreme Court was rendered on June 26.
       Thus, the time from filing in the District Court to the 
     issuance of a decision by the Supreme Court was less than 
     seven months, although we must observe that the decision was 
     based on the lack of standing by the Members, perhaps a less 
     difficult issue than the question on the merits. Nonetheless, 
     the time frame was significant.
       Other cases could be cited. For example, in Bowsher v. 
     Synar, 478 U.S. 714 (1986), testing the constitutionality of 
     certain features of the Gramm-Rudman-Hollings law, the 
     Balanced Budget and Emergency Deficit Control Act of 1985, 
     the courts moved promptly, again acting within a 
     congressionally-enacted provision for expedited judicial 
     review. The President signed the bill into law on December 
     12, 1985, and suit was filed the same day. A three-judge 
     district court was impaneled, and a decision was issued on 
     February 7, 1986. An appeal was filed in the Supreme Court on 
     February 18, review was granted on February 24, oral argument 
     was held on April 23, and the Court's decision was issued on 
     July 7.
       The time line was thus about seven months.
       One may assume, therefore, that a suit, properly brought, 
     challenging the use of some form of statistical adjustment, 
     could be processed within a relatively brief time, perhaps 
     within seven months and perhaps within a briefer period. 
     However, that assumption is of little importance, because the 
     substantial question, the hard issue, turns on what party has 
     standing to bring such a suit; that is, when is a suit 
     ``properly brought''?
       That the use of statistical methods, of samplings and 
     adjustments, is not a frivolous question is evident. The 
     argument is whether the Constitution in requiring an ``actual 
     Enumeration,'' Art. I, Sec. 2, cl. 3, mandates an actual 
     counting or permits some kind of statistical analysis to 
     enhance the count; the further argument is whether Congress, 
     in delegating to the Secretary of Commerce its authority to 
     conduct the census ``in such Manner as [it] shall by Law 
     direct,'' has by instructing him to take ``a decennial census 
     of the population . . . in such form and content as he may 
     determine . . .'', 13 U.S.C. Sec. 141(a), supplied him with 
     sufficient authority to supplement or to supplant the

[[Page H8221]]

     actual count through statistical methods. The Supreme Court 
     has reserved decision on both issues. Wisconsin v. City of 
     New York, 116 S.Ct. 1091, 1101 nn. 9, 11 (1996).
       Courts have entertained suits arising out of these and 
     similar issues. E.g., Wisconsin v. City of New York, supra; 
     Franklin v. Massachusetts, 505 U.S. 738 (1992); Dept. of 
     Commerce v. Montana, 503 U.S. 442 (1992). However, all three 
     cases arose after the actual conduct of or official decision 
     about a particular action that resulted in actual injury to a 
     State or to a political subdivision. These cases, and earlier 
     decisions in the lower courts concerning the 1990 and 1980 
     censuses, certainly stand for the proposition that polities 
     have standing to sue to contest actions that have already 
     occurred and that have injured them. They do little to 
     advance the inquiry required by Sec. 209.
       All citizens, of course, have an interest that the 
     Constitution be observed and followed, that laws be enacted 
     properly based on and permitted by the Constitution, and that 
     laws be correctly administered. However, this general 
     interest, shared by all, is insufficient to confer standing 
     on persons as citizens or as taxpayers. Schlesinger v. 
     Reservists Com. to Stop the War, 418 U.S. 208 (1974); United 
     States v. Richardson, 418 U.S. 166 (1974). See also Valley 
     Forge Christian College v. Americans United, 454 U.S. 464, 
     483 (1982); Allen v. Wright, 468 U.S. 737, 754 (1984); Lujan 
     v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Congress 
     may not overturn this barrier to suit in federal court by 
     devising a test law suit. E.g., Muskrat v. United States, 219 
     U.S. 346 (1911) (striking down a statute authorizing certain 
     named Indians to bring a test suit against the United States 
     to determine the validity of a law affecting the allocation 
     of Indian lands, in which the attorneys' fees of both sides 
     were to be paid out of tribal funds, deposited in the 
     Treasury).
       Standing is one element of the justiciability standard, 
     which limits Article III federal courts to the decision only 
     of cases that properly belong within the role allocated to 
     federal courts. ``[A]t an irreducible minimum,'' the 
     constitutional requisites under Article III for the existence 
     of standing are that the party seeking to sue must personally 
     have suffered some actual or threatened injury that can 
     fairly be traced to the challenged action of the defendant 
     and that the injury is likely to be redressed by a 
     favorable decision. E.g., Allen v. Wright, 468 U.S., 751; 
     Lujan v. Defenders of Wildlife, supra, 504 U.S., 560; 
     Raines v. Byrd, 117 S.Ct., 2317-18. ``We have always 
     insisted on strict compliance with this jurisdictional 
     standing requirement.'' Id., 2317.
       The first element, injury in fact, is a particularly 
     stringent requirement. ``[T]he plaintiff must have suffered 
     an `injury in fact'--an invasion of a legally protected 
     interest which is (a) concrete and particularized, . . . and 
     (b) actual or imminent, not conjectural or hypothetical. 
     ``Lujan v. Defenders of Wildlife, 504 U.S., 560 (internal 
     quotation marks omitted). As the latter part of the element 
     indicates, a party need not await the consummation of the 
     injury in order to be able to sue. However, as the decisions 
     combining parts of standing and of Article III ripeness show, 
     pre-enforcement challenges to criminal and regulatory 
     legislation will be permitted if the plaintiff can show a 
     realistic danger of sustaining an injury to his rights as a 
     result of the governmental action impending; a reasonable 
     certainty of the occurrence of the perceived threat to a 
     constitutional interest is sufficient to afford a basis for 
     bringing a challenge, provided the court has before it 
     sufficient facts to enable it to intelligently adjudicate the 
     issues. Buckley v. Valeo, 424 U.S. 1, 113-18 (1976); Duke 
     Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 
     81-2 (1978); Babbitt v. Farm Workers, 442 U.S. 238, 298 
     (1979); Regional Rail Reorganization Act Cases, 419 U.S. 102, 
     138-48 (1974). The Court requires, though, particularized 
     allegations that show a reasonable certainty, an actual 
     threat of injury. See Renne v. Geary, 501 U.S. 312 (1991); 
     Lujan v. Defenders of Wildlife, 504 U.S., 564-65 & n. 2.
       Critically, in any event, the certainty of injury 
     requirement is a constitutional limitation, while the factual 
     adequacy element is a prudential limitation on judicial 
     review. Regional Rail Reorganization Act Cases, 419 U.S., 
     138-48.
       Congress is free to legislate away prudential restraints 
     upon the jurisdiction of the courts and to confer standing to 
     the utmost extent permitted by Article III. But, Congress may 
     not legislatively dispense with Article III's constitutional 
     requirement of a distinct and palpable injury to a party or, 
     if the injury has not yet occurred, a realistic danger of its 
     happening. Warth v. Seldin, 422 U.S. 490, 501 (1975); Raines 
     v. Byrd, 117 S.Ct., 2318 n. 3. Cf. United States v. SCRAP, 
     412 U.S. 669 (1973), disparaged in Whitmore v. Arkansas, 495 
     U.S. 149, 159 (1990), asserting that it ``surely went to the 
     outer limit of the law.'' The Court has firmly held that 
     Congress, in pursuit of judicial oversight over government 
     activity in areas of general public interest, areas that 
     would not support standing in the first instance, may not 
     enlarge the scope of judicial review by definitionally 
     expanding the meaning of standing under Article III. Lujan v. 
     Defenders of Wildlife, 504 U.S., 571-78. ``Whether the courts 
     were to act on their own, or at the invitation of Congress, 
     in ignoring the concrete injury requirement described in our 
     cases, they would be discarding a principle fundamental to 
     the separate and distinct constitutional role of the Third 
     Branch--one of the essential elements that identifies those 
     `Cases' and `Controversies' that are the business of the 
     courts rather than of the political branches.'' Id., 576. 
     ``[Statutory] broadening [of] the categories of injury 
     that may be alleged in support of standing is a different 
     matter from abandoning the requirement that the party 
     seeking review must himself have suffered an injury.'' 
     Id., 578 (quoting Sierra Club v. Morton, 405 U.S. 727, 738 
     (1972)).
       Turning, then, to the proposed Sec. 209, we must observe 
     that the precedents strongly counsel that the conferral of 
     standing, especially in its definitional design of injury in 
     fact, would be inadequate to authorize judicial review until 
     the occurrence of the injury, the calculation of population 
     figures showing the gains and losses of seats in the House of 
     Representatives.
       First, the conferral of standing in subsections (c)(2) and 
     (3) is likely ineffective. In Raines v. Byrd, supra, Congress 
     had included in the Line-Item Veto Act authorization for 
     ``[a]ny Member of Congress'' to bring an action to contest 
     the constitutionality of the Act. The Court held that the 
     Members seeking to sue had suffered no personal, 
     individualized injury, only rather an assertion of an 
     institutional injury to their status as Members, that was 
     inadequate under Article III. Conceivably, Members 
     representing a State that lost one or more seats in the House 
     as a result of statistical re-evaluation of the census 
     enumeration could suffer the same injury that all residents 
     of the State incurred, but that injury would be confined as 
     we discuss below.
       Second, while either the House of Representatives or the 
     Senate may have interests that could be injured by Executive 
     Branch action, giving either body or both bodies standing to 
     bring an action, what interest either House could assert in 
     the reallocation of seats in the House of Representatives is 
     unclear at best.
       Third, Sec. 209(a) authorizes ``[a]ny person aggrieved by 
     the use of any statistical method . . . in connection with . 
     . . [a] census, to determine the population for purposes of 
     the apportionment or redistricting of members of Congress . . 
     .'' to bring a court action to challenge the 
     constitutionality of or the statutory basis of the 
     statistical method. Under Sec. 209(c)(1), an ``aggrieved 
     person'' is defined to include ``an resident of a State whose 
     congressional representation or district could be changed as 
     a result of the use of a statistical method.'' (Emphasis 
     supplied). By Sec. 209(b), it is provided that ``the use of 
     any statistical method in a dress rehearsal or similar test 
     or simulation of a census in preparation for the use of such 
     method . . . shall be considered the use of such method in 
     connection with that census.'' (Emphasis supplied). That is, 
     any person residing in a state that ``could'' lose House 
     representation as a result of a statistical adjustment of a 
     census may sue as soon as there is ``a dress rehearsal or 
     similar test or simulation of a census.''
       The case law makes it clear that this authorization, if 
     enacted, would run afoul of constitutional barriers to 
     congressional conferral either of standing or of ripeness or 
     both.
       Under Article III, for a litigant to have standing, he must 
     allege an injury in fact to himself or to an interest; if the 
     injury has not yet occurred, he must allege a strong basis 
     for fear that the injury will happen, that there is a real 
     danger of the injury being felt. The quoted provisions 
     purport to confer standing far beyond this constitutional 
     requirement.
       To illustrate, when each census occurs, it is the 
     responsibility of the Bureau of the Census to calculate, 
     using what is called ``the method of equal proportions,'' 2 
     U.S.C. Sec. 2a(a), the number of seats, above the one each 
     State is constitutionally guaranteed, to be allocated to each 
     State, and the numbers are processed by the Department of 
     Commerce, which refers them to the President, who has the 
     responsibility to transmit them to Congress. See generally 
     Dept. of Commerce v. Montana, 503 U.S. 442 (1992); Franklin  
     v. Massachusetts, 505 U.S. 788, Wisconsin v. City of New 
     York, 116 S.Ct. 1091 (1996). The allocation is not final 
     until the President submits the figures to Congress. Franklin 
     v. Massachsuetts, 505 U.S. 796-801. It is then that the loss 
     of a seat or seats is legally final, and it seems clear that 
     the States losing seats have suffered a cognizable injury, 
     enabling them to bring suit to challenge at least certain 
     aspects of the conduct of the census. Id., 801-803.
       Whether residents of a State that has lost one or more 
     seats in the House of Representatives have standing to bring 
     suit is questionable. Certainly, voters in a State in which 
     redistricting is not accomplished through the creation of 
     equally-populated districts have standing to complain about 
     the dilution of their voting strength. E.g., Wesberry v. 
     Sanders, 376 U.S. 1 (1964); Darcher v. Daggett, 462 U.S. 725 
     (1983). And a resident of a congressional district that has 
     been drawn impermissibly using race has standing to challenge 
     that districting. United States v. Hays, 515 U.S. 737 (1995). 
     But in the context of a State losing a House seat, every 
     resident of that State has a general interest that is shared 
     by all other residents. It is not a particularized injury in 
     fact that is what normally confers standing.
       Let us, however, assume that residents would have standing. 
     The injury would not occur until the President transmits the 
     figures to Congress. Even if one could allege the imminent 
     likelihood of injury, a realistic danger of injury, that 
     development is only

[[Page H8222]]

     going to mature when the census is completed and the 
     calculations are made awarding the correct number of seats to 
     each House. And we hear speak of a challenge to the actual 
     census.
       The challenge, however, authorized by Sec. 209, is to the 
     use of a statistical method that ``could'' change the result 
     of the census enumeration. An injury in fact would not occur, 
     again, until the result is reported to Congress by the 
     President; an imminent injury in fact could conceivably occur 
     when the Census Bureau and the Commerce Department utilize a 
     statistical adjustment that changes the allocation of seats. 
     But that occurs after the tabulation of the census result and 
     the utilization of a statistical method that changes the 
     result of the census count itself.
       The Supreme Court has never approved standing premised on 
     an allegation that a particular governmental action ``could'' 
     cause an injury. Of course, the application of a statistical 
     method ``could'' work a change in the census, but to which 
     States and with what results would be extremely speculative 
     under the best of circumstances.
       Moreover, the definition of the ``use of any statistical 
     method'' to include a test, or dress rehearsal, or simulation 
     of a census would confer standing that is even further 
     removed from the occurrence of the event that ``could'' or 
     ``might'' result in an injury. It would be impossible to 
     point to any result of the conduct of a test or whatever that 
     might conceivably occasion the loss of one or more House 
     seats.
       Because Congress lacks the power to create a definition of 
     standing or of the imminent likelihood of injury giving 
     standing that would infringe the constitutional requirement 
     of standing--of injury in fact or of the imminent likelihood 
     of injury--it appears extremely likely that the Supreme Court 
     would either strike down the provision, cf. City of Boerne v. 
     Flores, 117 S.Ct. 2157 (1997), or disregard it. Cf. Raines v. 
     Byrd, supra.
       Finally, we must note Sec. 209(e) that purports to 
     authorize any executive branch agency or entity having 
     authority to carry out the census to bring a civil action to 
     obtain a declaratory judgment as to its constitutional and 
     statutory powers in this regard. It seems doubtful that this 
     authority could be exercised. It would likely fall under the 
     principle that no suit may be maintained unless there is 
     adversity between the plaintiffs and the defendants. See 
     Muskrat v. United States, 219 U.S. 346 (1911). What 
     government agencies have to do is to proceed on the basis of 
     their judgment about their powers, and then they will be 
     subject to suit challenging that judgment. This subsection 
     appears to do nothing less than to authorize an agency to 
     seek an advisory opinion.

                                            Johnny H. Killian,

                                                Senior Specialist,
                                      American Constitutional Law.
  Mr. MOLLOHAN. Mr. Chairman, I reserve the balance of my time.
  Mr. HASTERT. Mr. Chairman, I yield myself as much time as I may 
consume.
  Mr. Chairman, I believe that every Member of this House can agree 
that we need to conduct the census that includes all Americans and is 
free of any partisan manipulation. There are those who say that this no 
longer can be accomplished by actually counting Americans. They want to 
restore the statistical methods in order to estimate or guess how many 
people are in this country. They have thrown up their hands and said an 
accurate census cannot be done by counting.
  Mr. Chairman, it can be done, and in fact it has been done. Once 
again Washington bureaucrats need to listen and learn from folks 
outside the beltway.
  In testimony before my subcommittee, communities like Milwaukee, 
Wisconsin, Indianapolis, and Cincinnati describe how they conducted an 
actual count at accuracy levels higher than those the Census Bureau 
proposes to achieve with their risky statistical scheme. Census Bureau 
Director Riche may not trust her ability to count, but Michael Morgan 
in Milwaukee proved he knew how to do it.
  Mr. Chairman, census sampling is a bad idea, but there is a more 
fundamental question: Is it legal and constitutional to use sampling 
and statistical adjustment to apportion this House among the States? I 
believe it is clear that census sampling and statistical adjustments 
are both illegal and unconstitutional. In that light, to blindly move 
forward with a $5 million census that could well be thrown out by the 
Supreme Court would be very foolish.

                              {time}  1815

  Article I, section 2 of the Constitution states that actual 
enumeration of the population be conducted every 10 years.
  To enumerate means to count, one-by-one. It does not mean that we 
should use sampling as a shortcut just because counting might be hard. 
Nor does it mean that we should use statistical adjustment to 
manipulate the count so that the results are more to someone else's 
liking.
  The 14th amendment to the Constitution States that ``Representatives 
shall be apportioned among the several States according to their 
respective numbers, counting the whole number of persons in each 
State.'' The 14th amendment does not tell us to use statistics; it 
tells us to count.
  Title 13 of the United States Code, section 195, states that ``Except 
for the determination of population for purposes of apportionment of 
Representatives in Congress among the several States, the Secretary 
shall, if he considers it feasible, authorize the use of the 
statistical method known as sampling.''
  Mr. Chairman, the statute is crystal clear. While allowing 
statistical methods for nonconstitutionally required purposes, the 1957 
statute explicitly maintained an absolute firewall against the use of 
statistical methods for reapportionment. This was a wise, bipartisan 
precaution designed to prevent the census from deteriorating into a 
partisan power grab.
  Mr. Chairman, the Congress reaffirmed this firewall once again in 
1976 when it passed into law Title 13, section 141 of the United States 
Code. This section allows the Secretary broad discretion in the use of 
statistical methods for nonapportionment purposes. Let me repeat: for 
nonapportionment purposes.
  The supporters of census sampling would have us believe that section 
141 allows that sampling be used for reapportionment. That is simply 
not true. Congress specifically left intact the absolute prohibition on 
their use of apportionment purposes established in section 195. If 
Congress had intended that sampling be used for reapportionment, they 
would have repealed section 195 at that time. They did not.
  Mr. Chairman, the law is clear, and I believe that the Justices will 
confirm that. The Justices know that actual enumeration means to count. 
Listen to what Justice Scalia said during the last census case, and I 
quote:

       The text of the Constitution, as I read it, does not say 
     that there will be an estimate of the number of citizens. It 
     talks about actual enumeration. It doesn't even use the word 
     ``census''. It says actual enumeration.

  He added, and I quote,

       Adjustment techniques ultimately involve kinds of value 
     choices and are therefore politically manipulable.

  Mr. Chairman, the Justices also know that they will ultimately be 
called on to rule on the legality of sampling. In the case that I just 
mentioned the city of New York tried to force a statistical adjustment 
of the census. The Supreme Court ruled that the Secretary of Commerce 
could not be forced to do so. During the oral arguments, Justice Scalia 
said that this case will decide whether you must use statistical 
estimates and the next one will decide whether you may use it.
  Mr. Chairman, the Supreme Court will answer that fundamental question 
sooner or later. My language in this bill is designed to make it 
sooner. My colleagues on the other side of the aisle should not be 
afraid to let the Supreme Court rule. It is our duty as the people's 
representatives to see their tax money is spent wisely, not wasted. The 
wisest course for Congress today is to take the politics out of the 
census and let the Supreme Court decide before billions of tax dollars 
are wasted.
  Mr. Chairman, the Mollohan-Shays amendment does not protect the 
census from political mischief or the taxpayers from fiscal disaster. 
The Mollohan-Shays amendment will leave taxpayers wide open to 
multibillion dollar boondoggles. Protect the integrity of our census 
and the tax dollars of hard-working Americans. Reject the Mollohan-
Shays amendment and allow the Supreme Court to rule.
  Mr. Chairman, I reserve the balance of my time.
  Mr. MOLLOHAN. Mr. Chairman, I yield such time as he may consume to 
the gentleman from Illinois [Mr. Davis].
  (Mr. DAVIS of Illinois asked and was given permission to revise and 
extend his remarks.)
  Mr. DAVIS. Mr. Chairman, I rise in support of the Mollohan-Shays 
amendment.
  Mr. Chairman, I rise today and join my colleagues in strong support 
of the Mollahan-Shays amendment. This amendment is about

[[Page H8223]]

ensuring an accurate count of the 2000 census. The Constitution 
requires an accurate count, not a headcount. This amendment would allow 
the use of statistical sampling to conduct the 2000 census.
  Since 1790, during the first census there was a significant 
undercount especially among minorities. Two hundred years later in 
1990, it is estimated that the census missed 10 percent of the 
population. The Government Accounting Office estimates that as many as 
26 million people were missed. Locally, in the State of Illinois, the 
undercount was about .98 percent. In Cook County undercount was about 
1.6 percent. The city of Chicago undercount was about 2.4 percent.
  Furthermore, African-Americans were said to have anywhere from a 5-6 
percent undercount; Latinos were about 5 percent; and Asian Pacific 
Islanders were about a 3-percent undercount.
  The statistics demonstrate that the poor and mainly racial minorities 
are seriously missed. Africans-Americans are 7 times as likely to be 
missed as Whites. That translates into being--7 times more likely to be 
denied resources and representation in Congress, State legislatures, 
city councils, county boards and other political subdivision. An 
undercount among minorities furthers their deprivation to Federal money 
while devaluing their political power. Billions of Federal dollars are 
at stake. Governmental agencies often use census data to dole out money 
or at least to determine targeted areas for distribution. There are 
some 120 federally-funded programs that move approximately $150 billion 
a year, which use the census data in their formulation for 
distribution.

  In 1990, children made up only one-fourth of the population but 
accounted for 52 percent of the undercount. The children, the most 
vulnerable people in our society have been denied representation and 
valuable resources because of this significant undercount.
  This amendment simply seeks to ensure that each and every individual 
is counted without regard to color, wealth, or status. This amendment 
protects both the urban and rural dweller.
  If the primary goals of the upcoming census are to reduce cost and to 
eliminate the differential undercount, then let's take the politics out 
of the census. The real issue is how to get the most accurate count and 
the real answer is sampling.
  Statistical sampling and estimation techniques have been proposed as 
a means to finish the undercount for the 10 percent that are the 
hardest to reach--the hardest to find, the left out, the hopeless and 
helpless, traditionally minorities and the poor. This is not the first 
time that sampling has been used in the census. This approach has also 
been endorsed by expert panels of the National Academy of Sciences, the 
American Statistical Association, the Commerce Department's Inspector 
General, the GAO and various other professional organizations.

  As a matter of fact, three separate panels convened by the National 
Academy of Sciences have recommended that the Census Bureau use 
sampling in the 2000 census to save money and improve accuracy. The 
commerce IG has said that sampling and statistical methods are the only 
way to eliminate the historic, disproportionate undercount of people of 
color and the poor.
  Ten percent of the count in 1990 was wrong. The Census Bureau will 
make an unprecedented effort to count all Americans directly. Sampling 
is scientific, not guessing.
  Conducting the most accurate census must be the goal for the 2000 
census, that goal cannot be met without the use of sampling. We owe it 
to ourselves and we owe it to the American people.
  Therfore, I urge my colleagues to join me in support of this 
amendment that would allow for the use of statistical sampling.
  Mr. MOLLOHAN. Mr. Chairman, I yield such time as he may consume to 
the gentleman from Missouri [Mr. Clay].
  (Mr. CLAY asked and was given permission to revise and extend his 
remarks.)
  Mr. CLAY. Mr. Chairman, I thank the gentleman for yielding, and I 
rise in support of the Mollohan-Shays amendment.
  Mr. Chairman, no one honestly or seriously disputes that the 1990 
census undercounted the population. Nor does anyone honestly or 
seriously dispute the fact that minority populations, blacks and 
Hispanics especially, as well as rural residents and children were 
disproportionately undercounted.
  Though my colleagues on the other side of the aisle will try to 
confuse the issue, there is no debate at all within the scientific 
community that the use of statistical sampling would improve the 
accuracy of the census.
  So what is this debate about? Some have contended that statistical 
sampling may be a means by which the census would be intentionally 
distorted. The sponsors of this amendment have dealt with that concern 
by crafting an amendment that, among other things, provides assurances 
that sampling will be conducted in a scientific, non-partisan manner.
  So what are the real concerns? Well, Mr. Chairman, it is blatantly 
obvious to me that those who oppose sampling fear that their own 
political power would be threatened by an accurate census. And, rather 
than contest for political power out in the open, they prefer a system 
that denies millions of Americans the representation they are due under 
our Constitution.
  In the end, what this debate is about is whether we reject the view 
that some people may as well be invisible and whether we will abide by 
the principle of one man-one vote. I urge my colleagues to support the 
Mollohan-Shays amendment.
  Mr. MOLLOHAN. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
New York [Mrs. Maloney], who is the ranking minority member on the 
Subcommittee on Government Management, Information, and Technology of 
the Committee on Government Reform and Oversight.
  Mrs. MALONEY of New York. Mr. Chairman, sending the census sampling 
issue before the Supreme Court certainly sounds like a righteous 
compromise, but beware of a wolf in sheep's clothing. The Supreme Court 
will decide in favor of sampling, but while we are waiting as long as a 
year, the stalling will kill sampling for the 2000 census. Indecision 
will become the decision. Missing the Census Bureau deadlines for as 
long as a year means certain death for a fair and accurate census.
  There has been a great deal of misinformation that has been bandied 
about, and I would like to set the record straight on the Census 
Bureau's plan. What the Census Bureau plans to do will be the largest 
peacetime mobilization ever. Ninety percent of the people will be 
counted using traditional methods. People will be contacted four times 
through the mail. They will be contacted by phone for the first time. 
Community outreach will include forms that are in post offices, stores, 
churches, malls, and TV ads are in the works.
  Then the Bureau will begin to knock on doors, but we know that many 
of these doors will remain shut because people do not open their doors 
to strangers, they are not there, they are at work. And only for the 
last 10 percent, for those people who could not be reached by mail, 
phone, a knock on the door, or through the media, only for that last 10 
percent will statistical sampling be used.
  Mr. Chairman, we know that some people are more likely to be missed 
than others. They are our Nation's poor, our Nation's minorities. They 
are the people who most need to be heard and who are most often 
silenced. The use of sampling is the civil rights issue of the 1990's.
  There are hundreds of professional organizations, community groups, 
editorial boards across the country, experts, who all endorse sampling. 
The Mollohan-Shays amendment will give people the simple right to the 
representation that they deserve.
  I urge my colleagues to do what is right for all of their 
constituents. Make sure they can count on us not to count them out in 
the year 2000 census. Vote for the Mollohan-Shays bipartisan amendment.
  Mr. Chairman, I include for the Record data from the Congressional 
Research Service in support of my position. The CRS report says that 
the Hastert amendment will just block forward-going of an accurate 
census.
                                   Congressional Research Service,


                                      The Library of Congress,

                               Washington, DC, September 29, 1997.
     To: Honorable Carolyn B. Maloney, Attention: David McMillen.
     From: American Law Division.
     Subject: Questions re Legislative Provision for Expedited 
         Judicial Review of Use of sampling and statistical 
         Adjustment in Year 2000 Census.
       This memorandum is in response to your request for 
     consideration of four questions dealing with the 
     implementation and likely impact of language added to H.R. 
     2267, the Commerce, Justice, State, and Judiciary 
     Appropriations Bill. By the terms of the Rule granted the 
     bill by the Committee on Rules, H. Res. 239; H. Rept. 105-
     264, the provision, set out in the cited report, was adopted 
     upon the adoption of the Rule.
       Briefly stated, the provision Sec. 209 of H.R. 2267, 
     authorizes ``[a]ny person aggrieved'' by the use of a 
     statistical method of determining population in connection 
     with the year 2000, or later, census, to bring a civil action 
     for declaratory, injunctive, and other appropriate relief 
     against the use of the method on

[[Page H8224]]

     the ground that it is contrary to the Constitution or 
     statute. The definition of an ``aggrieved person'' for 
     purposes of the section is stated to be any resident of a 
     State whose congressional representation or district 
     ``could'' be changed by the use of a statistical method, any 
     Representative or Senator, or either House of Congress. The 
     action authorized is to be heard and determined by a three-
     judge district court, pursuant to 28 U.S.C. Sec. 2284. 
     Expedited appeal direct to the Supreme Court of any decision 
     by the district court is provided for under specified 
     deadlines for filing.
       A significant provision, subsection (b), states that ``the 
     use of any statistical method in a dress rehearsal or similar 
     test or simulation of a census in preparation for the use of 
     such method, in a decennial census, to determine the 
     population for purposes of the apportionment or redistricting 
     of members in Congress shall be considered the use of such 
     method in connection with that census.''
       Under subsection (d)(2), no appropriated funds may be used 
     for any statistical method, in connection with the decennial 
     census, once a judicial action is filed, until it has been 
     judicially determined that the method is authorized by the 
     Constitution and by act of Congress.
       Three of your questions relate to the likelihood of a 
     Supreme Court decision, using the expedited procedure, either 
     by the time of the beginning of the 1998 census dress 
     rehearsal (approximately March 15, 1998) or prior to the 
     census in 2000. Inasmuch as the date of the decision in any 
     such case depends substantially on the filing date of the 
     suit, and the beginning of the running of any period of 
     expedition, we cannot even guess whether a Supreme Court 
     decision would be likely before either event. Certainly, the 
     date of the start of the dress rehearsal, if it is March 15, 
     1998, is less than six months from now, much less from the 
     time of enactment of the provision, if it is enacted, and 
     from the time a statistical method is tested, if that is 
     sufficient to confer standing. Thus, we can be confident that 
     a decision by March 15, 1998, is highly unlikely. A decision 
     by the beginning of the start of the 2000 census is certainly 
     possible, if a suit may be filed early enough. However, as we 
     indicate below, it is doubtful that anyone would have 
     standing by then, even in light of the section, to bring an 
     action.
       We can indicate, from the time line of past cases, 
     especially those where Congress has provided especially for 
     judicial review and expedited consideration, that the courts 
     are enabled to proceed promptly and in less time than with 
     respect to the ordinary case. For example, the most recent 
     case was handled very expeditiously. Raines v. Byrd, 117 
     S.Ct. 2312 (1997). Congress in 1996 enacted the Line-Item 
     Veto Act, which went into effect on January 1, 1997. The 
     following day, six Members of Congress filed suit. The 
     District Court handed down its decision on April 10, 1997. 
     Pursuant to the Statute's authorization, an appeal was filed 
     in the Supreme Court on April 18, the Court granted review on 
     April 23, and, even though the argument period for the Term 
     had run, special oral argument was entertained on May 27, and 
     the decision by the Supreme Court was rendered on June 28.
       Thus, the time from filing in the District Court to the 
     issuance of a decision by the Supreme Court was less than 
     seven months, although we must observe that the decision was 
     based on the lack of standing by the Members, perhaps a less 
     difficult issue than the question on the merits. Nonetheless, 
     the time frame was significant.
       Other cases could be cited. For example, in Bowsher v. 
     Synar, 478 U.S. 714 (1986), testing the constitutionality of 
     certain features of the Gramm-Rudman-Hollings law, the 
     Balanced Budget and Emergency Deficit Control Act of 1985, 
     the courts moved promptly, again acting within a 
     congressional-enacted provision for expended judicial review. 
     The President signed the bill into law on December 12, 
     1985,and suit was filed the same day. A three-judge district 
     court was impaneled, and a decision was issued on Feburary 7. 
     1986. An appeal was filed in the Supreme Court on February 
     18, review was granted on February 24, oral argument was held 
     on April 23, and the Court's decisions was issued on July 7.
       The time line was thus about seven months.
       One may assume, therefore, that a suit, properly brought, 
     challenging the use of some form of statistical adjustment, 
     could be processed within a relatively brief time, perhaps 
     within seven months and perhaps within a briefer period. 
     However, that assumption is of little importance, because the 
     substantial question, the hard issue, turns on what party has 
     standing to bring such a suit; that is, when is a suit 
     ``properly brought''?
       That the use of statistical methods, of samplings and 
     adjustments, is not a frivolous question is evident. The 
     argument is whether the Constitution in requiring an ``actual 
     Enumeration,'' Art. I, Sec. 2, cl. 3, mandates an actual 
     counting or permits some kind of statistical analysis to 
     enhance the count; the further argument is whether Congress, 
     in delegating to the Secretary of Commerce its authority to 
     conduct the census ``in such Manner as [it] shall by Law 
     direct,'' has by instructing him to take ``a decennial census 
     of the population . . . in such form and content as he may 
     determine . . .'', 13 U.S.C. Sec. 141(a), supplied him with 
     sufficient authority to supplement or to supplant the actual 
     count through statistical methods. The Supreme Court has 
     reserved decision on both issues. Wisconsin v. City of New 
     York, 116 S.Ct. 1091, 1101 nn. 9, 11 (1996).
       Courts have entertained suits arising out of these and 
     similar issues, E.g., Wisconsin v. City of New York, supra; 
     Franklin v. Massachusetts, 505 U.S. 738 (1992); Dept. of 
     Commerce v. Montana, 503 U.S. 442 (1992). However, all three 
     cases arose after the actual conduct of or official decision 
     about a particular action that resulted in actual injury to a 
     State or to a political subdivision. These cases, and earlier 
     decisions in the lower courts concerning the 1990 and 1980 
     censuses, certainly stand for the proposition that polities 
     have standing to sue to contest actions that have already 
     occurred and that have injured them. They do little to 
     advance the inquiry required by Sec. 209.
       All citizens, of course, have an interest that the 
     Constitution be observed and followed, that laws be enacted 
     properly based on and permitted by the Constitution, and that 
     laws be correctly administered. However, this general 
     interest, shared by all, is insufficient to confer standing 
     on persons as citizens or as taxpayers. Schlesinger v. 
     Reservists Com. to Stop the War, 418 U.S. 208 (1974); United 
     States v. Richardson, 418 U.S. (1974). See also Vallety Forge 
     Christian College v. Americans United, 454 U.S. 464, 483 
     (1982); Allen v. Wright, 468 U.S. 737, 754 (1984); Lujan v. 
     Defenders of Wildlife, 504 U.S. 555, 560 (1992). Congress may 
     not overturn this barrier to suit in federal court by 
     devising a test law suit. E.g., Muskrat v. United States, 219 
     U.S. 346 (1911) (striking down a statute authorizing certain 
     named Indians to bring a test suit against the United States 
     to determine the validity of a law affecting the allocation 
     of Indian lands, in which the attorneys' fees of both sides 
     were to be paid out of tribal funds, deposited in the 
     Treasury).
       Standing is one element of the justiciability standard, 
     which limits Article III federal courts to the decision only 
     of cases that properly belong within the role allocated to 
     federal courts. ``[A]t an irreducible minimum,'' the 
     constitutional requisites under Article III for the existence 
     of standing are that the party seeking to sue must personally 
     have suffered some actual or threatened injury that can 
     fairly be traced to the challenged action of the defendant 
     and that the injury is likely to be redressed by a 
     favorable decision. E.g., Allen v. Wright, 468 U.S., 751; 
     Lujan v. Defenders of Wildlife, supra, 504 U.S., 560; 
     Raines v. Byrd, 117 S.Ct., 2317-18, ``We have always 
     insisted on strict compliance with this jurisdictional 
     standing requirement.'' Id., 2317.
       The first element, injury in fact, is a particularly 
     stringent requirement. ``[T]he plaintiff must have suffered 
     an `injury in fact'--an invasion of a legally protected 
     interest which is (a) concrete and particularized, . . . and 
     (b) actual or imminent, not conjectural or hypothetical.'' 
     Lujan v. Defenders of Wildlife, 504 U.S., 560 (internal 
     quotation marks omitted). As the latter part of the element 
     indicates, a party need not await the consummation of the 
     injury in order to be able to sue. However, as the decisions 
     combining parts of standing and of Article III ripeness show, 
     pre-enforcement challenges to criminal and regulatory 
     legislation will be permitted if the plaintiff can show a 
     realistic danger of sustaining an injury to his rights as a 
     result of the governmental action impending; a reasonable 
     certainty of the occurrence of the perceived threat to a 
     constitutional interest is sufficient to afford a basis for 
     bringing a challenge, provided the court has before it 
     sufficient facts to enable it to intelligently adjudicate the 
     issues, Buckley v. Valeo, 424 U.S. 1, 113-18 (1976); Duke 
     Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 
     81-2 (1978); Babbitt v. Farm Workers, 442 U.S. 289, 298 
     (1979); Regional Rail Reorganization Act Cases, 419 U.S. 102, 
     138-48 (1974). The Court requires, though, particularized 
     allegations that show a reasonable certainty, an actual 
     threat of injury. See Renne v. Geary, 501 U.S. 312 (1991); 
     Lujan v. Defenders of Wildlife, 504 U.S., 564-65 & n. 2.
       Critically, in any event, the certainty of injury 
     requirement is a constitutional limitation, while the factual 
     adequacy element is a prudential limitation on judicial 
     review. Regional Rail Reorganization Act Cases, 419 U.S., 
     138-48.
       Congress is free to legislate away prudential restraints 
     upon the jurisdiction of the courts and to confer standing to 
     the utmost extent permitted by Article III. But, Congress may 
     not legislatively dispense with Article III's constitutional 
     requirement of a distinct and palpable injury to a party or, 
     if the injury has not yet occurred, a realistic danger of its 
     happening. Warth v. Seldin, 422 U.S. 490, 501 (1975); Raines 
     v. Byrd, 117 S.Ct., 2318 n. 3. Cf. United States v. SCRAP, 
     412 U.S. 669 (1973), disparaged in Whitmore v. Arkansas, 495 
     U.S. 149, 159 (1990), asserting that it ``surely went to the 
     outer limit of the law.'' The Court has firmly held that 
     Congress, in pursuit of judicial oversight over government 
     activity in areas of general public interest, areas that 
     would not support standing in the first instance, may not 
     enlarge the scope of judicial review by definitionally 
     expanding the meaning of standing under Article III. Lugan v. 
     Defenders of Wildlife, 504 U.S., 571-78, ``Whether the courts 
     were to act on their own, or at the invitation of Congress, 
     in ignoring the concrete injury requirement described in our 
     cases, they would be discarding a principle fundamental to 
     the separate and distinct constitutional role of the Third 
     Branch--one of the essential elements that identifies those 
     `Cases' and `Controversies' that are the business of the 
     courts rather than of the political

[[Page H8225]]

     branches.'' Id., 576. `` `[Statutory] broadening [of] the 
     categories of injury that may be alleged in support of 
     standing is a different matter from abandoning the 
     requirement that the party seeking review must himself 
     have suffered an injury.'' Id., 578 (quoting Sierra Club 
     v. Morton, 405 U.S. 727, 738 (1972)).
       Turning, then, to the proposed Sec. 209, we must observe 
     that the precedents strongly counsel that the conferral of 
     standing, especially in its definitional design of injury in 
     fact, would be inadequate to authorize judicial review until 
     the occurrence of the injury, the calculation of population 
     figures showing the gains and losses of seats in the House of 
     Representatives.
       First, the conferral of standing in subsections (c)(2) and 
     (3) is likely ineffective. In Raines v. Byrd, supra, Congress 
     had included in the Line-Item Veto Act authorization for 
     ``[a]ny Member of Congress'' to bring an action to contest 
     the constitutionality of the Act. The Court held that the 
     Members seeking to sue had suffered no personal, 
     individualized injury, only rather an assertion of an 
     institutional injury to this status as Members, that was 
     inadequate under Article III. Conceivably, Members 
     representing a State that lost one or more seats in the House 
     as a result of statistical re-evaluation of the census 
     enumeration could suffer the same injury that all residents 
     of the State incurred, but that injury would be confined as 
     we discuss below.
       Second, while either the House of Representatives or the 
     Senate may have interests that could be injured by Executive 
     Branch action, giving either body or both bodies standing to 
     bring an action, what interest either House could assert in 
     the reallocation of seats in the House of Representatives is 
     unclear at best.
       Third, Sec. 209(a) authorizes ``[a]ny person aggrieved by 
     the use of any statistical method . . . in connection with . 
     . . [a] census, to determine the population for purposes of 
     the apportionment or redistricting of members of Congress . . 
     .'' to bring a court action to challenge the 
     constitutionality of or the statutory basis of the 
     statistical method. Under Sec. 209(c)(1), an ``aggrieved 
     person'' is defined to include ``any resident of a State 
     whose congressional representative or district could be 
     changed as a result of the use of a statistical method.'' 
     (Emphasis supplied). By Sec. 209(b), it is provided that 
     ``the use of any statistical method in a dress rehearsal or 
     similar test or simulation of a census in preparation for the 
     use of such method . . . shall be considered the use of such 
     method in connection with that census.'' (Emphasis supplied). 
     That is, any person residing in a state that ``could'' lose 
     House representation as a result of a statistical adjustment 
     of a census may sue as soon as there is ``a dress rehearsal 
     or similar test or simulation of a census.''
       The case law makes it clear that this authorization, if 
     enacted, would run afoul of constitutional barriers to 
     congressional conferral either of standing or of ripeness or 
     both.
       Under Article III, for a litigant to have standing, he must 
     allege an injury in fact to himself or to an interest; if the 
     injury has not yet occurred, he must allege a strong basis 
     for fear that the injury will happen, that there is a real 
     danger of the injury being felt. The quoted provisions 
     purport to confer standing far beyond this constitutional 
     requirement.
       To illustrate, when each census occurs, it is the 
     responsibility of the Bureau of the Census to calculate, 
     using what is called ``the method of equal proportions,'' 2 
     U.S.C. Sec. 2a(a), the number of seats, above the one each 
     State is constitutionally guaranteed, to be allocated to each 
     State, and the numbers are processed by the Department of 
     Commerce, which refers them to the President, who has the 
     responsibility to transmit them to Congress. See generally 
     Dept. of Commerce v. Montana, 503 U.S. 442 (1992); Franklin 
     v. Massachusetts, 505 U.S. 788, Wisconsin v. City of New 
     York, 116 S.Ct. 1091 (1996). The allocation is not final 
     until the President submits the figures to Congress. Franklin 
     v. Massachusetts, 505 U.S., 796-801. It is then that the loss 
     of a seat or seats is legally final, and it seems clear that 
     the States losing seats have suffered a cognizable injury, 
     enabling them to bring suit to challenge at least certain 
     aspects of the conduct of the census. Id., 801-803.
       Whether residents of a State that has lost one or more 
     seats in the House of Representatives have standing to bring 
     suit is questionable. Certainly, voters in a State in which 
     redistricting is not accomplished through the creation of 
     equally-populated districts have standing to complain about 
     the dilution of their voting strength. E.g., Wesberry v. 
     Sanders, 376 U.S. 1 (1964); Darcher v. Daggett, 462 U.S. 725 
     (1983). And a resident of a congressional district that has 
     been drawn impermissibly using race has standing to challenge 
     that districting. United States v. Hays, 515 U.S. 737 (1995). 
     But in the context of a State losing a House seat, every 
     resident of that State has a general interest that is shared 
     by all other residents. It is not a particularized injury in 
     fact that is what normally confers standing.
       Let us, however, assume that residents would have standing. 
     The injury would not occur until the President transmits the 
     figures to Congress. Even if one could allege the imminent 
     likelihood of injury, a realistic danger of injury, that 
     development is only going to mature when the census is 
     completed and the calculations are made awarding the correct 
     number of seats to each House. And we hear speak of a 
     challenge to the actual census.
       The challenge, however, authorized by Sec. 209, is to the 
     use of a statistical method that ``could'' change the result 
     of the census enumeration. An injury in fact would not occur, 
     again, until the result is reported to Congress by the 
     President; an imminent injury in fact could conceivably occur 
     when the Census Bureau and the Commerce Department utilize a 
     statistical adjustment that changes the allocation of seats. 
     But that occurs after the tabulation of the census result and 
     the utilization of a statistical method that changes the 
     result of the census count itself.
       The Supreme Court has never approved standing premised on 
     an allegation that a particular governmental action ``could'' 
     cause an injury. Of course, the application of a statistical 
     method ``could'' work a change in the census, but to which 
     States and with what results would be extremely speculative 
     under the best of circumstances.
       Moreover, the definition of the ``use of any statistical 
     method'' to include a test, or dress rehearsal, or simulation 
     of a census would confer standing that is even further 
     removed from the occurrence of the event that ``could'' or 
     ``might'' result in an injury. It would be impossible to 
     point to any result of the conduct of a test or whatever that 
     might conceivably occasion the loss of one or more House 
     seats.
       Because Congress lacks the power to create a definition of 
     standing or of the imminent likelihood of injury giving 
     standing that would infringe the constitutional requirement 
     of standing--of injury in fact or of the imminent likelihood 
     of injury--it appears extremely likely that the Supreme Court 
     would either strike down the provision, cf. City of Boerne v. 
     Flores, 117 S.Ct. 2157 (1997), or disregard it. Cf. Raines v. 
     Byrd, supra.
       Finally, we must note Sec. 209(e) that purports to 
     authorize any executive branch agency or entity having 
     authority to carry out the census to bring a civil action to 
     obtain a declaratory judgment as to its constitutional and 
     statutory powers in this regard. It seems doubtful that this 
     authority could be exercised. It would likely fall under the 
     principle that no suit may be maintained unless there is 
     adversity between the plaintiffs and the defendants. See 
     Muskrat v. United States, 219 346 (1911). What government 
     agencies have to do is to proceed on the basis of their 
     judgment about their powers, and then they will be subject to 
     challenging that judgment. This subsection appears to do 
     nothing less than to authorize an agency to seek an advisory 
     opinion.

                                            Johnny H. Killian,

                                                Senior Specialist,
     American Constitutional Law.
                                                                    ____



                                Congress of the United States,

                                Washington, DC, September 29, 1997

                         SUPPORT MOLLOHAN-SHAYS

                 CRS: Supreme Court Review Won't Happen

       Dear Colleague: Last week the Rules Committee changed the 
     restrictive language on the census in the Commerce, Justice, 
     State Appropriations bill at the request of Rep. Hastert, to 
     ban the use of modern statistical methods pending a court 
     decision. Proponents of the Hastert language argue that they 
     have provided a compromise, but in reality this is just 
     another attempt to stop the census from counting everyone.
       We have always believed that it is legal to use sampling in 
     the Census, based on Supreme Court decisions and opinions 
     from the Justice Department under three Presidents. Because 
     we take seriously concerns about partisan manipulation of the 
     census, we support the Mollohan-Shays Amendment setting up a 
     three-member bipartisan panel to oversee Census 2000. Mr. 
     Hastert instead proposed a court review. Today we received a 
     memorandum from the Congressional Research Service responding 
     to a request to analyze the Hastert language. In short, the 
     Hastert language will not result in a decision on the 
     constitutionality of sampling, it will only block the use of 
     appropriated funds.
       The first issue is what lawyers call standing: whether 
     someone can sue over the use of sampling in the census. In 
     other words, has someone been injured by a government action, 
     and can thus use the courts to address that injury. The 
     Hastert language tries to get around this issue by declaring 
     in the bill who has standing to sue. Unfortunately, the 
     Constitution does not allow that. There is a Constitutional 
     test to determine who has standing in a case, and Congress 
     cannot bypass that requirement in a law. As CRS said, ``The 
     case law makes it clear that this authorization, if enacted, 
     would run afoul of constitutional barriers to Congressional 
     referral either of standing or of ripeness or both.''
       Even if standing were not a constitutional problem for the 
     Hastert proposal, the Supreme Court has made it quite clear 
     that a challenge to the census must take place after the 
     numbers are final. As the CRS report says, ``[W]e must 
     observe that the precedents strongly counsel that the 
     conferral of standing, especially in its definitional design 
     of injury in fact, would be inadequate to authorize judicial 
     review until the occurrence of injury, the calculation of 
     population figures showing the gains and losses of seats in 
     the House of Representatives.''
       The CRS memorandum is quite clear that this language will 
     not work. ``The case law makes it clear that this 
     authorization, if enacted, would run afoul of constitutional 
     barriers to congressional conferral either of

[[Page H8226]]

     standing or of ripeness or both.'' The memorandum goes on to 
     say ``. . . it appears extremely likely that the Supreme 
     Court would either strike down the provision, or disregard 
     it.''
       Only the Mollohan-Shays Amendment works towards a fair and 
     accurate census.
     Carolyn Maloney,
     Christopehr Sahys,
       Members of Congress.
                                                                    ____


 Professional Organizations That Have Endorsed the Use of Sampling in 
                            the 2000 Census

       National Academy of Sciences Panel on Census Requirements 
     in the Year 2000 and Beyond.
       National Academy of Sciences Panel to Evaluate Alternative 
     Census Methods.
       American Statistical Association.
       American Sociological Association.
       Council of Professional Associations on Federal Statistics.
       National Association of Business Economists.
       Association of University Business and Economic Research.
       Association of Public Data Users.
       Decision Demographics.
  Mr. HASTERT. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
Ohio [Ms. Pryce].
  Ms. PRYCE of Ohio. Mr. Chairman, I rise today in strong opposition to 
the Mollohan amendment on census sampling, and in support of the 
provision offered by the gentleman from Illinois [Mr. Hastert].
  As a former judge I want to stress that sampling is neither a 
Republican issue nor a Democratic issue. It is a legal issue and a 
constitutional issue which ultimately should and must be settled by the 
U.S. Supreme Court, not a politicized commission as proposed by the 
Mollohan amendment. By defeating the Mollohan amendment, we will help 
clear the way for enactment of the Hastert provision.
  Now, here is what the Hastert provision does. First, it recognizes 
that the legislative and executive branches have reached an 
unresolvable impasse on the subject of sampling and statistical 
adjustment. Then it asks the judicial branch to fulfill the role 
envisioned for it by the Founding Fathers in the Constitution, and step 
in and decide this dispute through the court system. Then it protects 
the taxpayer by getting a court decision on the legality of sampling 
and statistical adjustment before billions of taxpayer dollars are 
spent and potentially wasted.
  Now, just like a judge would issue a temporary restraining order to 
prevent further harm in a dispute between two private parties, the 
Hastert provision would move to protect the taxpayers from potential 
harm by putting a temporary hold on funding for sampling while the 
court hears the case. Once the Supreme Court has reached a final 
decision, the temporary funding hold is removed and the Census Bureau 
will be free to spend money in compliance with the law as determined by 
the court.
  Mr. Chairman, I urge my colleagues to defeat the Mollohan amendment 
and to allow the enactment of the Hastert provision. Then we will 
count. We will count the poor, we will count the minorities, we will 
count all Americans, as is required by the Constitution.
  Mr. MOLLOHAN. Mr. Chairman, I am pleased to yield 3 minutes to the 
distinguished gentlewoman from Maryland [Mrs. Morella].
  Mrs. MORELLA. Mr. Chairman, I thank the gentleman for yielding me 
this time.
  Mr. Chairman, I rise today in strong support of the Mollohan-Shays 
amendment. The Census Bureau needs the full $381.8 million appropriated 
in fiscal year 1998 to prepare for the Census 2000. Fencing off all but 
$100 million would jeopardize critical components of census 
preparation, including the dress rehearsal and the preparation of the 
long form.
  As Members of Congress, we depend on the accurate information 
provided by the census to give us insight into our changing communities 
and constituencies. If this amendment is not passed and data is not 
collected in Census 2000, we will lose the only reliable and nationally 
comparable source of information on our population. Both the private 
and public sectors, including State, county and municipal agencies, 
educators and human service providers, corporations, researchers, 
political leaders, and Federal agencies rely on the census long form.
  The Mollohan-Shays amendment is critical if we are to prevent the 
mistakes that were made in 1990. I served on the Committee on Post 
Office and Civil Service during the 1990 census and I saw firsthand the 
mistakes that were made.
  According to the GAO, the 1990 census got 10 percent of the count 
wrong. Over 26 million people were missed, double-counted, or counted 
in the wrong place. Let me quote from the GAO Capping report on the 
1990 census, which makes it clear that a straight count will not work. 
GAO reported that, ``the current approach to taking the census needs to 
be fundamentally reassessed.''
  ``The current approach to taking the census appears to have exhausted 
its potential for counting the population cost-effectively,'' et 
cetera.
  ``Specifically, the amount of error in the census increases 
precipitously as time and effort are extended to count the last few 
percentages of the population.''
  There is, my friends, strong scientific evidence that sampling will 
result in the most accurate census possible. The experts agree that 
spending more money to go door-to-door will result in errors as large 
or larger than 1990, and that the 2000 census will be more accurate for 
all congressional districts than 1990, 19 times more accurate for the 
Nation.
  As a result of the GAO evaluation and bipartisan direction from 
Congress, the Census Bureau turned to the National Academy of Science 
for advice. The first panel said, ``physical enumeration or pure 
`counting' has been pushed well beyond the point at which it adds to 
the overall accuracy of the census.''
  That panel went on to recommend a census that started with a good 
faith effort to count everyone, but then truncate physical enumeration 
and use sampling to estimate the characteristics of the remaining 
nonrespondents.
  Following these recommendations, the Census Bureau announced in 
February of 1995 a plan for the 2000 census which makes an 
unprecedented attempt to count everyone by mail, followed by door-to-
door enumeration until reaching 90 percent of the households in each 
census tract. A sample of households is then used to estimate the last 
10 percent.
  I know my time has expired. A whole list of scientific organizations 
agree with it. It will save money, and it will be an accurate count.
  Mr. HASTERT. Mr. Chairman, I yield myself 15 seconds just to inform 
the gentlewoman from Maryland that the Census Bureau gets all of the 
money that they asked for, it is not fenced off, and so she is 
misinformed.
  Mr. Chairman, I yield 6 minutes to the distinguished gentleman from 
Kentucky [Mr. Rogers], chairman of the subcommittee.

                              {time}  1830

  Mr. ROGERS. Mr. Chairman, I thank the gentleman for yielding me the 
time.
  Mr. Chairman, I rise in opposition to the Mollohan amendment and in 
support of the provisions in the bill regarding the 2000 census. While 
I certainly respect and appreciate the efforts of my distinguished 
ranking member, the gentleman from West Virginia [Mr. Mollohan], and I 
know that his intention is good, his amendment fails to address any of 
the real issues surrounding the 2000 census.
  My colleagues, this is one of the most important issues that will 
come before the Congress. It is the Congress' constitutional 
responsibility to ensure that an actual enumeration of the population 
is conducted once every 10 years. Those are the words in the 
Constitution.
  There is no other activity conducted by the Federal Government that 
has more of an impact on the daily lives of each and every one of our 
constituents. The census is used for everything, from ensuring that our 
constituents' constitutional right of one person-one vote is upheld, to 
determining how Federal dollars are apportioned to our communities.
  Many of us are all too familiar with the consequences of a disputed 
census. In 1990, the American taxpayer spent $2.6 billion on the 1990 
census. What did we get? A botched census, a census whose results were 
litigated for most of the decade, a census whose results will forever 
be questioned. We cannot afford another disaster like 1990. But that is 
exactly where we are headed if the Congress does not accept its 
responsibility

[[Page H8227]]

to ensure that the 2000 census is above reproach.
  The administration's plan for the 2000 census represents the most 
radical departure from the manner in which the census has been 
conducted for the last 200 years. Serious doubts have been raised about 
whether the administration is planning a fair census, a legal census, a 
constitutional census. Many of us believe the administration plans are 
not fair, and that they will not result in a more accurate census.
  Why? For starters, we have already seen how dangerous an error-prone 
statistical manipulation can be in the census. In 1990, over the 
objections of the Census Bureau ``experts'', the Secretary of Commerce 
refused to adjust the census numbers using statistics because he 
thought they were inaccurate. He was right. Years after the fact the 
same Census Bureau ``experts'' discovered their statistically 
manipulated numbers had overestimated the number of people missed by 
millions, and because of a computer glitch would have mistakenly caused 
Pennsylvania to lose a seat in this body.
  Just last month, the Census Bureau had to retract their own report 
extolling the accuracy of their census plans because a computer glitch 
underestimated the error rates. But even more importantly, unlike 1990, 
we are not even going to have an actual count of the population. Why? 
Because the administration only wants to count 90 percent of us, and 
then guess the rest. So how will we ever know what the actual count 
was, and how will we ever know if statistical adjustment is more 
accurate? The answer is, we never will. The administration expects us 
to trust the experts, the same ones that recommended we use faulty 
numbers to adjust the 1990 census.
  But even more fundamental to this debate is the question of whether 
the administration's plans are legal and constitutional. Many of us 
believe they are not. We can debate those issues all day and night. It 
would not matter, because only the courts can decide that, and the 
courts will decide that, one way or the other. The only question is, 
when.
  Under the bill, we say, have the courts resolve the questions now 
before we spend $4 billion on a census that is likely to be held 
illegal or unconstitutional. Does the Mollohan amendment address those 
questions? No. Even worse, it strikes the very provisions in the bill 
that would ensure the courts answer these questions before the fact.
  In fact, instead of addressing any of these serious questions 
surrounding the census, the Mollohan amendment avoids them entirely, 
and instead tries to say that the only concern surrounding the census 
is the threat of political manipulation. That is just not the case, 
though certainly, given the track record of this administration, I can 
understand how people would be so concerned.
  Even if it were the only concern, the Mollohan amendment is not the 
answer. Why? Because the commission has neither the expertise nor the 
power to oversee the administration's complicated, convoluted census 
2000.
  If Members want to know how well an oversight commission works, we 
have a recent example, the Teamsters election. The taxpayers spent $21 
million on an oversight board for the Teamsters election, and what was 
the result? They threw out the election and they are going to start all 
over again, I guess. They are going to ask us to oversee it a second 
time. They had better ask us real hard about that. If we need any 
evidence about whether an oversight commission can protect the census, 
look to the Teamsters. We will spend $4 billion on the census, and then 
we will have to start all over again in 2001.
  It is the Congress' duty to oversee the census. It is our duty to 
ensure that it is fair, that it is legal, and that it is 
constitutional. The Mollohan amendment would have us abdicate that 
constitutional responsibility.
  At a time when the public's faith in the institutions of government 
is at an all-time low, we have a duty to ensure that the 2000 census is 
above reproach. Make no mistake about it, the very integrity of the 
census is at stake here, not to mention a multibillion dollar taxpayer 
investment.
  Mr. Chairman, I urge rejection of the Mollohan amendment.
  Mr. MOLLOHAN. Mr. Chairman, I yield such time as she may consume to 
the distinguished gentlewoman from California [Ms. Roybal-Allard].
  (Ms. ROYBAL-ALLARD asked and was given permission to revise and 
extend her remarks.)
  Ms. ROYBAL-ALLARD. Mr. Chairman, I thank the gentleman for yielding 
time to me.
  I rise in strong support of the Mollohan-Shays amendment.
  Mr. MOLLOHAN. Mr. Chairman, I yield 2 minutes to the distinguished 
gentleman from Massachusetts [Mr. Frank].
  Mr. FRANK of Massachusetts. Mr. Chairman, if what the gentleman who 
just spoke wanted to have happen could happen, I would support it. What 
he said is look, there is a constitutional question here. Let us, 
before anything happens, go to the United States Supreme Court and ask 
them to tell us. They will not do it. There is a core principle of 
American constitutionalism, which conservatives usually adhere to, 
which says they do not issue advisory opinions. The United States 
Supreme Court does not decide until there is a case or controversy, 
defined repeatedly by Justice Scalia, who was quoted only partially on 
one point, as injury in fact.
  We recently had an effort to try to get around that by getting an 
advisory opinion in effect on the line item veto. The Supreme Court 
unanimously said, or almost unanimously said no, you cannot have it. 
What the gentleman from Kentucky is asking for is impossible. What he 
says is, we will go to court.
  But the Supreme Court will not decide it. Standing is a core 
conservative principle. I thought the gentleman's amendment was written 
by William O. Douglas. I thought William O. Douglas had channeled 
himself through to somebody on the other side, because he is the great 
liberal justice who says there is a constitutional question, let me at 
it, I will handle it. What in fact the conservatives said is, no. You 
talk about judicial activism, this is a monument to judicial activism. 
This is a constitutional question. We will ask the United States 
Supreme Court for an advisory opinion. It will not give it to you. It 
requires an injury in fact.
  Here is how you define standing. Here is who could bring this 
lawsuit. Any resident of a State, resident, not even a citizen, any 
resident of a State whose congressional district could, not was, could, 
in fact be changed. If you thought that your district might gain under 
this, you could go in and get an advisory opinion.
  The Supreme Court will not do it. No one familiar with this 
jurisprudence thinks remotely that you could force this. If it were 
possible, it would be a good way. But remember, we said, we will have 
to deal with these first through the electoral process and the 
political process, and only after the fact can you go to court. Who 
said that? That was done by conservatives to keep the non-elected 
judiciary from being too intrusive. What the gentleman's amendment does 
is to reverse that principle of judicial restraint.
  Mr. HASTERT. Mr. Chairman, I yield 2 minutes and 40 seconds to the 
gentleman from Georgia [Mr. Kingston].
  Mr. KINGSTON. Mr. Chairman, there is a story of a very learned doctor 
of theology, a distinguished minister, who was walking through the park 
one day. He sees a guy who is kind of an itinerant of sorts, and he is 
reading the Book of Revelations. The doctor of theology says to him, in 
a condescending, intellectual way, my good man, ``Do you have any idea 
at all of what you are reading in the Book of Revelations?'' To which 
the guy said, ``No, I can't say I understand every little bit of it.'' 
And he says, ``Then sir, why are you reading it?'' He said, ``Because I 
know how it ends.''
  What I am saying, Mr. Chairman, is I do not believe this is a debate 
of pointy-headed intellectual bean-counters. I think this is a debate 
about common sense. Here is how I understand this issue. Under the 
normal U.S. census procedure, you go to a house. You ask how many folks 
live there. Three. You go to the second house. How many live there? 
Seven. How many live in the third house? Six. You write down three, 
seven, six. You come up with 16.
  Now, under the Democratic samplematics, you are doing it a little 
more creatively. You go to the first house and count three, to the 
second

[[Page H8228]]

house and count seven, and at the third house you go to the drugstore 
and get yourself a Coca-Cola, and you sample about 20 people there. 
Then, depending on how many you need, you say, in total, we got maybe 
15 to 25 people, depending on how many the folks need back in the 
office, and that is the count.
  Now, let us say that is how this thing works, in layman's terms, so I 
can understand it. Now think about it in other potential applications. 
We may want to take a second look at this as Members of Congress. What 
would be some other potential sampling applications?
  How about balancing your checkbook? No problems with overdrafts. How 
about adjusting your income taxes; you know, sending it to the IRS, and 
when they start complaining, there is a lot of IRS passion going on 
these days, you can say, ``Hey, look, I just used sampling to send you 
what I owed you.''
  That has often handicapped us. I will just say that a lot of people 
sample on their golfing already. On the SAT, for those Members with 
teenaged kids trying to get into college, sample up the SAT score, 
1,500. Speeding tickets: ``Officer, I was going about 100, but I was 
sampling. Just give it to me at 55.'' That is what this is about.
  Mr. Chairman, the 14th Amendment of the United States says it real 
easy for someone like me and a lot of other folks, that counting the 
whole number of persons in each State is the way to do your sampling.
  Mr. MOLLOHAN. Mr. Chairman, I am pleased to yield 2 minutes to the 
distinguished gentleman from North Carolina [Mr. Watt].
  Mr. WATT of North Carolina. Mr. Chairman, I thank the gentleman for 
yielding me the time.
  Mr. Chairman, I do not believe there is a Member of this House who 
over the last 5 years has risen in defense of the United States 
Constitution more than I have. I honestly would tell the Members if I 
thought statistical sampling was unconstitutional, regardless of the 
political consequences. I would be rising in support of the 
Constitution, in defense of the Constitution.
  I think this whole constitutional argument is a bogus argument, 
however, and it fails to read the entire sentence in Article I, Section 
2, clause 3 of the Constitution, because that section of the 
Constitution requires an actual enumeration, but then it goes on to 
say, ``. . .in such manner as the Congress shall by law direct.'' And 
all of these gentlemen who have gotten up and talked about requiring a 
head count seem to be ignoring the second part of the sentence.
  Every single Justice Department that has opined on this issue, the 
Bush Justice Department, the Carter Justice Department, the Clinton 
Justice Department, have all said that statistical sampling is fine 
under the Constitution. Every single court that has addressed this 
issue has said that statistical sampling is acceptable under the 
Constitution.

                              {time}  1845

  The Federal District Court, Eastern District of New York, said it is 
no longer novel or in any sense new law to declare that statistical 
adjustment of the census is both legal and constitutional because 
article I, section 2, requires the census to be as accurate as 
practical. The Constitution is not a bar to statistical sampling. This 
is a bogus argument that my colleagues are using. Statistical sampling 
is constitutional.
  I rise in support of the amendment.
  Mr. HASTERT. Mr. Chairman, I yield 2 minutes to the gentleman from 
Iowa [Mr. Latham], a member of the subcommittee, who is well familiar 
with bean counters.
  Mr. LATHAM. Mr. Chairman, I guess being in the soybean business, we 
do count a few beans there.
  But I think we have to look at what this debate really is all about. 
We are talking about the census, but really what it gets down to is 
money and power. It really gets down to the debate of whether we want 
those things distributed in a fair and honest manner or if we want 
someone possibly with political motivation to guess at where those 
things go.
  No. 1, with the money, as everyone here knows, and I do not know if 
the folks at home know that where the Federal dollars are distributed 
is based on the count, would we rather have an actual real count to 
know that we are getting our share of Federal dollars or would we like 
a bureaucrat here in Washington to guess at it?
  As far as power, it has to do with how many Representatives we have 
from our States. If our State is kind of on the bubble here as to 
whether we are going to lose a seat or gain a seat, do we want that 
determined by an actual real count or do we want a bureaucrat here in 
Washington to make that determination for us and mute our voices? It is 
simply wrong to go that route.
  I do not necessarily say that there is going to be politics involved 
in this census or this guessing that we are proposing do here, but let 
us look at the record. Has this administration politicized any other 
departments in government? Look at the FBI. There are 900 files of 
private citizens for political reasons in the White House today. They 
brought in over a million citizens last year for the election and did 
not check the background, for political reasons, of 180,000 of them. 
There are 30,000 convicted felons in this country because they 
politically wanted to get more people registered to vote.
  Would they politicize the census? What do my colleagues think? We 
need an honest, fair, real, legal, and constitutional census, and that 
means to count real people.
  Mr. MOLLOHAN. Mr. Chairman, I yield myself 45 seconds to respond to 
the gentleman, if he would stay at the podium.
  I would just like to assure the gentleman, that is precisely the 
reason. That is the one argument against the census that cannot be 
refuted by fact, because it is based upon suspicion. That is why we 
created this oversight board, which is composed of former Presidents, 
people who have absolute credibility, to give the census credibility, 
because this kind of a debate that the gentleman just engaged in, in 
and of itself, is the greatest underminer of public confidence.
  Also, with regard to the efficacy of sampling, our own Speaker 
Gingrich must have believed in the efficacy of sampling because on 
April 30, 1991, he wrote, in part, to the Secretary of Commerce, I 
quote, I respectfully request that the census numbers for the State of 
Georgia be readjusted to reflect the accurate population of the State 
so as to include the over 100,000 which were not previously included.
  Mr. Chairman, I yield 2 minutes to the distinguished gentleman from 
Texas [Mr. Stenholm].
  (Mr. STENHOLM asked and was given permission to revise and extend his 
remarks.)
  Mr. STENHOLM. Mr. Chairman, though much of the debate on correcting 
the undercount of the census is centered around the number of people 
not counted in urban areas, as one who represents a very rural 
district, I want to highlight the fact that people in rural areas are 
being missed as well. In fact, some of our rural areas are undercounted 
to a greater degree than the entire country.
  According to the Census Bureau, the net undercount for the Nation in 
1990 was 1.6 percent, while rural areas were undercounted at a rate of 
5.9 percent. I want to emphasize that accuracy is critical. Let there 
be no disagreement on that as we prepare for the 2000 census. The 
Census Bureau should form early and active partnerships with State and 
local governments so that these governments will have an early 
opportunity to review census address lists and maps for their area.
  This amendment will remove the restrictive language included in the 
bill and allow the Census Bureau to continue to plan for the 2000 
census. Their proposal, which is supported by scientists and 
statistical experts, should improve accuracy and save costs.
  It is fascinating to sit here and listen to colleague after colleague 
argue against the best science available. I have taken to this well day 
after day after day, arguing that we should use the best science 
available, whether we are talking about environmental issues, food 
safety issues, or census issues. But tonight in this debate, we are 
being selective as to which science we should use. I find this a 
fascinating argument to listen to.
  I am convinced, absolutely convinced, that statistical sampling is 
the best method to get an accurate census,

[[Page H8229]]

and I urge my colleagues to listen to this debate and to listen to 
those who are saying that only some science is good and we will be 
selective in which we choose to agree to. Statistical scientists say 
that sampling will help us get an accurate count. Is that not what we 
all should really be for?
  I urge my colleagues to support the Mollohan-Shays amendment.
  Mr. HASTERT. Mr. Chairman, I yield 1 minute to the gentleman from 
Florida [Mr. Miller]
  Mr. MILLER of Florida. Mr. Chairman, I rise in opposition to the 
amendment offered by the gentleman from West Virginia and in opposition 
to the use of sampling.
  I am a former statistics professor. I taught statistics at both the 
undergraduate and graduate level at several universities. I have 
respect for sampling, but sampling is used when you do not have enough 
time or money. What you really want to have is census information, 
statistics. When you use sampling, you have bias. You have nonsampling 
bias, and you have sampling bias.
  In my first lecture on statistics both at the graduate level and the 
undergraduate level, I used to use this book, still available to buy in 
the book store. It is ``How To Lie With Statistics.''
  Statistics can be manipulated in a variety of ways that can be 
legitimately defended. I do not trust statistics. I teach my students 
to be suspicious of statistics, to be cautious of the use of 
statistics. I used to make the statement, tell me the point you want me 
to prove, and I will prove it with statistics, because it can be done.
  I know all the statisticians say sampling is great. Statisticians 
would not have a job if we did not have sampling. That is what 
statistics is based on. Statisticians are biased to start with.
  I think we are doing a good job. What we need to do is do a good 
census. Dr. Riche is moving in that direction. Let us look at the 
examples of what took place in Milwaukee and what took place in 
Cincinnati. We can do a good census. Let us do the job right and not 
play around with sampling.
  Mr. MOLLOHAN. Mr. Chairman, I yield 1\3/4\ minutes to the gentlewoman 
from Florida [Mrs. Meek].
  (Mrs. MEEK of Florida asked and was given permission to revise and 
extend her remarks.)
  Mrs. MEEK of Florida. Mr. Chairman, first of all, I do not trust 
statistics any more than the rest of my colleagues. But I trust even 
less the belief that everyone is going to be counted fairly.
  If we look at the history of this, we have never had an accurate 
count. The under-count has been shown more in African Americans than it 
has in any other group. Do we want this repeated? Then we are sending a 
message that we do not want a fair census count.
  This country does not look like it did in 1990. You better look 
around and see that it is different. You see more minorities. There 
will be even more. So you may as well learn that you have to count them 
accurately. You cannot count them accurately by the kinds of 
enumeration that you are doing or that you expect to do.
  So it tells me that the issue is that because you know there are more 
of them than there are of you, that you do not want an accurate count. 
They are going to be there. They are going to be under the bridges. 
They are going to be in the homeless shelters. There are going to be 
people who do not return those things to the census.
  All I am saying to you is, it is fruitless, it is crazy, it is a 
waste of money, but you would rather do that politically and for power 
than to go to a sampling which the Mollohan amendment is asking us to 
do. You would rather take that useless method because you do not want 
to count everybody. You want to go back to the time when there was a 
serious undercount.
  It will repeat itself. It was in 1990, as you see from this chart. It 
is going to be in the year 2000, because you are going to insist on 
counting every head.
  Mr. Chairman, they cannot enumerate and count every head because they 
are not going under the bridges, they are not going on the highways and 
byways of this country to find these little people and count them. If 
that is the way you want it, then you will not support the Mollohan 
amendment.
  I support the Mollohan amendment because it is fair. African-
Americans will be counted. It has got to be done.
  Mr. HASTERT. Mr. Chairman, I yield 2 minutes to the distinguished 
gentleman from Illinois [Mr. Hyde].
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Mr. Chairman, this is a fascinating debate. I listened to 
my good friend, the gentleman from Texas [Mr. Stenholm], talk about the 
scientists. I do not think you have to be a scientist, rocket or 
otherwise, to read the plain language of the Constitution: ``The actual 
enumeration,'' those are not tough words, ``shall be made within 3 
years after the first meeting of the Congress.''
  And then a constitutional scholar, the gentleman from North Carolina 
[Mr. Watt], brought in the entire text. He said, ``in such a manner as 
they,'' meaning Congress, ``shall by law direct.''
  Well, you cannot by law amend the Constitution. You cannot pass a 
statute and erase the first three words of article I, ``the actual 
enumeration.''
  It is a stretch to ask us to trust the sampling of the population to 
an administration that has shown, at best, a reckless disregard for the 
letter and the spirit of the law.
  It goes beyond the Constitution. We have a statute. Title 13, section 
195, says, ``Except for the determination of population for purposes of 
apportionment of Representatives in Congress among the several States, 
the secretary shall, if he considers it feasible, authorize the use of 
the statistical method.'' It specifically excludes counting by sample, 
by guess, a determination, ``for the purposes of apportionment.''
  We want to count everybody. If they are under the bridges, go down 
there and count them. You are getting paid to count them. Why is that 
less accurate than guessing how many people are under the bridge? Your 
administration does not exactly wear a T-shirt saying, ``trust me,'' 
and engender an awful lot of confidence to have you count how many 
people there are and where they are and what the districts shall be in 
the next 10 years.
  The CHAIRMAN. The Committee will rise informally in order that the 
House may receive a message.
  The SPEAKER pro tempore (Mr. Miller of Florida) assumed the chair.

                          ____________________