[Congressional Record Volume 144, Number 11 (Thursday, February 12, 1998)]
[Senate]
[Pages S790-S791]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   AUTHORIZING PRODUCTION OF SENATE DOCUMENTS BY SENATE LEGAL COUNSEL

  Mr. COVERDELL. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Senate Resolution 178, 
submitted earlier today by Senators Lott and Daschle.
  The PRESIDING OFFICER. The clerk will report the resolution.
  The bill clerk read as follows:

       A resolution (S. Res. 178) to authorize production of 
     Senate documents and representation by Senate Legal Counsel 
     in United States f.u.b.o. Kimberly Industries, Inc., et al. 
     v. Trafalgar House Construction, Inc., et al.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the resolution?
  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. LOTT. Mr. President, this resolution concerns a contract dispute, 
pending as a civil case in the United States District Court for the 
Southern District of West Virginia, between a subcontractor and the 
prime contractor constructing a Department of Labor Job Corps facility 
in Charleston, West Virginia. Prior to the litigation, the 
subcontractor, a West Virginia firm, sought assistance from Senator 
Byrd's and Senator Rockefeller's offices in contacting the Labor 
Department regarding the firm's difficulties over payment for its work 
on the project. In the civil lawsuit that has ensued between the two 
contracting firms, the prime contractor has now requested that the 
offices of Senator Byrd and Senator Rockefeller produce from their 
files copies of documents concerning the West Virginia Job Corps 
project.
  The constituent subcontractor firm has advised, through the Senate 
Legal Counsel, that it has no objection to the release of its 
correspondence with the Senator's offices. Thus, the usual principle of 
constituent confidentiality is not implicated here. However, as is 
often the case when a constituent reports difficulties in dealing with 
an executive agency, Senator Byrd's office and Senator Rockefeller's 
office have advised that their constituent's communications regarding 
this matter informed the Senators' consideration of potential 
alternatives to address the problem, including undertaking legislative 
or oversight action regarding the Labor Department's construction 
program and procurement procedures. In

[[Page S791]]

order to protect Senators' ability to undertake their legislative 
responsibilities free from interference and questioning, the Speech or 
Debate Clause of the Constitution privileges from compelled production 
in court proceedings materials from Senators' files relating to the 
legislative sphere.
  Nevertheless, Senators Byrd and Rockefeller are willing to provide to 
the parties in this case copies of documents reflecting their offices' 
role, to the extent that they may properly do so without impairing the 
important interests underlying the Senate's constitutional privileges. 
In view of the subcontractor's lack of objection, the Senators also 
have no objection to furnishing copies of their correspondence with the 
subcontractor. In addition, both Senators would like to provide the 
records of their communications with the Labor Department regarding 
this matter. Consistent with the overriding importance that the 
Constitution recognizes in fostering unimpeded communications between 
Senators and their staffs concerning matters of potential legislative 
action, the Senators will not waive their legislative privileges for 
their offices' internal records and work product.
  Accordingly, this resolution would authorize Senator Byrd's and 
Senator Rockefeller's offices to produce documents in this case, except 
where a privilege or objection should be asserted. The resolution also 
would authorize the Senate Legal Counsel to represent employees in 
Senator Byrd's and Senator Rockefeller's offices, should such 
representation become necessary to protect the Senate's privileges in 
connection with this matter.
  Mr. COVERDELL. Mr. President, I ask unanimous consent that the 
resolution be agreed to, the preamble be agreed to, the motion to 
reconsider be laid upon the table, and that any statements relating to 
the resolution appear at this point in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 178) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, is as follows:

                              S. Res. 178

       Whereas, in the case of United States f.u.b.o. Kimberly 
     Industries v. Trafalgar House Construction, Civil Case No. 
     97-0462, pending in the United States District Court for the 
     Southern District of West Virginia, documents have been 
     requested from the offices of Senator Robert C. Byrd and 
     Senator John D. Rockefeller IV;
       Whereas, by the privileges of the Senate of the United 
     States and Rule XI of the Standing Rules of the Senate, no 
     evidence under the control or in the possession of the Senate 
     may, by the judicial process, be taken from such control or 
     possession but by permission of the Senate;
       Whereas, pursuant to sections 703(a) and 704(a)(2) of the 
     Ethics in Government Act of 1978, 2 U.S.C. Sec. Sec.  288b(a) 
     and 288c(a)(2), the Senate may direct its counsel to 
     represent employees of the Senate with respect to any 
     subpoena, order, or request for evidence relating to their 
     official responsibilities;
       Whereas, when it appears that evidence under the control or 
     in the possession of the Senate may promote the 
     administration of justice, the Senate will take such action 
     as will promote the ends of justice consistently with the 
     privileges of the Senate: Now, therefore, be it
       Resolved That the offices of Senator Byrd and Senator 
     Rockefeller are authorized to produce documents in the case 
     of United States f.u.b.o. Kimberly Industries v. Trafalgar 
     House Construction except concerning matters for which a 
     privilege or objection should be asserted.
       Sec. 2. That the Senate Legal Counsel is authorized to 
     represent employees of the Senator Byrd and Senator 
     Rockefeller in connection with any subpoena or request for 
     documents or testimony in United States f.u.b.o. Kimberly 
     Industries v. Trafalgar House Construction.

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