[Congressional Record Volume 144, Number 46 (Thursday, April 23, 1998)]
[House]
[Pages H2242-H2286]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      JUDICIAL REFORM ACT OF 1998

  Mr. GOSS. Mr. Speaker, by direction of the Committee on Rules, I call 
up House Resolution 408 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 408

       Resolved, That at any time after the adoption of this 
     resolution the Speaker may, pursuant to clause 1(b) of rule 
     XXIII, declare the House resolved into the Committee of the 
     Whole House on the state of the Union for consideration of 
     the bill (H.R. 1252) to modify the procedures of the Federal 
     courts in certain matters, and for other purposes. The first 
     reading of the bill shall be dispensed with. Points of order 
     against consideration of the bill for failure to comply with 
     section 303(a) of the Congressional Budget Act of 1974 are 
     waived. General debate shall be confined to the bill and 
     shall not exceed one hour equally divided and controlled by 
     the chairman and ranking minority member of the Committee on 
     the Judiciary. After general debate the bill shall be 
     considered for amendment under the five-minute rule. It shall 
     be in order to consider as an original bill for the purpose 
     of amendment under the five-minute rule the amendment in the 
     nature of a substitute recommended by the Committee on the 
     Judiciary now printed in the bill, modified by striking 
     section 9 (and redesignating succeeding sections 
     accordingly). Each section of that amendment in the nature of 
     a substitute shall be considered as read. Points of order 
     against that amendment in the nature of a substitute for 
     failure to comply with clause 7 of rule XVI or section 303(a) 
     of the Congressional Budget Act of 1974 are waived. During 
     consideration of the bill for amendment, the Chairman of the 
     Committee of the Whole may accord priority in recognition on 
     the basis of whether the Member offering an amendment has 
     caused it to be printed in the portion of the Congressional 
     Record designated for that purpose in clause 6 of rule XXIII. 
     Amendments so printed shall be considered as read. The 
     chairman of the Committee of the Whole may: (1) postpone 
     until a time during further consideration in the Committee of 
     the Whole a request for a recorded vote on any amendment; and 
     (2) reduce to five minutes the minimum time for electronic 
     voting on any postponed question that follows another 
     electronic vote without intervening business, provided that 
     the minimum time for electronic voting on the first in any 
     series of questions shall be 15 minutes. At the conclusion of 
     consideration of the bill for amendment the Committee shall 
     rise and report the bill to the House with such amendments as 
     may have been adopted. Any Member may demand a separate vote 
     in the House on any amendment adopted in the Committee of the 
     Whole to the bill or to the amendment in the nature of a 
     substitute made in order as original text. The previous 
     question shall be considered as ordered on the bill and 
     amendments thereto to final passage without intervening 
     motion except one motion to recommit with or without 
     instructions.

  The SPEAKER pro tempore (Mr. Ewing). The gentleman from Florida (Mr. 
Goss) is recognized for 1 hour.
  Mr. GOSS. Mr. Speaker, for purposes of debate only, I yield the 
customary 30 minutes to my friend, the distinguished gentleman from 
Ohio (Mr. Hall), pending which I yield myself such time as I may 
consume. During consideration of this resolution, all time yielded is 
for purpose of debate on this subject only.
  Mr. Speaker, House Resolution 408 is an open rule providing for the 
consideration of H.R. 1252, the Judicial Reform Act of 1998. The rule 
provides the customary 1 hour of general debate, equally divided 
between the chairman and ranking minority member of the Committee on 
the Judiciary.
  The rule waives points of order against the consideration of the bill 
for failure to comply with section 303(a) of the Congressional Budget 
Act, which prohibits consideration of legislation providing new budget 
authority, changes in revenues, or changes in the public debt for a 
fiscal year until the budget resolution for that year has been agreed 
to.
  The purpose of that section of the Budget Act is a sound one that we 
generally try to adhere to, keeping the budget process moving forward 
in a commonsense direction, with the budget resolution coming first and 
then allowing for subsequent consideration of the legislation that 
implements the provisions of the budget resolution.
  In this case, however, we are technically required to provide this 
waiver, but our Committee on Rules has also provided a fix for the 
Budget Act problem. We have done that by making in order under this 
rule the amendment in the nature of a substitute recommended by the 
Committee on the Judiciary, modified by striking section 9 of that 
amendment which caused the 303(a) problem and redesignating succeeding 
sections accordingly.
  Section 9 of the amendment specifically deals with the process by 
which cost of living adjustments for Federal judges are implemented. 
The effect of that section would have been to create a new mandatory 
spending category in the budget, something that we tried not to do 
outside the normal congressional budget process.
  Apart from the substance of that issue relating to pay for judges, 
the Committee on Rules has attempted in this rule to preserve the 
integrity of the budget process.
  Mr. Speaker, the rule further provides that each section of the 
amendment in the nature of a substitute shall be considered as read, 
and it waives points of order against that amendment for failure to 
comply with clause 7 of rule XVI prohibiting nongermane amendments, or 
section 303(a) of the Congressional Budget Act, for the reasons I just 
explained.
  The rule accords priority in recognition to Members who have caused 
their amendments to be preprinted in the Congressional Record, assuming 
those amendments are in accordance with the standing rules of the 
House.
  It further provides that the chairman of the Committee of the Whole 
may postpone votes during consideration of the bill and reduce the 
voting time to 5 minutes on a postponed question if the vote follows a 
15-minute vote; and, finally, as is the custom, the rule provides for 
one motion to recommit, with or without instructions. That explains the 
rule.
  Now, Mr. Speaker, with the exception of the technical Budget Act fix, 
this is a very straightforward rule. It is fair, and it is wide open. 
It allows all Members the chance to offer germane amendments and 
conduct thoughtful discussion about a very important subject.
  I strongly support the premise behind this bill, that it is time to 
control judicial activism, the so-called runaway judges on the Federal 
bench. This statement alone is usually enough to generate controversy 
in many circles, and this debate is by no means a simple one, as it 
involves many of the most basic tenets of our democratic system and the 
separation of powers.

                              {time}  1030

  I think we could all come up with anecdotal evidence that there have 
been problems within the Federal judiciary with judges exceeding their 
charter and authority. The Committee on the Judiciary has, in my view, 
put forth a responsible product that deals with these problems by 
focusing on specific practices within the Federal courts that together 
constitute a real threat to the rights of citizens and the prerogatives 
of this Congress.
  In my view, this legislation constitutes a measured and carefully 
justified response to legitimate problems. It is not simply throwing 
down the gauntlet. It is coming up with responsible solutions, which we 
will have ample opportunity to debate under an open rule.
  I applaud the gentleman from Illinois (Mr. Hyde), and the 
subcommittee

[[Page H2243]]

chairman, the gentleman from North Carolina (Mr. Coble) for their work 
on this bill. Still, I know that many Members have concerns about 
specific provisions of the legislation. Those Members will have their 
opportunity to air their concerns and propose alterations during the 
open debate and amendment process established by this rule.
  I urge support for the rule and the underlying bill. I look forward 
to a lively and informative debate.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HALL of Ohio. Mr. Speaker, I yield myself such time as I may 
consume. I want to thank my colleague for yielding me the time.
  This is an open rule. It will allow for full and fair debate on H.R. 
1252, which is the bill that modifies certain procedures of the Federal 
courts.
  As my colleague from Florida described, this rule provides for 1 hour 
of general debate equally divided and controlled by the chairman and 
the ranking minority member of the Committee on the Judiciary. The rule 
allows amendments under the 5-minute rule, which is the normal amending 
process in the House. All Members on both sides of the aisle will have 
the opportunity to offer amendments.
  Judicial decisions that force government action by their nature are 
unpopular. If those actions were popular, then the legislature and the 
administrations would have already taken them. Some of those unpopular 
decisions have resulted in the protection of our health, safety and 
civil rights. In recent years, some judges have assumed broad powers 
traditionally reserved for the legislative and the executive branches 
of State and local government. There is merit in some of the criticism 
of these actions when the result is an antigovernment backlash that 
weakens support for government.
  But if this is a real problem, then the answer is really not this 
bill. I think the bill threatens to undermine the independence of the 
Federal judiciary and reduce efficiency. The Attorney General will 
recommend to the President that he veto the bill if it is passed in its 
current form. Mr. Speaker, even though the bill is flawed, there is 
nothing wrong with this rule. It is open. It should be supported. I 
support it.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GOSS. Mr. Speaker, I yield myself such time as I may consume.
  May I inquire of my colleague through the Chair if he has any 
speakers? We have none, and we would just as soon get on with the 
debate, and yield the balance of the time, if that fits with the 
pattern from the other side.
  Mr. HALL of Ohio. Mr. Speaker, will the gentleman yield?
  Mr. GOSS. I yield to the gentleman from Ohio.
  Mr. HALL of Ohio. Mr. Speaker, I had expected two speakers, but they 
have not shown up. Therefore, I will yield back the balance of my time.
  Mr. GOSS. Mr. Speaker, I would be very happy to afford the gentleman 
an extra minute or so if he is aware that those Members are coming.
  Mr. HALL of Ohio. I am not aware. I was just asked, before we 
started, they asked to speak on it. They have not arrived.
  Mr. FRANK of Massachusetts. Mr. Speaker, will the gentleman yield?
  Mr. GOSS. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. Mr. Speaker, I will be managing the bill 
on our side. I think Members will have general debate. There will be an 
hour of general debate that is not going to be overfilled with requests 
for time. I think they can be accommodated.
  Mr. GOSS. Reclaiming my time, if it is my time, I understand, and we 
have no speakers, and we are going to yield back in about a minute, and 
call for the question. We are not intending to call for a recorded 
vote. We believe that it is an open rule, and there is no need to do 
that.
  We also agree with the distinguished gentleman from the Commonwealth 
of Massachusetts that there is ample debate opportunity today because 
of this very fair open rule that we have crafted. We are certainly 
looking forward to that debate, and would not want to put any 
impediment to it. Unfortunately, we are not quite logistically prepared 
to begin the debate.
  Mr. FRANK of Massachusetts. Mr. Speaker, if the gentleman will 
continue to yield, I thank the gentleman. I thought I would help him 
because he seems to be in no great hurry. We are not waiting for the 
Speaker to come back from Florida again, are we, like yesterday?
  Mr. GOSS. Reclaiming my time, Mr. Speaker, I am delighted that the 
gentleman brought the Speaker's trip to Florida up. It shows the 
outreach that we have in this House to go to the important States in 
our Nation, Florida being the fourth most populace State, and a place 
where we will all go sooner or later, which we are very proud to 
represent, those of us who are there now. I believe the Speaker has 
returned from Florida, and has done brilliant things there.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I come before you today to 
speak to you about an important rule on an important piece of 
legislation. I am pleased that this rule is an open rule and that both 
Democrats and Republicans are able to come together on the floor of the 
House and offer reasonable common sense amendments that improve this 
bill. However, I am disturbed that the judicial pay raise amendments 
were not made a part of this rule. The Federal Judges do alot more than 
just come to work. They interpret the law and preserve justice. 
Increasing Federal judicial compensation is important because the 
Federal Judiciary is composed of men and women who give up alot of 
money to work in the public sector. We all know that they give up alot 
for this special type of public service and they should be justly 
compensated for it. I have an amendment that was made in order. This 
amendment would permit a federal court to enter an order restricting 
the disclosure of information obtained through discovery or an order 
restricting access to court records in a civil case only after making a 
finding of fact that such order would not restrict the disclosure of 
information which is relevant to the protection of public health and 
safety. I am glad that this rule includes my amendment but it should 
have included amendments that improve and increase Federal judicial 
compensation.
  Mr. Speaker, I yield back the balance of my time, and I move the 
previous question on the resolution.
  The previous question was ordered.
  The resolution was agreed to.
  A motion to reconsider was laid on the table.
  The SPEAKER pro tempore (Mr. Knollenberg). Pursuant to House 
Resolution 408 and rule XXIII, the Chair declares the House in the 
Committee of the Whole House on the State of the Union for the 
consideration of the bill, H.R. 1252.
  The Chair designates the gentleman from California (Mr. Riggs) as 
Chairman of the Committee of the Whole, and requests the gentleman from 
Illinois (Mr. Ewing) to assume the chair temporarily.

                              {time}  1042


                     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 consideration of the bill (H.R. 
1252) to modify the procedures of the Federal courts in certain 
matters, and for other purposes, with Mr. Ewing (Chairman pro tempore) 
in the Chair.
  The Clerk read the title of the bill.
  The CHAIRMAN pro tempore. Pursuant to the rule, the bill is 
considered as having been read the first time.
  Under the rule, the gentleman from North Carolina (Mr. Coble) and the 
gentleman from Massachusetts (Mr. Frank), each will control 30 minutes.
  The Chair recognizes the gentleman from North Carolina (Mr. Coble).
  Mr. COBLE. Mr. Chairman, I yield myself such time as I may consume.
  H.R. 1252, the Judicial Reform Act of 1998, is a restrained but 
purposeful effort to combat specific areas of abuse that exist within 
the Federal judiciary. The gentleman from Illinois (Mr. Hyde), as he 
spoke to the Committee on Rules yesterday, said this bill perhaps goes 
too far for some Members, not far enough for others. But that is not 
unlike much legislation that we consider in this hall.
  Before describing what the bill does, however, let me emphasize what 
it does not do; namely, it will not compromise the independence of the 
Federal judiciary, which is an indispensable attribute for that branch 
of the Federal Government, nor is H.R. 1252 an attempt to influence or 
overturn legal disputes. Above all, we most certainly are not creating 
a novel, more lenient standard of impeachment to remove particular 
judges from the Federal

[[Page H2244]]

bench without cause or to intimidate them with a threat of doing so. 
That said, the Judiciary Reform Act of 1998 is largely an amalgam of 
ideas developed by various Members of Congress that will curtail 
certain abusive practices within our Federal court system.
  Specifically, the bill consists of six procedural changes in 
furtherance of this end. In addition, the four other reforms that will 
improve other matters related to article 3, Federal courts. The six 
core revisions set forth in the bill concern the following matters:
  First, a featured component of the bill was initially developed by 
our colleague and good friend, the late Sonny Bono. It would require 
three judge panels to hear constitutional challenges of State laws 
enacted pursuant to voter referenda. Under current law, a single judge 
possesses the power to invalidate the results of a State-wide 
referendum.
  Second, H.R. 1252 would permit interlocutory or interim appeal of 
class-action certifications championed by the gentleman from Florida 
(Mr. Canady). This provision would enable litigants to a class-action 
suit to appeal a decision certifying a national class prior to the 
conclusion of a trial.
  Currently, defendants may expend a great deal of financial resources 
through trial only to find upon appeal that a class was improperly 
certified at the outset of litigation. Third, the measure infuses 
greater objectivity in the current process by which citizens may 
register complaints against Federal judges for misconduct.
  Present law on the subject is premised on a peer review system by 
judges from the same circuit. Pursuant to the change set forth in this 
bill before us, complaints which do not speak to the merits of a 
decision, or are not otherwise frivolous will be referred to a 
different circuit.

                              {time}  1045

  This means that truly substantive complaints will be more objectively 
reviewed by judges who have no personal ties to the judge who is the 
subject of the complaint. The gentleman from Tennessee (Mr. Bryant) and 
the gentleman from Indiana (Mr. Pease) contributed to this section of 
the bill.
  Fourth, H.R. 1252 would inhibit the ability of Federal courts to 
require States and local municipalities to raise taxes on the affected 
citizenry to pay for projects that the States and municipalities are 
unwilling to fund themselves.
  While a Federal court may possess the technical right under certain 
conditions to devise such a remedy to redress a constitutional harm, we 
have carefully crafted some parameters that will constrain the practice 
of judicial taxation. The gentleman from Illinois (Mr. Manzullo), whose 
district is home to a city which is subject to a judicial taxation 
order, contributed to this portion of the bill.
  Fifth, the gentleman from Florida (Mr. Canady) worked with our former 
colleague Dan Lungren, who presently serves as Attorney General for 
California, to create a procedural right for a litigant to request one 
time only that a different judge be assigned to his or her case. Some 
judges are so possessed of an injudicious temperament or are otherwise 
biased as to warrant this revision.
  Sixth, it is has come to our attention that some Federal judges are 
unalterably opposed to enforcing the death penalty, even to the point 
of dragging their feet on expeditious consideration of habeas corpus 
petitions to forestall execution. Based on comments made by the 
gentleman from Massachusetts (Mr. Delahunt), this section of the bill 
would prevent the chief justice of a circuit from reserving all such 
petitions for one judge on an exclusive basis.
  Mr. Chairman, there are three other items contained in the Judicial 
Reform Act that do not otherwise speak to abusive judicial practices 
but will nonetheless improve the functioning of our Federal courts. 
They are:
  One, the permitted practice of televising proceedings in our Federal 
appellate courts and, for a 3-year period, in our district or trial 
courts, suggested to at the discretion of the presiding judge;
  Second, the expedited consolidation of cases pertaining to complex, 
multi-district disaster litigation;
  And, third, the allowance of an additional 30 days, or a total of 60 
days, for the Office of Personnel Management to appeal adverse 
personnel decisions consistent with appellate procedure for other 
Federal agencies.
  Again, Mr. Chairman, these provisions are straightforward and 
restrained in their application and will assist in promoting equity for 
litigants and taxpayers within the Federal court system. I urge all 
Members to support passage of H.R. 1252.
  Mr. Chairman, I reserve the balance of my time.
  Mr. Chairman, I ask unanimous consent that the bill be open for 
amendment at any point.
  The CHAIRMAN. That request by the gentleman may be made after general 
debate has concluded and the Committee begins the 5-minute rule.
  Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as 
I may consume.
  Let me say, I appreciate the gentleman making the request. Because 
even though it cannot be acted on until the 5-minute rule begins, 
Members who may be interested should know it is our intention to have 
amendments be in order at any point so they do not have to worry about 
a section-by-section reading. I do not believe we have a large number 
of amendments.
  Mr. Chairman, the Subcommittee on Courts and Intellectual Property, 
on which I am pleased to serve with the gentleman from North Carolina 
(Mr. Coble), has a good deal of business which we do in a 
nonideological way and in a nonpartisan way, and I am very proud of 
that. The intellectual property jurisdiction we have is an important 
one, and we have had some judicial reform bills.
  This bill does not, however, conform to that pattern. This is an 
exception in that it is one on which I think we have some fairly sharp 
division, and the reason we have the division I think frankly stems 
from some frustration on the part of some of those on the other side.
  There are people particularly in the very conservative wing of the 
Republican party, which I must say has outgrown wing status. It is now 
at least a wing and a tail and maybe another wing and a couple of 
beaks. They do not like some of the things that the courts do. I 
believe that their problem, however, is not so much with the courts as 
with the Constitution. And there is not a great deal we can do about 
the Constitution. We try.
  We recently have sought on the floor, at least some have sought on 
the floor, to amend the Constitution with great regularity and with 
equal lack of success. The Congress has voted down half a dozen or more 
efforts to change the Constitution. Not being able to change the 
Constitution, the people in the conservative wing of the Republican 
party have decided to demonize it instead and to denounce the judges. 
But there is a great disconnect between the violence of the rhetoric 
and the actuality of the legislation.
  I am going to vote against this bill. I am glad that the President 
plans to veto it if we pass it as-is, although we could make it 
passable under some aspects of the bill which I think are very useful. 
But even if it were to pass, it would have virtually no effect on the 
kinds of things that people complain of.
  In fact, one of the most interesting facts is that, while people on 
the conservative side complain about this bill because they say it 
empowers an inappropriate form of judicial activism, it is very clear 
if we study this that they simply do not like the results. They simply 
do not like courts finding that this or that statute might not be 
permissible under the Constitution. Because if we look at the judges 
who have been judicial activists, what we find, of course, is that the 
most conservative justices of the Supreme Court, for example, are also 
the most judicially active.
  Justices Scalia and Thomas, the two most conservative justices, 
strongly supported by the conservatives, have in fact voted to 
invalidate more statutes, to find more acts of Congress 
unconstitutional than their more moderate and liberal counterparts. If 
in fact they think it is a terrible idea for the Supreme Court to 
strike down statutes, then they would be very critical of Mr. Scalia 
and Mr. Thomas, the Religious Freedom Restoration Act that they did not 
like, the Brady Bill, parts of which they did not like. There are a 
whole series of them. And the conservative justices are in league.

[[Page H2245]]

  One of the most glaring examples of this came recently with regard to 
a series of decisions in California where judges in California found 
referenda unconstitutional. Now, in a couple of cases, at least in one 
case, a district judge found the referendum unconstitutional under 
affirmative action. That district judge was promptly overruled. No harm 
was done to the cause of the people who were against it. We went 
through the regular procedure.
  And if we listen to my Republican friends, we might get the 
impression that they do not like the idea of a Federal judge 
invalidating a popular referendum. But if we got that idea, Mr. 
Chairman, we would be wrong.
  Sometimes in an excess of their concern over a particular case, my 
friends on the other side overstate their allegiance to general 
principles. Because, in fact, when the people on the Republican Party 
do not like the result of a referendum, what do they do? Well, in 
California, they go to court and they ask a single district judge to 
invalidate it.
  Indeed, it seems to me clear that, with regard to judicial activism, 
my friends on the other side have essentially the same position with 
regards to States'
rights. They are against it except when they like it. They are prepared 
to denounce it when it produces a result they do not like. But when it 
gets in the way of a result they like, then they ignore it. That is 
where they are on States' rights, and that is a perfectly valid 
viewpoint.
  That is, it is valid to be result-oriented. It is valid to say, I am 
going to hope for the right decision. What is not intellectually valid, 
it seems to me, is to assert adherence to a principle to which one does 
not, in fact, adhere. And when we talk about States' rights but are 
prepared to disregard States' rights and talk reform and criminal 
procedure and economic regulation and consumer protection, then we 
really forfeit our rights to talk about States' rights. And when we 
denounce judicial activism but Honor Justices Scalia and Thomas, our 
two most active justices, then it seems to me we undercut our argument.
  And with regard to the notion that somehow it is a terrible thing for 
a district court judge to invalidate a popular referendum, let me read 
a refutation of that view. I am reading from a legal brief.

       The blanket primary is not valid because it apparently was 
     passed by a majority of Democrats and Republicans who voted 
     in the 1996 election. Voters cannot validly enact a law which 
     conflicts with parties' rules governing the nomination of 
     candidates and infringes their first amendment rights any 
     more than can a legislature.

  Let me read that again correctly. ``Voters cannot validly enact a law 
which conflicts with parties' rules governing the nomination of 
candidates and infringes their first amendment rights any more anymore 
than a legislature.''
  Let me also now read. ``Even if the electorate could enact statutes 
to regulate the selection of nominees for partisan offices, it cannot 
do so in a way that undermines the integrity of the electoral 
process.''
  And then quoting with approval another decision, ``Voters may no more 
violate the Constitution by enacting a ballot measure than a 
legislative body may do so by enacting legislation. A court must 
undertake the same constitutional analysis of laws passed by initiative 
as by a legislature. There is little significance to the fact that a 
law was adopted by a popular vote rather than as an act of the State 
legislature. Indeed, there are substantial reasons for according 
deference to legislative enactments that do not exist with respect to 
proposals adopted by initiative.'' And that is a quote again from 
another decision.
  Now, where do these arguments in favor of allowing a single Federal 
district judge to invalidate a referendum of the people of California 
if it was unconstitutional come from? What radical group, what group of 
anti-public elitists, what sneering left-wingers, unwilling to let the 
people decide, put this forward? Who says that, in fact, the 
legislative enactment might even get more deference from a court than 
the people? Who are these judicial activist encouragers who so sneer at 
the public? They are the California Republican Party.
  I am quoting from the brief filed by the California Republican Party, 
Michael Schroeder, Shawn Steel, and Donna Shalansky. Not that Shalala. 
Donna Shalansky. It was filed July 28, 1997. Because the people of 
California dared to pass a referendum changing the way candidates are 
nominated for office which the Republican and Democratic Parties of 
California did not like.
  So the Republican Party of California went to court with the 
Democratic Party of California and said, judge, you make those people 
stop violating my constitutional rights. And they wrote down here that 
just because the people did it in a referendum does not mean anything. 
In fact, it may mean it is even less entitled to respect than when the 
people do it.

                              {time}  1100

  Of course, we have a bill on the floor that does exactly the 
opposite. We have a bill on the floor that says that, if a referendum 
is involved, we have to have a three-judge court.
  It just seems to me, Mr. Chairman, that there ought to be some limit 
to the extent to which a gap is allowed to exist between what people 
say they truly believe and what they do when it is important to them.
  So what we have here is a cry of frustration. We have the right wing 
not liking the fact that the court sometimes enforces constitutional 
rights. So they talk about all the doctrines which they, it does not 
seem to me, follow themselves when they are inconvenient.
  So they come forward with a bill which is mostly a nuisance and 
interference and a derogation from the efficiency of our Court system. 
We will be offering some amendments to try to clear that up. And absent 
the passage of those amendments, I hope the bill is defeated.
  Mr. Chairman, I reserve the balance of my time.
  Mr. COBLE. Mr. Chairman, I yield 7 minutes to the distinguished 
gentleman from Illinois (Mr. Hyde), the Chairman of the House Committee 
on the Judiciary.
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Mr. Chairman, I will restrain myself from quoting the well-
known line about a foolish consistency, because I tend to agree with 
the gentleman from Massachusetts (Mr. Frank). I think consistency is a 
virtue, and I do not have the time to point out inconsistencies on the 
left.
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
  Mr. HYDE. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman, 
because my good friend from Illinois and I do not always agree on the 
definition of virtue, so I am glad we do in this case.
  Mr. HYDE. Mr. Chairman, that is right, at least in this instance. But 
I would like to suggest that I think he proves too much when he refers 
to this bill as somehow hostile to the vibrancy, the vitality, the 
importance, the significance of the Federal judiciary. Just the 
opposite; it is an effort to make the Federal judiciary work better.
  We will have amendments here, and we will debate this issue, but I do 
not think there is anything in the bill that is hostile at all to the 
notion of the third branch of government and its very important role in 
the functioning of our democracy.
  As to the three-judge panel, somehow the gentleman from Massachusetts 
views that as a derogation of authority, proper authority that belongs 
to the courts. I would just simply suggest that the notion of setting 
aside by injunction a referendum that has passed through a State 
process where members of the State have voted in the referendum is a 
topic of some significance and deserves the gravity of a three-judge 
court rather than just one judge.
  I say that because we do this in the context of three-judge courts 
already deciding appeals from voting rights cases and reapportionment 
cases. I am sure the gentleman from Massachusetts supports 
enthusiastically the notion that three-judge courts have to hear voting 
rights cases. They are important. Three-judge courts ought to hear 
appeals on reapportionment because they are important.

[[Page H2246]]

  We feel a State referendum is equally important. So rather than 
derogating from the importance of the Federal courts deciding these, we 
are adding some gravatas to the process by saying where an entire State 
has voted on an issue, that the setting aside of that should be done by 
a three-judge court rather than one.
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
  Mr. HYDE. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman for 
yielding to me. I would say, as our friend from North Carolina had 
reminded us, the original reason for a three-judge court in the voting 
rights case had to do with the unfortunate history of judges in the 
South, who did not really believe in it. I do not think that there was 
need for it any further, and I would not insist on maintaining it.
  I would say with regard to the substance of what the gentleman said, 
I understand his argument that there is something special about a 
referendum. But the California Republican Party filed a lawsuit 
directly contradicting that.
  I would ask the gentleman, do the California Republicans, who serve 
on the Committee on the Judiciary, have they talked to the California 
Republican Party and tried to enlighten them and correct this error, 
which they have so strongly propagated?
  Mr. HYDE. Mr. Chairman, I would say to my friend, the gentleman from 
Massachusetts, that is the one aspect of this controversy I have not 
researched. But I can also tell him that I will not research it. But, 
nonetheless, the purpose of the three-judge court is a recognition of 
the significance of an entire State voting on a referendum, and giving 
it the added dignity of a three-judge court to set aside the expressed 
wish of perhaps millions of people; the same as in voting rights 
appeals and in reapportionment.
  Mr. FRANK of Massachusetts. Mr. Chairman, I ask the gentleman to 
yield.
  Mr. HYDE. Mr. Chairman, this is almost amounting to harassment, but 
I, nonetheless, in the mood of accommodation, yield to the gentleman 
from Massachusetts.
  Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so 
I do not think it is harassment.
  Mr. COBLE. Mr. Chairman, I did not hear what the gentleman said.
  Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so 
I do not think it is harassment because I am not the gentleman's 
supervisor.
  I would say to the gentleman that I appreciate his talking about the 
relevance of respecting the wishes of millions of California voters in 
a referendum. I hope when the resolution condemning those same voters 
for voting for medical marijuana comes up that the respect that the 
gentleman is now showing for those California voters does not evaporate 
as rapidly as I fear it might.
  Mr. HYDE. Mr. Chairman, I yield to the gentleman's superior knowledge 
on marijuana.
  I simply would like to say that the rest of this bill deals with 
improvements in the Federal court system, abuses that can occur in 
class-action certifications, questions of judicial misconducts. Some of 
us feel those are better handled by a committee in another circuit 
rather than the circuit where the judge practices or sits.
  We deal with questions of courts ordering taxing bodies to raise 
taxes. We feel that is a violation of separation of powers. We like to 
help avoid getting stuck, if I may use that inelegant term, with a 
judge who is inappropriate for a particular party or litigant or lawyer 
by letting us at least change once, which we can do in every circuit 
court throughout the country. We deal with cameras in the courtroom 
handling capital punishment appeals.
  So this is a good bill. I do not doubt it is controversial. It is not 
hostile to the courts. We will have a struggle perhaps later on over 
judicial pay. Some people who just congenitally dislike judges will 
have their say, but that is for later in the day.

         Summary of H.R. 1252, the Judiciary Reform Act of 1998

       This necessary legislation addresses one of the most 
     disturbing problems facing our constitutional system today--
     the infrequent but intolerable breach of the separation of 
     powers by some members of the Federal judiciary.


                           three-judge panels

       The first reform contained in this bill was developed 
     originally by a valued member of the Committee on the 
     Judiciary, the late Representative Sonny Bono of California. 
     Recognizing the unjust effect on voting rights created by 
     injunctions issued in California by one judge against the 
     will of the people of the State as reflected in Propositions 
     187 and 209, H.R. 1252 provides that requests for injunctions 
     in cases challenging the constitutionality of measures passed 
     by a state referendum must be heard by a three-judge court. 
     Like other federal voting rights legislation containing a 
     provision providing for a hearing by a three-judge court, the 
     Judicial Reform Act of 1998 is designed to protect voters in 
     the exercise of their vote and to further protect the results 
     of that vote. It requires that legislation voted upon and 
     approved directly by the citizens of a state be afforded the 
     protection of a three-judge court pursuant to 28 U.S.C. 
     Sec. 2284 if an application for an injunction is brought in 
     federal court to arrest the enforcement of the referendum on 
     the premise that the referendum is unconstitutional. This 
     system already applies to Voting Rights Act and 
     reapportionment cases.
       In effect, where the entire populace of a state 
     democratically exercises a direct vote on an issue, one 
     federal judge will be able to issue an injunction preventing 
     the enforcement of the will of the people of that state. 
     Rather, three judges, at the trial level, according to 
     procedures already provided by statute, will hear the 
     application for an injunction and determine whether the 
     requested injunction should issue. An appeal is taken 
     directly to the Supreme Court, expediting the enforcement of 
     the referendum if the final decision is that the referendum 
     is constitutional. Such an expedited procedure is already 
     provided for in other voting rights cases. It should be no 
     different in this case, since a state is ``redistricted'' for 
     purposes of a vote on a referendum into one voting block. The 
     Congressional Research Service estimates that these three-
     judge courts would be required less than 10 times in a decade 
     under this bill, causing a very insubstantial burden on the 
     federal judiciary, while substantially protecting the rights 
     of the voters of a state.
       This bill recognizes that state referenda reflect, more 
     than any other process, the one-person/one-vote system, and 
     seeks to protect a fundamental part of our national 
     foundation. This bill will implement a fair and effective 
     policy that preserves a proper balance in federal-state 
     relations.


             Interim Appeals of Class Action Certifications

       The second reform contained in this bill was developed by 
     the Chairman of the Subcommittee on the Constitution, 
     Representative Charles Canady of Florida. It allows immediate 
     (interlocutory) appeals of class action certifications by a 
     federal District judge.
       When a District judge determines that an action may be 
     maintained as a class action, the provisions contained in the 
     Judicial Reform Act allow a party to that case to appeal that 
     decision immediately to the proper Court of Appeals without 
     delaying the progress of the underlying case. This prevents 
     ``automatic'' certification of class actions by judges whose 
     decisions to certify may go unchallenged because the parties 
     have invested too many resources into the case before an 
     appeal is allowed.
       This bill will also prevent abuses by attorneys who bring 
     class action suits when they are not warranted, and provides 
     protection to defendants who may be forced to expend 
     unnecessary resources at trial, only to find that a class 
     action was improperly brought against them in the first 
     place. As a practical matter, the outcome of a class-action 
     suit is often determined by whether the judge elects to 
     certify a class since certifications may guarantee that a 
     plaintiff's attorney can extract a favorable settlement, 
     irrespective of whether the certification was proper.


                 Complaints Against Judicial Misconduct

       The third reform contained in this bill was developed by 
     another member of the Committee on the Judiciary, 
     Representative Ed Bryant of Tennessee. It requires that a 
     complaint brought against a federal judge be sent to a 
     circuit other than the one in which the judge who is the 
     object of the complaint sits for review. This will provide 
     for a more objective review of the complaint and improve the 
     efficacy of the Judicial Councils Reform and Judicial Conduct 
     and Disability Act of 1980, 28 U.S.C. Sec. 372 (``The 1980 
     Act''), which established a mechanism for the filing of 
     complaints against federal judges.
       Under those procedures, a complaint alleging that a federal 
     judge has engaged in conduct prejudicial to the effective and 
     expeditious administration of the business of the courts may 
     be filed with the clerk of the U.S. Court of Appeals for the 
     circuit in which the federal judge who is the subject of the 
     complaint sits. Under the Act, a special committee will 
     report to the judicial council of the circuit, which will 
     decide what action, if any, should be taken.
       By requiring that complaints filed under the 1980 Act be 
     transferred to a circuit other than the circuit in which the 
     alleged wrongdoer sits, more objectivity and accountability 
     will exist for litigants who find themselves in need of 
     relief from a judge who is

[[Page H2247]]

     not properly performing his or her functions. In addition, 
     the bill has been amended to limit out-of-circuit referrals 
     to those cases in which a complaint is not dismissed as being 
     incomplete, frivolous, or directly related to the merits of a 
     decision or procedural ruling. This amendment represents an 
     effort to respond to those critics who assert that the 
     revision to existing complaint procedures will generate 
     unnecessary and trivial administrative expenses for out-of-
     circuit judges. In other words, only ``substantive'' 
     complaints will be referred out of circuit.


                           judicial taxation

       The fourth reform contained in this bill prohibits a 
     federal court from ``expressly directing'' or ``necessarily 
     requiring'' that a state or municipality impose taxes on its 
     citizenry, a function reserved to legislative bodies, for the 
     purpose of enforcing a legal decision. Seizing the power of 
     the public purse by imposing taxes on any community is an 
     egregious example of how some members of the judiciary have 
     breached this nation's founding principle of separation of 
     powers and undermined the concept of self-rule.
       In some cases, judges have designed in specific detail 
     local school systems and public housing systems, and then 
     ordered tax increases to finance the spending bills disguised 
     in their judicial rulings. The most conspicuous example 
     illustrating this problem is the ongoing case of Missouri v. 
     Jenkins, in which the Supreme Court has issued three opinions 
     and the court of appeals more than 20. In Jenkins, the 
     Supreme Court ruled that while it was permissible for the 
     lower court in the Kansas City school system to order the 
     state or municipality to raise taxes to remedy a 
     constitutional deprivation, it remanded and reversed the 
     lower court decision based on the fact that the lower court 
     lacks the authority to impose a tax itself; it must order the 
     state or local municipality to do so. The Jenkins litigation 
     also demonstrates that once a federal court seizes such a 
     ``structural reform'' case, it will constantly reevaluate its 
     progress for years until the ``constitutional deprivation'' 
     has been cured.
       State and federal laws leave budget and spending authority 
     to legislative bodies, because only a body which represents 
     the will of the people can decide properly how to spend the 
     people's taxes. While rulings on due process are important to 
     protect the rights of litigants, and remedy which would force 
     the public to pay more in taxes must come from the House of 
     the people and not from the authority of the bench. The 
     judiciary is neither equipped nor given the power to make 
     such decisions. To allow otherwise is to usurp self-rule and 
     replace it with self-appointed authority. As four justices of 
     the United States Supreme Court have stated, the imposition 
     of taxes by courts ``disregards fundamental precepts for the 
     democratic control of public institutions. The power of 
     taxation is one that the federal judiciary does not 
     possess.''
       This bill will restore the proper balance defined in the 
     Constitution between the federal branches and federal-state 
     relations by forbidding any U.S. District court from entering 
     an order or approving a settlement that requires a state or 
     one of its subdivisions to impose, increase, levy, or assess 
     any tax for the purpose of enforcing any federal or state 
     common law, statutory, or constitutional right or law.
       This reform contains a narrow, multi-part exception to the 
     general prohibition of judicially-imposed taxation. 
     Specifically, a court may not order a state or political 
     subdivision to impose a tax unless the court first determines 
     by clear and convincing evidence that: (1) there are no other 
     means available to remedy the relevant deprivation of rights 
     or laws, and the tax is narrowly tailored and directly 
     related to the specific constitutional deprivation or harm 
     necessitating redress; (2) the tax will not exacerbate the 
     deprivation intended to be remedied; (3) the tax will not 
     result in a revenue loss for the affected subdivision; (4) 
     the tax will not result in a depreciation of property 
     values for the affected taxpayers; (5) plans submitted by 
     state or local authorities will not effectively redress 
     the relevant deprivation; and (6) the interests of state 
     and local authorities in managing their own affairs is not 
     usurped by the proposed tax, consistent with the 
     Constitution.
       Finally, the bill specifies that the judicial tax 
     provisions will apply to any action or proceeding pending on, 
     or commenced on or after, the date of enactment. This was 
     done at the behest of Representative Don Manzullo of 
     Illinois, whose district is home to Rockford, a city which is 
     subject to a court taxation order that has devastated local 
     communities.


                         Reassignment of Cases

       The fifth reform contained in this bill was also developed 
     by Representative Canady. It allows all parties on one side 
     of a civil case brought in federal District court to agree, 
     after initial assignment to a judge, to bring a motion 
     requiring that the case be reassigned to a different judge. 
     Each side of the case may exercise this option only once. 
     Under the provision, a motion to reassign must be made not 
     later than 20 days after the notice of original assignment of 
     the case is given.
       Because some critics believe the reassignment device might 
     encourage forum-shopping and attendant delay, its application 
     will be limited to the 21 largest federal judicial districts 
     (each containing over 10 judges to allow a random 
     reassignment) over a five-year period, thereby allowing 
     Congress to evaluate its effects and to determine whether it 
     ought to be extended to all districts and perpetuated in the 
     future.
       This substitution-of-judge, or, as referred to in the bill, 
     ``reassignment-of-case-as-of-right,'' provision mirrors 
     similar state laws and allows litigants on both sides of a 
     case to avoid being subjected to a particular federal judge, 
     appointed for life, in any specific case. It might be used by 
     litigants in a community to avoid ``forum shopping'' by the 
     other side in a case, or to avoid a judge who is known to 
     engage in improper courtroom behavior, who is known to be 
     prejudiced, or who regularly exceeds judicial authority.
       This provision is not meant to replace appellate review of 
     trial judges' decisions, but rather to complement appellate 
     review by encouraging judges to fairly administer their oaths 
     of office to uphold the Constitution. Many judges face 
     constant reversals on appeal, but still force litigants to 
     bear extraordinary costs before them and further bear the 
     burden of overcoming standards of review on appeal. This 
     provision allows litigants some freedom in ensuring that due 
     process will be given to their case before they bear the 
     costs associated with litigating in trial court and will 
     encourage the judiciary to be as impartial as required by 
     their charge.


                 handling of capital punishment appeals

       The sixth reform set forth in H.R. 1252 was developed in 
     response to the May 14, 1997, testimony of Charlotte Stout, 
     who participated in an oversight hearing on judicial 
     misconduct, and comments made by Representative William 
     Delahunt of Massachusetts. Ms. Stout's daughter was raped and 
     murdered by a man who sat on death row for 18 years as a 
     result of filing numerous habeas petitions at the state and 
     federal level. His federal petition was handled by a judge 
     who delayed its consideration for four years before ordering 
     a new trial. This same judge handles all habeas petitions in 
     that judicial circuit, and has delayed consideration of all 
     capital cases appealed to that circuit by a minimum of 65 
     years. All cases on which he has reached a final decision 
     have resulted in an over-turning of a jury verdict to impose 
     execution. In effect, this judge has taken it upon himself to 
     usurp the decision of a jury to impose the death penalty. 
     Pursuant to the bill, the chief judge of a circuit could 
     neither handle all habeas cases by himself or herself, nor 
     delegate the responsibility on an exclusive basis to another 
     judge.


                        cameras in the courtroom

       A seventh reform would permit a presiding judge, in his or 
     her discretion, to permit the use of cameras during federal 
     appellate proceedings. Based on legislation introduced by 
     Representative Steve Chabot of Ohio, the change mirrors state 
     efforts to provide greater public access to the workings of 
     the judiciary. The Committee on the Judiciary also adopted an 
     amendment offered by Representative Chabot which creates a 
     three-year pilot program allowing televised proceedings in 
     any U.S. District (trial-level) proceeding, subject to the 
     discretion of the presiding judge.


                              judicial pay

       An eighth reform includes parts of legislation introduced 
     by Representative Henry Hyde of Illinois, Chairman of the 
     Committee on the Judiciary, that would grant federal judges 
     an annual cost-of-living adjustment unless Congress takes 
     action to the contrary.


                      complex disaster litigation

       With Representative Jim Sensenbrenner of Wisconsin as its 
     chief advocate, a ninth reform consists of language which the 
     House passed in the 101st and 102nd Congress, and which the 
     full Committee on the Judiciary passed in the 103rd Congress. 
     This language is intended to improve the ability of federal 
     courts to handle complex multidistrict litigation arising 
     from a single accident, such as a plane crash.
       Briefly, these changes would bestow original jurisdiction 
     on federal District courts in civil actions involving minimal 
     diversity jurisdiction among adverse parties based on a 
     single accident where at least 25 persons have either died or 
     sustained injuries exceeding $50,000 per person. The District 
     court in which such cases are consolidated would retain those 
     cases for purposes of determining liability and punitive 
     damages, and would also determine the substantive law 
     that would apply for findings of liability and damage. 
     Returning individual cases to state and federal courts 
     where they were originally filed for a determination of 
     compensatory money damages (and where all relevant records 
     are located) is fair to the plaintiffs or their estates.
       These changes should reduce litigation costs as well as the 
     likelihood of forum-shopping in airline and other accident 
     cases. An effective one-time determination of punitive 
     damages would eliminate multiple or inconsistent awards 
     arising from multiforum litigation.


          Agency (OPM) Appeals of Adverse Personnel Decisions

       The tenth and final reform of H.R. 1252, proposed by 
     Representative Conyers of Michigan, would permit the Office 
     of Personnel Management (OPM) to appeal final decisions of 
     the Merit Systems Protection Board (MSPB) and final arbitral 
     awards dealing with adverse personnel actions to the Federal 
     Circuit within 60 days from the time

[[Page H2248]]

     final notice of a decision is received. Currently, OPM must 
     file its appellate briefs within 30 days, which is half the 
     time allotted to other federal agencies.
       This bill is limited in scope. It reforms the procedures of 
     the federal courts to ensure fairness in the hearing of cases 
     without stripping jurisdiction, or reclaiming any powers 
     granted by Congress to the lower courts. It does assure that 
     litigants in federal courts will be entitled to fair rules of 
     practice and procedure leading to the due process of claims.
  Mr. FRANK of Massachusetts. Mr. Chairman, I reserve the balance of my 
time.
  Mr. COBLE. Mr. Chairman, I yield 5\1/2\ minutes to the distinguished 
gentleman from Texas (Mr. DeLay), the majority whip for the House.
  Mr. DeLAY. Mr. Chairman, I thank the Chairman for yielding. I want to 
commend the chairman of the subcommittee and the chairman of the full 
committee and the Members of the Committee on the Judiciary for their 
very hard work and effort in what I consider a much needed piece of 
legislation.
  The system of checks and balances so carefully crafted by our 
Founding Fathers is in serious disrepair and has been for years. This 
bill takes a very necessary step to bring the courts back into 
constitutional order.
  The Founding Fathers established a system of government in the United 
States that does not allow one branch to become too powerful at the 
expense of the other. I contend, quite frankly, if we read the 
Constitution as it originally was written and intended, the judiciary 
branch was supposed to be the weakest branch of the three created by 
the Constitution.
  Contrary to the opinion of the liberal legal establishment of this 
country, judicial power is not limitless. Judicial power does not equal 
legislative power. Judges apply the law. They are not to make the law. 
When judges go further and unilaterally impose legislative remedies, 
they exceed the legitimate limits of power given to them by the 
Constitution.
  When judges legislate, they usurp the power of Congress. When judges 
stray beyond the Constitution, they usurp the power of the people. For 
instance, under the Constitution, only Congress can lay and collect 
taxes. But that did not stop District Judge Russell Clark from ordering 
tax increases from the bench.
  That tax increase, and 2 billion tax dollars, turned the city school 
district into a spending orgy, complete with editing and animation 
labs, greenhouses, temperature-controlled art galleries, and a model 
United Nations that was wired for language translation. If that is not 
taxation without representation, I do not know what it is.
  Another example of a judge tossing aside the Constitution and 
supplanting his own personal biases was the decision of the District 
Court Judge, Thelton Henderson, prohibiting the State of California 
from implementing the California Civil Rights Initiative, the CCRI.
  The CCRI simply removed the opportunity for State officials to judge 
people by their race and their sex, a practice that I think most 
Americans consider repugnant. In a ruling that turned common sense and 
our Constitution on its head, Justice Henderson ruled that by adopting 
the equal protection clause of the 14th amendment, the voters of the 
State of California had violated that same 14th amendment.
  Although judicial taxation and Judge Henderson's circumvention of the 
Constitution are two extreme examples of judges breaching the 
separation of powers, there are, of course, many, many others.
  Judges have created the right to die. Judges have prohibited States 
from declaring English as an official language. Judges have extended 
the right of States to withhold taxpayer-funded services from illegal 
aliens, all without sound constitutional basis.
  Now, some Federal judges have even made themselves the sovereigns of 
the cell blocks, micromanaging our State prisons, and forcing changes 
in prison operations that have resulted in the early release each year 
of literally hundreds of thousands of violent and/or repeat criminals 
out on our streets and the streets to plague our families.
  In 1970, not a single prison system was operating under the sweeping 
court orders common today. By 1990, some 508 municipalities, and over 
1,200 State prisons were operating under some judicial confinement 
order or some consent decree.
  In New York City, judges have forced prison officials to require that 
only licensed barbers cut the hair of the prisoners; that sweetened 
coffee may never be served at meals for the prisoners; and a court-
appointed monitor must be given a city car within one grade of the 
prison commissioner's car. If it were not so appalling, it would be 
funny.
  But if that is not enough, the same activist judges have also imposed 
prison caps, mandating the release of violent felons and drug dealers 
before they have even served their time.
  Later today, the gentleman from Pennsylvania (Mr. Murtha) and I will 
offer an amendment that will end this travesty of justice caused by 
overactive judges. Our amendment will prohibit a Federal judge from 
ever releasing a felon from prison because of claims of prison 
overcrowding.
  The prisoners claim of overcrowding has become a get-out-of-jail-free 
card. And we say no longer. No longer will these prisoners plague our 
families, and our cities, and in our towns.
  I urge my colleagues to support the Hyde bill and the DeLay-Murtha 
amendment. The time has come to reestablish our system of checks and 
balances and to restore sanity to our criminal justice system.
  Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may 
consume to the gentleman from Michigan (Mr. Conyers), the ranking 
member of the full committee.
  Mr. CONYERS. Mr. Chairman, I thank the gentleman from Massachusetts 
for yielding to me.
  Mr. Chairman, I was delighted to hear the majority whip, 
constitutional expert in his own right, whose opinions I respect very 
much, and which will become very much in focus today. The gentleman 
from Texas (Mr. DeLay), majority whip, is the same Member of Congress 
who claims it is time we impeach judges whose opinions consistently 
ignore their constitutional role, violate their oath of office, and 
breach the separation of powers.

                              {time}  1115

  That is a quote.
  Mr. DeLAY. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman from Texas.
  Mr. DeLAY. Does the gentleman believe that a judge should not be 
impeached that violates his oath of office and violates the 
Constitution?
  Mr. CONYERS. I will get to that later. Right now I am making my own 
presentation, and I wanted to make sure I am quoting the gentleman 
correctly.
  Mr. DeLAY. Will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman, yes.
  Mr. DeLAY. The gentleman from Michigan is absolutely quoting me 
correctly.
  Mr. CONYERS. All right, that is all I need. The majority whip should 
use his own time.
  Now let me ask the majority whip, who is enjoying this as much as I 
am, ``Do you have any judges in mind since you made that statement a 
few months ago or do you plan to do anything about your pronouncements 
on that subject?''
  Mr. DeLAY. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. With pleasure.
  Mr. DeLAY. I got a list and it is growing, yes, sir.
  Mr. CONYERS. The gentleman from Texas got a list and it is growing.
  Well, does the gentleman plan to ever do anything with the list, 
though? That is the point, and I yield again.
  Mr. DeLAY. I will be glad to consult with the gentleman when I have a 
candidate that has violated his oath of office and the Constitution.
  Mr. CONYERS. Okay. Then that means up to now the gentleman does not 
have a candidate but he has got a list.
  Mr. DeLAY. Will the gentleman yield?
  Mr. CONYERS. Yes, sir.
  Mr. DeLAY. I thought the list of candidates is what I was referring 
to. I have got plenty of candidates, yes. I am just looking for one 
that is particularly bad in violating the Constitution and his oath of 
office, yes.

[[Page H2249]]

  Mr. CONYERS. I get it. Then the gentleman does not have a candidate 
right now. He has got a list. And I am not yielding any more. The 
gentleman from Texas can get time. I got a way for him to get as much 
time as he wants, but it is on the other side on his own time.
  Okay.
  Mr. DELAHUNT. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman from Massachusetts.
  Mr. DELAHUNT. If the gentleman would inquire of the majority whip to 
give us the names on that particular list.
  Mr. CONYERS. No, I am not going to go there. I am not going to go 
there. He has got a list and he is working on it, but he does not have 
a name yet so I got to wait. Said just stay tuned and he is going to 
make his presentation when the time comes.
  Mr. DELAHUNT. Will the gentleman continue to yield? Could he reveal 
to us the number of candidates that are on it?
  Mr. CONYERS. I am not going to go there, either. Maybe he will tell 
us today, maybe he will not. Maybe he will come up with a list next 
month. Who knows? That is what he is telling me.
  Well, now, ``Congressional Republicans yesterday rallied,'' this is 
the great Washington newspaper, the Washington Times, ``Congressional 
Republicans yesterday rallied behind House Majority Whip Tom DeLay's 
announcement that the GOP will pursue impeachment proceedings against 
activist Federal judges.''
  Now I would like to gain the distinguished majority whip's attention 
again. Excuse me, sir, if I may gain your attention again.
  Mr. DeLAY. Is the gentleman going to yield to me now?
  Mr. CONYERS. Just a moment. I just want to gain the gentleman's 
attention first. Okay. I thank the gentleman. ``Congressional 
Republicans yesterday rallied behind House Majority Whip Tom DeLay's 
announcement that the GOP will pursue impeachment proceedings against 
activist Federal judges.''
  And I will be happy to yield to the gentleman. What generally is his 
description of activist Federal judges?
  Mr. DeLAY. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman from Texas.
  Mr. DeLAY. I appreciate the gentleman giving me this opportunity.
  Mr. CONYERS. It is a pleasure.
  Mr. DeLAY. First of all, I did not write that.
  Mr. CONYERS. I know the gentleman did not.
  Mr. DeLAY. I am not looking to impeach activist judges. What I am 
looking for are judges that violate their oath of office and judges 
that violate the Constitution of the United States.
  Mr. CONYERS. Okay. Then the Washington Times is wrong again, and to 
the extent that they are incorrect I apologize for bringing it to the 
gentleman's attention.
  Mr. DeLAY. Will the gentleman yield again?
  Mr. CONYERS. I yield to the gentleman from Texas.
  Mr. DeLAY. They just used the wrong word.
  Mr. CONYERS. I see. What word should they have used?
  Mr. DeLAY. Judges that violate the Constitution and their oath of 
office.
  Mr. CONYERS. So this is not about activist judges. Okay. Well we are 
getting someplace.
  Now here is the problem with this bill. There was a section in H.R. 
1252 granting parties in the 21 largest Federal districts the right to 
peremptorily challenge a Federal judge's right to hear a civil action. 
In effect, listen carefully, Republican Members of this House, in 
effect this provision permits prejudicial challenges based on the race 
or gender of the judge.
  Now, current law already provides a clear and coherent statutory 
regime for removing judges in appropriate circumstances, and it has 
been working pretty well all these years. But now today, 1998, we get a 
proposal in this bill that goes well beyond removing judges for cause 
and allows the parties to remove judges for no stated reason 
whatsoever, no stated reason whatsoever.
  This is what the Republican lawyers on the House Committee on the 
Judiciary propose we do to the Federal courts today, for no reason, any 
reason. These are lawyers on the Committee on the Judiciary seriously 
proposing that that is what we do, and I say that is wrong.
  In addition, these challenges would not require the exercising party 
to make any showing or even any allegation of bias on the part of the 
judge. In other words, ``I don't like that judge, let's get another 
judge.'' Does the gentleman know what that would do to the judicial 
process in the Federal system? Every judge that walks into every court 
where he is assigned, a judge, any party that does not like the judge, 
they get another one. And they go there and they get another one. They 
do not like the next one, someone else objects.
  And this is a serious proposal, my colleagues. I think we ought to 
take a good look at this and find out just what is fueling this desire 
to allow every lawyer that comes into Federal court to forum shop. I do 
not think it is proper, and I do not think that it ought to be in the 
law. The judges are not too thrilled about it either. The delay would 
be incredible, and the Judicial Conference is a little bit exercised, 
as my colleague can believe.
  A preemptive challenge would be devastating of this kind. All the 
expertise that a judge acquired regarding the cases developed over many 
months would be lost. New judges would have to educate themselves 
regarding the attendant cases, with delay and expense.
  And so we are asking that this provision be stricken from the bill. 
We hope that a lot of Members, lawyers and constitutional experts and 
Members that do not make that claim, will join us in opposing this 
section of the bill.
  Mr. COBLE. Mr. Chairman, I yield 2 minutes to the gentlewoman from 
California (Mrs. Bono).
  (Mrs. BONO asked and was given permission to revise and extend her 
remarks.)
  Mrs. BONO. Mr. Chairman, as one of the newest Members of the 105th 
Congress, I want to express what a privilege it is to arrive at this 
great institution and participate during these important debates.
  As one of my first official acts I am very proud to rise today to 
support the bill under consideration, the Judicial Reform Act of 1997. 
This is a very good bill, and among its important provisions is one of 
special significance to the voters of my district, of my State and to 
myself. Section 2 of the bill reflects the bill, H.R. 1170, which was 
my late husband's first piece of legislation in Congress and which 
passed this House last Congress. This is a simple but long overdue 
measure that will protect the franchise of democracy.
  This provision, as my colleagues already know, establishes a three-
judge panel to review the constitutionality of voter-passed 
initiatives. When a single Federal judge can block the will of the 
people for years at a time, that is one of the most antidemocratic 
features of our legal system. For the voters of California and other 
States that have initiatives, justice is delayed, and thus it is 
denied.
  Quickly I want to spell out three reasons why the three-judge panel 
provision should be passed by the House today. This is a commonsense 
idea; it will make the Federal courts more objective in the way they 
review cases arising from a vote of the people.
  This is a mainstream idea. This measure was part of the American 
legal system for years, and in my view we are bringing back something 
that has an important role in protecting our democratic system. Every 
Member knows that the three-judge panels are used today in voting 
rights and apportionment cases.
  And, finally, this is a bipartisan idea. The three-judge panel bill, 
H.R. 1170, was supported by an overwhelming and bipartisan vote of this 
body in the last Congress. The bill we are considering today also 
contains provisions that Republicans and Democrats should unite to 
support.
  In closing, I want to commend the gentleman from Illinois (Mr. Hyde) 
and the gentleman from North Carolina (Mr. Coble) for their hard work 
in bringing this excellent bill to the floor. Again, I ask every Member 
to support this provision and pass this bill.
  Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes to the 
gentlewoman from California (Ms. Waters), a member of the committee.

[[Page H2250]]

  (Ms. WATERS asked and was given permission to revise and extend her 
remarks.)
  Ms. WATERS. Mr. Chairman, I rise in opposition to this odious bill. 
This bill may as well be called the anti-Thelton Henderson bill. 
Republicans got upset with one Federal district judge's decision 
regarding proposition 209, and now they want to change the whole 
judicial process. These changes would make it possible to pick and 
choose with no justification. Thus, black judges, Latino judges, women 
judges would be challenged simply because of their color.
  The changes they propose are outrageous. They want to make it easy 
for racist and sexist judges to hear cases in civil actions. They want 
the Reagan-Bush appointed court of appeals judges to control the 
decisions about the constitutionality of State referenda issues. They 
want to restrict Federal district courts from enforcing rights laws if 
there are any fines involved.
  Now, after proposing all of that, the Republicans dangle the cameras 
in the courtroom provision as if to make a concession. Well, I am not 
falling for it. Now I wholly support the opening up of the judiciary. 
Cameras would help the public understand the justice system. But I will 
not sacrifice the integrity of the entire Federal judiciary for one 
good provision.
  This bill is unconscionable and unconstitutional. Tampering with the 
Federal justice system to get back at one judge's decision is petty and 
dangerous, and shame on my colleagues for pushing this bill, shame on 
all of us if we vote for it.
  I strongly urge a vote of ``no'' on H.R. 1252.
  Mr. COBLE. Mr. Chairman, I yield 2 minutes to the gentleman from 
Tennessee (Mr. Bryant), a member of the Committee on the Judiciary.
  Mr. BRYANT. Mr. Chairman, this legislation before us was created 
after a number of judges across this country have began taking away 
rights and liberties in many of the cases before them, and the portion 
of this bill that I strongly support and actually authored has an 
impact in this situation when it comes to filing ethical complaints 
against judges by people who feel that they have been wrongfully 
treated in those courtrooms. And what it does, it removes the issue of 
appearance of conflict of interest, possible bias and favoritism in the 
review of these ethical complaints against the judges now presently 
done by that judge's own colleagues.

                              {time}  1130

  The process is once a complaint is filed, it is given to the clerk of 
the circuit court, who then passes it on to the chief judge.
  My proposal allows this chief judge to ferret out, to eliminate those 
frivolous claims, and those claims that are based on the judge's ruling 
itself, which is not proper, or those incomplete complaints. But once 
he finds there is some merit to a complaint against a judge, rather 
than allow, as I said before, the judge's own colleagues within that 
circuit court to determine whether or not that judge is guilty of an 
ethical violation, I simply ask the courts to allow that to be moved 
over to another circuit, to other judges, who perhaps do not know that 
judge as well.
  What that simply does is allow the person who filed that complaint, 
the citizen, to have a fair hearing of that complaint against the 
judge, without the appearance of a conflict of interest, without the 
appearance of favoritism by colleagues. Whether that exists or not, at 
a minimum, the appearance exists.
  It is a question of freedom and fairness. This legislation would 
protect those filing such a grievance, such a complaint, and allow it 
to be heard by judges who do not have that friendship or who do not 
have that working relationship with the judge under issue.
  Mr. Chairman, I close by simply urging my colleagues to support this 
bill. It is a very good bill.
  Mr. COBLE. Mr. Chairman, I yield 2 minutes to the gentleman from 
Arkansas (Mr. Hutchinson), a member of the Committee on the Judiciary.
  Mr. HUTCHINSON. Mr. Chairman, I thank the gentleman for yielding me 
time. I appreciate the leadership of the gentleman on this important 
issue.
  Mr. Chairman, I rise in support of H.R. 1252, the Judicial Reform 
Act, and want to speak about two provisions of the bill.
  The first one is one long-championed by our former colleague, Sonny 
Bono, which ensures that the will of millions of voters is not 
overturned by a single Federal judge. Of course, the illustration was 
given in the State of California, but that can be duplicated in 
Arkansas, in which the initiative petition drive alternative of the 
voters is utilized quite frequently.
  Whenever we have a ballot initiative that is passed by the voters, I 
think it is wrong to have that potentially overturned by one single 
Federal judge. I believe the three-judge panel is a better procedure 
because it preserves the right of judicial review, which I believe in. 
Yet at the same time it ensures it is not going to be passed on the 
whim of one Federal judge, but would at least require three to review 
and act upon what the voters of a particular State have done, and it 
would be a due regard for the Constitution of the United States.
  The second thing that I believe is important in this provision is the 
section that prohibits Federal judges from levying taxes on localities 
or municipalities as part of a settlement or a court ruling.
  Mr. Chairman, I believe that our constituents are probably wondering 
why we are even debating this, because the Constitution gives Congress 
the sole authority to impose taxes on the citizens. Because of what has 
happened in one particular case in Missouri, there is the fear that it 
could happen again. So this kind of judicial activism is, indeed, 
considered an outrage by the American public, and this legislation will 
ensure it does not happen again in our localities.
  So I believe that this is appropriate. It is responsible legislation; 
it has a good balance between the judicial review that is appropriate 
for judges to maintain, but yet we in this Congress are sworn to uphold 
the Constitution of the United States as well.
  I believe that this legislation is in line with our constitutional 
authority, and I would ask my colleagues to support it.
  Mr. COBLE. Mr. Chairman, I yield 2 minutes to the gentleman from Ohio 
(Mr. Chabot), a member of the Committee on the Judiciary.
  Mr. CHABOT. Mr. Chairman, I thank the gentleman for yielding me this 
time.
  Mr. Chairman, I rise in support of the Judicial Reform Act. As my 
colleagues know, this legislation contains language authored by the 
gentleman from New York (Mr. Schumer) and myself that would permit 
Federal judges in appropriate situations to allow the televising of 
civil and criminal trials or appeals. Again, it would permit it, but it 
would not require cameras in the courtroom. It is at the discretion of 
the trial judge.
  Open, public trials have a longstanding tradition in our country. The 
framers of the Constitution required public trials because they 
recognized that a thriving democracy depends on a well-informed public. 
They knew that the public needs to see how an important branch of the 
Federal Government works, or, in some cases, does not work, and they 
understood that the dignity of the court comes from the courtroom 
itself and from the values and beliefs on display.
  Those values and beliefs are invigorated, not undercut, as opponents 
of open government would argue, by giving the people the ability to see 
our judicial system in action.
  Chief Justice Berger, for example, once wrote, ``People in an open 
society do not demand infallibility from their institutions, but it is 
difficult for them to accept what they are prohibited from observing.''
  An informed citizenry also is essential to our constitutional system 
of checks and balances. The Federal courts play a very important part 
in our government. Federal judges, after all, serve for life. The 
American people deserve the opportunity to see how they operate. We 
need to encourage deeper understanding and further national discussion 
of the proper and properly limited role of the Federal judges.
  In an age where new technological breakthroughs are made every day 
and televisions are present in virtually every American home, it is 
inconceivable that access to the courts would be

[[Page H2251]]

strictly limited to those Americans who have the time and ability to 
personally visit a courthouse.
  Our Founding Fathers over 200 years ago wanted our Federal courts to 
be open, and they are open. But who has the time nowadays to take off 
of work or to take away from the time in raising their families to go 
down to the Federal courts, which are generally downtown? They should 
have the ability to view what is going on in those courtrooms at home. 
After all, those courts do not belong to the judges; they belong to the 
people.
  Mr. Chairman, I urge passage of this bill.
  Mr. FRANK of Massachusetts. Mr. Chairman, to close for us, I yield 
the balance of my time to the gentleman from North Carolina (Mr. Watt).
  The CHAIRMAN pro tempore (Mr. Ewing). The gentleman from North 
Carolina is recognized for 8 minutes.
  Mr. WATT of North Carolina. Mr. Chairman, I thank the gentleman for 
yielding me this time.
  Mr. Chairman, I actually had tried to restrain myself from taking 
time in general debate on this bill because I had very, very mixed 
emotions throughout this debate.
  I had the pleasure of practicing, sometimes the pain, of practicing 
law for 22 years before I was elected to Congress. There have been 
many, many times during that 22 years that I would have longed for the 
opportunity to be given the right to strike a judge and select another 
judge.
  There have been many times during that 22 years that I was on the 
verge of losing confidence in a process, and had to step back from it 
and evaluate the process that was there in our court system, and try to 
say to myself, how would I do this differently if I were designing a 
court system?
  So, in a sense, I guess I can empathize with my Republican colleagues 
who would like to make a substantial change in our judicial system 
because they have a sense of frustration about some aspect of it.
  There is probably not another person in this body, if there are, 
there are probably only a few, who have had a judge look at them or 
their law partners and call them a ``nigger'' in the courtroom. I would 
love to have had the opportunity to strike that judge and go on to 
another judge.
  There is probably nobody who has, as much as I, been involved in a 
system that had a three-judge panel, and recognized the benefits and 
detriments of having a three-judge panel in litigation.
  But when all is said and done, what we have to recognize is that we 
operate in a system that is unique to our country. I am in the majority 
a lot in this House, but I cannot start changing every rule that 
sometimes cuts in my favor and sometimes cuts against me. There has to 
be a set of rules that govern any kind of organized system, and our 
court system has a set of rules that govern it.
  So while I have experienced that frustration that some of my 
colleagues have talked about, what I have said to myself over and over 
and over again is that our system has to be protected. Otherwise, there 
is no rule of law; there can be no justice. We substantially undercut 
it when we start selectively trying to take some result and change it 
by changing the whole process under which we operate.
  That is what this bill does in substantial measure. It gives every 
citizen the opportunity to come in and say, I don't like this judge 
because I don't like what color he is or what gender she is or what 
political perspective they have, and therefore I am going to exercise a 
peremptory challenge, just like we do in a jury pool.
  That is an unprecedented change in our system. One, which I would 
have loved to have had on many occasions, but I have understood would 
undermine the system of justice that we have substantially in our 
country.
  Yet, my colleagues would come in here and whine and say I don't like 
the result, therefore I am going to change the whole system and give 
everybody in America the right to delay trials and subvert the system. 
This, my friends, is not a good bill.
  It may have some superficially appealing aspects to it, some which I 
can understand and empathize with, but we must protect the system of 
justice and the rules of the road, and we cannot start making them 
subject to who is in power in the Congress of the United States and 
whether it is Conservatives versus Liberals. We must have rules under 
which we operate.
  Once we undermine those rules, as this bill does substantially, then 
we have undermined our whole system of justice in this country.
  So I beg my colleagues on both sides of the aisle to evaluate this 
bill and see if this really is where they want to be. It may serve some 
short-term political objective that they have, but what does it do to 
the confidence of the public in our judiciary and in our judicial 
system?

                              {time}  1145

  At the end of the day, after my colleagues have made that kind of 
evaluation, I believe, if they are acting in the interests of justice 
and the integrity of our system, they will reject this bill so that we 
can have a reasonable set of rules that have governed our system for 
years and years and years and do not delay the trial of cases in our 
system.
  I ask my colleagues to vote against this bill, even though it may 
have some political, superficial benefit to them.
  Mr. COBLE. Mr. Chairman, I yield 3 minutes to the gentleman from 
Illinois (Mr. Manzullo).
  Mr. MANZULLO. Mr. Chairman, if there is any phrase that sums up the 
reason for the existence of this Republic, that phrase is ``no taxation 
without representation.'' That is not the phrase of Don Manzullo. It is 
the phrase of Thomas Jefferson, who, when he wrote the Declaration of 
Independence, cited King George for three things: that King George, 
III, refused to pass laws that would allow people the right to be 
represented in their own legislatures; that he called together 
legislative bodies at unusual times so nothing could be done; that he 
imposed taxes on us without our consent.
  Taxation without consent gave rise to the Boston Tea Party, and it 
gave rise to the Constitution that was written in 1787, a document so 
magnificent that author Flexner has said, never before in history had 
people gathered together to write a document by which people can govern 
themselves.
  Two of the people who had a tremendous impact on that Constitution 
were Hamilton and Madison. Hamilton said, in Federalist Paper 78, ``The 
judiciary has no influence over either the sword or the purse, no 
direction either of the strength or of the wealth of the society.''
  And Madison said in Federalist Paper 33, ``What is a power but the 
ability or faculty of doing a thing? What is the power of laying and 
collecting taxes but a legislative power?''
  And so powerful were those words, Mr. Chairman, that they were 
written into article 1, section 7, that said, ``All bills for raising 
revenue shall originate in the House of Representatives.'' It is very 
clear, any Federal attempt to raise taxes must come in the people's 
House, and it must come by people who have to stand for reelection 
every 2 years.
  But history has not proved that out, because it is not only in Kansas 
City, Missouri, where the judge has raised $2 billion worth of taxes, 
but it is in Rockford, Illinois, where an unelected magistrate ordered 
the members of the school board to either raise taxes or go to jail for 
the purpose of implementing a desegregation plan.
  That is taxation without representation, and that is why we are here 
today, because Madison compelled it whenever one branch of government 
would become predominant over the other. In fact, in number 47 he said, 
``The accumulation of all powers, legislative, executive, and 
judiciary, in the same hands, whether of one, a few, or many, and 
whether hereditary, self-appointed, or elective, may justly be 
pronounced the very definition of tyranny.''
  We are here, perhaps for the first time since the Constitution was 
adopted, perhaps for the first time that the House of Representatives 
has been here in existence, for the first time in history, to argue 
Congress should take back from the judges the power to tax.
  Mr. BERMAN. Mr. Chairman, I rise in opposition to H.R. 1252. There 
are many in this chamber who from time to time have disagreed with 
decisions rendered by federal judges. Count me among them. But I have 
always felt that our independent life-tenured federal judiciary is one 
of the glories of the American system of government, and that efforts 
by

[[Page H2252]]

the Congress to retaliate against particular decisions are inimical to 
our larger stake in the preservation of the American constitutional 
system.
  That is why I am so strongly opposed to H.R. 1252. It is simply wrong 
to manipulate court jurisdiction and procedure as this bill would do to 
try to make it more or less likely that the federal courts will reach 
particular results.
  I am particularly concerned that H.R. 1252 seeks to strip the 
remedial power of the federal courts, to the detriment of all 
Americans. By prohibiting a federal district court from entering any 
order or approving any settlement that could require a state or local 
government to raise taxes--and applying this provision to pending 
cases, to boot--the bill deprives all Americans of effective recourse 
for the vindication of their rights under federal law. As critics have 
noted, Brown v. Board of Education required expenditures to desegregate 
the public schools. Would the proponents of this bill suggest that the 
authority of the federal courts should have been limited to declaring 
segregation unconstitutional, and the courts barred from ordering 
desegregation?
  And on the very week that we celebrate Earth Day, please do not tell 
me that we are going to deprive the federal judiciary of the ability to 
effectively enforce the nation's environmental laws. For all these 
reasons, I urge support for the amendment to be offered by our 
colleagues Mr. Delahunt and Mr. Boehlert to strike Section 5 of the 
bill.
  I also note with great concern that Section 6 of the bill would grant 
parties in federal court the right to remove the judge randomly 
assigned to their case. Because due process guarantees an impartial 
judge, under current law a party can seek to remove a judge for bias or 
prejudice. But to go further and allow peremptory strikes is to 
``replace the traditional process with a dangerous alternative. * * * 
We would be wrong to buy into a proposed reform whose basic effect is 
to influence judges through considerations extrinsic to the merits of a 
case.'' That is the analysis of the eminent Chief Judge of the 4th 
Circuit, J. Harvie Wilkinson, widely viewed as a conservative 
Republican jurist. Why would we seek to introduce strategic judge-
shopping based on a judge's race, gender, or experience before taking 
the bench, into what is now the impeccably random assignment of judges 
to cases, and in so doing risk chilling decisionmaking in difficult 
cases?
  I am heartened that my neighbor and colleague form California, Mr. 
Rogan, will join in seeking to strike Section 6 later today. In light 
of his experience as a judge, I hope my colleagues will carefully 
consider the concerns which prompt him to offer his amendment.
  I also want to make note of Section 2 of the bill, which would bring 
back into federal judicial practice a mechanism largely discarded by 
Congress in 1976 as inefficient and unwieldy, namely three judge panels 
in the district court. Section 2 would require a three judge court in 
all cases involving constitutional challenges to state referenda and 
initiatives. The authority of the federal judiciary to hear and decide 
constitutional questions, including challenges to state laws, should 
not turn on whether the challenged law was enacted by a state 
legislature or by a state's voters. Indeed, Section 2 would create the 
anomalous result that identical laws adopted by two different states 
would be treated completely differently by the federal courts. Because 
appeals of decisions of three judge courts are heard on an expedited 
basis by the Supreme Court without the benefit of circuit court review, 
the laws of those states where the referendum and initiative processes 
do not exist could be placed at a disadvantage. Why would we do that?
  In all of these instances, I believe the legislation before us 
threatens the independence of the federal judiciary and imposes 
increased delays and costs for our constituents who seek recourse in 
the federal courts. This legislation endangers the balance among the 
branches of government so carefully wrought by the Founding Fathers and 
threatens the vindication of our constitutional rights. I urge its 
defeat.
  Mr. PACKARD. Mr. Chairman, today we will consider the Judicial Reform 
Act, a piece of legislation that will curb judicial activism by 
restraining judges who use their authority to advance political agenda 
rather than uphold the laws set forth in the Constitution. As it stands 
now, federal, district and circuit court judges yield an enormous 
amount of power, and yet are accountable to no one. They are not 
elected, but are appointed for life.
  Judicial activism has taken its hold throughout the country. 
Recently, a federal judge in California declared State proposition 187 
unconstitutional, succumbing to political pressures rather than 
preserving the liberties of law-abiding citizens. Now illegal 
immigrants will enjoy public benefits at the expense of American 
taxpayers. Proposition 187 was a ballot initiative that was studied and 
passed by voters in California. One individual had the power to 
overturn a statute that was agreed upon by a majority of the 
electorate. Mr. Speaker, this is not democratic and it is far from 
constitutional!
  The Judicial Reform Act will restrict judges who practice judicial 
activism, designating a panel of judges to review U.S. district court 
decisions when they may be perceived as unconstitutional. Establishing 
new rules is the only way to halt this growing problem. Mr. Speaker, I 
urge my colleagues to take a closer look at how judicial activism is 
negatively impacting their constituents and to support the Judicial 
Reform Act.
  Mr. TANNER. Mr. Chairman, I rise today to bring to the attention of 
my colleagues a particular provision of H.R. 1252--section seven: 
random assignment of habeas corpus cases.
  This section was added to the bill as a result of the testimony of 
one of my constituents, Mrs. Charlotte Stout of Greenfield, Tennessee. 
I'd like to submit the testimony of Mrs. Stout for the record since I 
can't hope to duplicate her eloquent effort.
  Before I begin, let me first say that I understand the difficulty 
facing this House in that judicial independence is a cornerstone of our 
democracy; but independence does not mean that we as a co-equal branch 
of government abdicate all responsibility for seeing that justice is 
done in this country. This House has heard all to often that justice 
delayed is justice denied. This is yet another unfortunate incident 
where this valid statement applies. I believe we do have a solemn duty 
to respond to injustice whenever and wherever we can.
  This section is a response to an injustice and I commend Chairman 
Coble and his staff for working diligently with me and Mr. Delahunt to 
add this important provision.
  The story of Charlotte Stout's daughter, Cary Ann Medlin is one which 
is too gruesome and too cruel to recount fully and I won't further 
their suffering by a detailed account--neither would Charlotte want me 
to. She is not an avenging mother, but a compassionate concerned woman 
who wants justice for not only herself, but all victims of crime.
  On September 1, 1979 her daughter Cary Ann Medlin, age 9, went out to 
ride her bicycle for a few minutes before dinner. Charlotte never saw 
her alive again. A man, by his own confession, brutally raped, 
sodomized, and murdered her small child. This man was brought to trial 
in 1981 and sentenced to two life sentences and death by electrocution. 
This case was appealed in all the appropriate state courts.
  In 1992 this killer, filed his second petition for habeas corpus 
relief in the federal court. In December of 1996, after being 
reprimanded for delay by the chief judge of the district, the judge 
finally ruled on this case after having it in his court for 4 years and 
10 months.
  While this one woman's ordeal through the federal court system has 
made the constituents of my district question our judicial system and 
rightly so, Charlotte did not come to Washington to testify about an 
isolated, single case.
  This federal judge in the middle district of Tennessee, after very 
lengthy delays, has overturned 100% of all death penalty cases on which 
he has reached a final decision. Five to ten years is the norm in this 
judges court and in my view this is unacceptable. This judge delayed 
eight capital cases a combined total of over 66 years.
  The citizens of Tennessee are concerned that since the reinstatement 
of the death penalty in 1977, this judge has received almost 100% of 
the cases prior to 1990. He did not transfer the cases back to the 
district of origin, nor did he recuse himself in hearing the cases. The 
lengthy and constant delays in these capital cases has resulted in the 
victims of crime being denied justice. That is wrong; that is an 
injustice; and I support this section as a minor response to a grave 
injustice which if left unchecked could threaten the very credibility 
of the judiciary.
  Again, I thank the Subcommittee for hearing the testimony of Mrs. 
Charlotte Stout from Greenfield, Tennessee and the mother of Cary Ann 
Medlin.

 House Subcommittee on Courts and Intellectual Properties--Summary of 
           Written Testimony by Charlotte Stout, May 15, 1997

       I am not here today as an avenging mother. I am not here 
     because a Federal Judge overturned one isolated death penalty 
     case. If that were the case, you could discredit me as an 
     emotional extremist and I would be wasting this committee's 
     and my time. I represent almost 27,000 others who are 
     concerned with and perceive a grave miscarriage of justice in 
     Tennessee. The source of our concern is life-time appointed 
     Federal Judge John Nixon of the Middle Tennessee District.
       Judge Nixon has delayed eight counted death penalty cases a 
     compiled total of 65 years and 7 months. He has then 
     overturned 100% of all death penalty cases on which he has 
     reached a final decision. If our concern stemmed from one 
     isolated decision, then I would also call attention to Judge 
     Morton of Middle Tennessee who has also overturned a death 
     penalty case. Our concerns stems from several reasons, not 
     just Judge Nixon's decision on one case. We are concerned 
     with the

[[Page H2253]]

     consistency with which Judge Nixon makes his decisions. We 
     are concerned about the inordinate delays on death penalty 
     cases in his court. We are concerned because of his 
     misconduct in office by accepting an award from a group who 
     has a previously stated controversial point of view on a 
     legal issue. We are concerned with the amount of financial 
     reimbursement he has authorized in capital cases. We are 
     concerned that since the reinstatement of capital punishment 
     in Tennessee in 1977, Judge Nixon received almost 100% of the 
     cases prior to 1990. He did not transfer the cases back to 
     the district of origin, nor did he recuse himself from 
     hearing the cases. And finally, we are concerned about the 
     system for filing judicial complaints. Twelve (12) complaints 
     were officially filed against Judge Nixon in the 6th Circuit 
     Court. These were reviewed by a judge who is his peer and 
     social acquaintance.
       From the Governor, (and past Governor) to the ``blue-
     collar'' workers, from East Tennessee to West Tennessee, 
     thousands believe that Judge Nixon is opposed to capital 
     punishment and is allowing his personal convictions to 
     obstruct the law of the State of Tennessee. Tennessee Senate 
     Joint Resolution 41 has been proposed by Senator Tommy Burks 
     which is a resolution memorializing the U.S. Congress to 
     initiate impeachment proceedings against U.S. District Court 
     Judge John T. Nixon. We believe, Judge Nixon who is appointed 
     for a life-time term, will continue to overturn death penalty 
     convictions and order new trials, if he is allowed to 
     continue in his historic path. I cannot begin to elaborate on 
     the number of newspaper editorials, TV news segments, and 
     public commentaries that have been expressed against Judge 
     Nixon. A Federal Judge, who is appointed for life is holding 
     the citizens of Tennessee ``hostage'' to his conscientious 
     beliefs. He does have the right to his beliefs. No one 
     disputes that. But when those beliefs interfere with the 
     administration of justice and the performance of his duties 
     as an officer of the court, he should be removed or at the 
     very least restrained. Capital punishment has been ruled to 
     be constitutionally appropriate. How then, can one individual 
     be allowed to hold his beliefs above the law because he is a 
     Federal Judge? He is frustrating the entire legal system in 
     our state. To what purpose do our law enforcement officers, 
     prosecuting attorneys, Judges and courts spend countless 
     hours and taxpayer dollars to bring criminals to swift and 
     sound justice. How can due process be served when delays of 
     10 years exist in one court? A fair trial after two decades 
     will be impossible for any of these cases. What a tragedy if 
     any one of these men is innocent. What a tragedy if they are 
     guilty and allowed to abuse the system. What a tragedy if a 
     Federal Judge is allowed flagrant misconduct in office and 
     our elected Representatives refuse to act for the sake of 
     protecting the independence of the judiciary. The framers of 
     our Constitution surely never intended for one branch of the 
     government to act completely independent of the other two 
     branches. If that were the case, there would be no true 
     system of checks and balances.
       We realize that only 15 judges have ever been brought up on 
     impeachment charges and only seven of them have been 
     convicted and removed from the bench. We realize the grounds 
     for impeachment are complex. The Constitution sets the 
     framework for impeachment and defines an impeachable offense 
     as ``High crimes or misdemeanors'' but also states that 
     judges who have lifetime appointments must be of ``good 
     behavior''. Our elected Representatives can define the 
     parameters of good behavior. On April 9, 1996, Chief Justice 
     of the U.S. Supreme Court William Rehnquist said to the 
     Washington College of Law, ``It would be a mistake to think 
     that just because a certain kind of judicial business has 
     always been conducted in a particular way in the past, it 
     therefore ought to be conducted that way in the future.''
       We, the people, have only one voice, the voice of our 
     elected Representatives.
  The CHAIRMAN. All time has expired.
  The amendment in the nature of a substitute printed in the bill, 
modified by striking section 9 and redesignating each succeeding 
section accordingly, shall be considered by sections as an original 
bill for the purpose of amendment. Pursuant to the rule, each section 
is considered as read.
  During consideration of the bill for amendment, the Chair may accord 
priority in recognition to a Member offering an amendment that he has 
printed in the designated place in the Congressional Record. Those 
amendments will be considered as read.
  The Chairman of the Committee of the Whole may postpone a request for 
a recorded vote on any amendment, and may reduce to a minimum of 5 
minutes the time for voting on any postponed question that immediately 
follows another vote, provided that the time for voting on the first 
question shall be a minimum of 15 minutes.
  The Clerk will designate section 1.
  The text of section 1 is as follows:
       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Judicial Reform Act of 
     1998''.

  The CHAIRMAN. Are there any amendments to section 1?
  Mr. COBLE. Mr. Chairman, I ask unanimous consent that the remainder 
of the amendment in the nature of a substitute, as modified, be printed 
in the Record and open to amendment at any point.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
North Carolina?
  There was no objection.
  The text of the remainder of the amendment in the nature of a 
substitute, as modified, is as follows:

     SEC. 2. 3-JUDGE COURT FOR ANTICIPATORY RELIEF.

       (a) Requirement of 3-Judge Court.--Any application for 
     anticipatory relief against the enforcement, operation, or 
     execution of a State law adopted by referendum shall not be 
     granted by a United States district court or judge thereof 
     upon the ground that the State law is repugnant to the 
     Constitution, treaties, or laws of the United States unless 
     the application for anticipatory relief is heard and 
     determined by a court of 3 judges in accordance with section 
     2284 of title 28, United States Code. Any appeal of a 
     determination on such application shall be to the Supreme 
     Court. In any case to which this section applies, the 
     additional judges who will serve on the 3-judge court shall 
     be designated under section 2284(b)(1) of title 28, United 
     States Code, as soon as practicable, and the court shall 
     expedite the consideration of the application for 
     anticipatory relief.
       (b) Definitions.--As used in this section--
       (1) the term ``State'' means each of the several States and 
     the District of Columbia;
       (2) the term ``State law'' means the constitution of a 
     State, or any statute, rule, regulation, or other measure of 
     a State that has the force of law, and any amendment thereto;
       (3) the term ``referendum'' means the submission to popular 
     vote, by the voters of the State, of a measure passed upon or 
     proposed by a legislative body or by popular initiative; and
       (4) the term ``anticipatory relief'' means an interlocutory 
     or permanent injunction or a declaratory judgment.
       (c) Effective Date.--This section applies to any 
     application for anticipatory relief that is filed on or after 
     the date of the enactment of this Act.

     SEC. 3. INTERLOCUTORY APPEALS OF COURT ORDERS RELATING TO 
                   CLASS ACTIONS.

       (a) Interlocutory Appeals.--Section 1292(b) of title 28, 
     United States Code, is amended--
       (1) by inserting ``(1)'' after ``(b)''; and
       (2) by adding at the end the following:
       ``(2) A party to an action in which the district court has 
     made a determination of whether the action may be maintained 
     as a class action may make application for appeal of that 
     determination to the court of appeals which would have 
     jurisdiction of an appeal of that action. The court of 
     appeals may, in its discretion, permit the appeal to be taken 
     from such determination if the application is made within 10 
     days after the entry of the court's determination relating 
     to the class action. Application for an appeal under this 
     paragraph shall not stay proceedings in the district court 
     unless the district judge or the court of appeals or a 
     judge thereof shall so order.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     applies to any action commenced on or after the date of the 
     enactment of this Act.

     SEC. 4. PROCEEDINGS ON COMPLAINTS AGAINST JUDICIAL CONDUCT.

       (a) Referral of Proceedings to Another Judicial Circuit or 
     Court.--Section 372(c) of title 28, United States Code, is 
     amended--
       (1) in paragraph (1) by adding at the end the following: 
     ``In the case of a complaint so identified, the chief judge 
     shall notify the clerk of the court of appeals of the 
     complaint, together with a brief statement of the facts 
     underlying the complaint.'';
       (2) in paragraph (2) in the second sentence by inserting 
     ``or statement of facts underlying the complaint (as the case 
     may be)'' after ``copy of the complaint'';
       (3) in paragraph (3)--
       (A) by inserting ``(A)'' after ``(3)'';
       (B) by striking ``may--'' and all that follows through the 
     end of subparagraph (B) and inserting the following: ``may 
     dismiss the complaint if the chief judge finds it to be--
       ``(i) not in conformity with paragraph (1);
       ``(ii) directly related to the merits of a decision or 
     procedural ruling; or
       ``(iii) frivolous.''; and
       (C) by adding at the end the following:
       ``(B) If the chief judge does not enter an order under 
     subparagraph (A), then the complaint or (in the case of a 
     complaint identified under paragraph (1)) the statement of 
     facts underlying the complaint shall be referred to the chief 
     judge of another judicial circuit for proceedings under this 
     subsection (hereafter in this subsection referred to as the 
     `chief judge'), in accordance with a system established by 
     rule by the Judicial Conference, which prescribes the 
     circuits to which the complaints will be referred. The 
     Judicial Conference shall establish and submit to the 
     Congress the system described in the preceding sentence not 
     later than 180 days after the date of the enactment of the 
     Judicial Reform Act of 1998.
       ``(C) After expeditiously reviewing the complaint, the 
     chief judge may, by written order explaining the chief 
     judge's reasons, conclude the proceeding if the chief judge 
     finds that appropriate corrective action has been taken or 
     that action on the complaint is no longer necessary because 
     of intervening events.'';

[[Page H2254]]

       (4) in paragraph (4)--
       (A) by striking ``paragraph (3)'' and inserting ``paragraph 
     (3)(C)''; and
       (B) in subparagraph (A) by inserting ``(to which the 
     complaint or statement of facts underlying the complaint is 
     referred)'' after ``the circuit'';
       (5) in paragraph (5)--
       (A) in the first sentence by inserting ``to which the 
     complaint or statement of facts underlying the complaint is 
     referred'' after ``the circuit''; and
       (B) in the second sentence by striking ``the circuit'' and 
     inserting ``that circuit'';
       (6) in the first sentence of paragraph (15) by inserting 
     before the period at the end the following: ``in which the 
     complaint was filed or identified under paragraph (1)''; and
       (7) by amending paragraph (18) to read as follows:
       ``(18) The Judicial Conference shall prescribe rules, 
     consistent with the preceding provisions of this subsection--
       ``(A) establishing procedures for the filing of complaints 
     with respect to the conduct of any judge of the United States 
     Court of Federal Claims, the Court of International Trade, or 
     the Court of Appeals for the Federal Circuit, and for the 
     investigation and resolution of such complaints; and
       ``(B) establishing a system for referring complaints filed 
     with respect to the conduct of a judge of any such court to 
     any of the first eleven judicial circuits or to another court 
     for investigation and resolution.

     The Judicial Conference shall establish and submit to the 
     Congress the system described in subparagraph (B) not later 
     than 180 days after the date of the enactment of the Judicial 
     Reform Act of 1998.''.
       (b) Disclosure of Information.--Section 372(c)(14) of title 
     28, United States Code, is amended--
       (1) in subparagraph (B) by striking ``or'' after the 
     semicolon;
       (2) in subparagraph (C) by striking the period at the end 
     and inserting ``; or''; and
       (3) by adding after subparagraph (C) the following:
       ``(D) such disclosure is made to another agency or 
     instrumentality of any governmental jurisdiction within or 
     under the control the United States for a civil or criminal 
     law enforcement activity authorized by law.''.
       (c) Effective Date.--The amendments made by subsection (a) 
     apply to complaints filed on or after the 180th day after the 
     date of the enactment of this Act.

     SEC. 5. LIMITATION ON COURT-IMPOSED TAXES.

       (a) Limitation.--Chapter 85 of title 28, United States 
     Code, is amended by adding at the end the following new 
     section:

     ``Sec. 1369. Limitation on Federal court remedies

       ``(a) Limitation on Court-Imposed Taxes.--(1) No district 
     court may enter any order or approve any settlement that 
     requires any State, or political subdivision of a State, to 
     impose, increase, levy, or assess any tax, unless the court 
     finds by clear and convincing evidence, that--
       ``(A) there are no other means available to remedy the 
     deprivation of a right under the Constitution of the United 
     States;
       ``(B) the proposed imposition, increase, levying, or 
     assessment is narrowly tailored to remedy the specific 
     deprivation at issue so that the remedy imposed is directly 
     related to the harm caused by the deprivation;
       ``(C) the tax will not contribute to or exacerbate the 
     deprivation intended to be remedied;
       ``(D) plans submitted to the court by State and local 
     authorities will not effectively redress the deprivations at 
     issue;
       ``(E) the interests of State and local authorities in 
     managing their affairs are not usurped, in violation of the 
     Constitution, by the proposed imposition, increase, levying, 
     or assessment; and
       ``(F) the proposed tax will not result in the loss or 
     depreciation of property values of the taxpayers who are 
     affected.
       ``(2) The limitation contained in paragraph (1) shall apply 
     only to any order or settlement which--
       ``(A) expressly directs any State, or political subdivision 
     of a State, to impose, increase, levy, or assess any tax; or
       ``(B) will necessarily require a State, or political 
     subdivision of a State, to impose, increase, levy, or assess 
     any tax.
       ``(3) If the court finds that the conditions set forth in 
     paragraph (1) have been satisfied, it shall enter an order 
     incorporating that finding, and that order shall be subject 
     to immediate interlocutory de novo review.
       ``(4) A remedy permitted under paragraph (1) shall not 
     extend beyond the case or controversy before the court.
       ``(5)(A) Notwithstanding any law or rule of procedure, any 
     person or entity whose tax liability would be directly 
     affected by the imposition of a tax under paragraph (1) shall 
     have the right to intervene in any proceeding concerning the 
     imposition of the tax, except that the court may deny 
     intervention if it finds that the interest of that person or 
     entity is adequately represented by existing parties.
       ``(B) A person or entity that intervenes pursuant to 
     subparagraph (A) shall have the right to--
       ``(i) present evidence and appear before the court to 
     present oral and written testimony; and
       ``(ii) appeal any finding required to be made by this 
     section, or any other related action taken to impose, 
     increase, levy, or assess the tax that is the subject of the 
     intervention.
       ``(b) Termination of Orders.--Notwithstanding any law or 
     rule of procedure, any order of, or settlement approved by, a 
     district court requiring the imposition, increase, levy, or 
     assessment of a tax pursuant to subsection (a)(1) shall 
     automatically terminate or expire on the date that is--
       ``(1) 1 year after the date of the imposition of the tax; 
     or
       ``(2) an earlier date, if the court determines that the 
     deprivation of rights that is addressed by the order or 
     settlement has been cured to the extent practicable.

     Any new such order or settlement relating to the same issue 
     is subject to all the requirements of this section.
       ``(c) Preemption.--This section shall not be construed to 
     preempt any law of a State or political subdivision thereof 
     that imposes limitations on, or otherwise restricts the 
     imposition of, a tax, levy, or assessment that is imposed in 
     response to a court order or settlement referred to in 
     subsection (b).
       ``(d) Additional Restrictions on Court Action.--(1) Except 
     as provided in paragraph (2), nothing in this section may be 
     construed to allow a Federal court to, for the purpose of 
     funding the administration of an order or settlement referred 
     to in subsection (b), use funds acquired by a State or 
     political subdivision thereof from a tax imposed by the State 
     or political subdivision thereof.
       ``(2) Paragraph (1) does not apply to any tax, levy, or 
     assessment that may, in accordance with applicable State or 
     local law, be used to fund the actions of a State or 
     political subdivision thereof in meeting the requirements of 
     an order or settlement referred to in subsection (b).
       ``(e) Notice to States.--The court shall provide written 
     notice to a State or political subdivision thereof subject to 
     an order or settlement referred to in subsection (b) with 
     respect to any finding required to be made by the court under 
     subsection (a). Such notice shall be provided before the 
     beginning of the next fiscal year of that State or political 
     subdivision occurring after the order or settlement is 
     issued.
       ``(f) Special Rules.--For purposes of this section--
       ``(1) the District of Columbia shall be considered to be a 
     State; and
       ``(2) any Act of Congress applicable exclusively to the 
     District of Columbia shall be considered to be a statute of 
     the District of Columbia.''.
       (b) Conforming Amendment.--The table of contents for 
     chapter 85 of title 28, United States Code, is amended by 
     adding after the item relating to section 1368 the following 
     new item:

``1369. Limitation on Federal court remedies.''.

       (c) Statutory Construction.--Nothing contained in this 
     section or the amendments made by this section shall be 
     construed to make legal, validate, or approve the imposition 
     of a tax, levy, or assessment by a United States district 
     court or a spending measure required by a United States 
     district court.
       (d) Effective Date.--This section and the amendments made 
     by this section shall apply with respect to any action or 
     other proceeding in a Federal court that is pending on, or 
     commenced on or after, the date of the enactment of this Act, 
     and the 1-year limitation set forth in subsection (b) of 
     section 1369 of title 28, United States Code, as added by 
     this section, shall apply to any court order or settlement 
     described in subsection (a)(1) of such section 1369, that is 
     in effect on the date of the enactment of this Act.

     SEC. 6. REASSIGNMENT OF CASE AS OF RIGHT.

       (a) In General.--Chapter 21 of title 28, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 464. Reassignment of cases upon motion by a party

       ``(a) Upon Motion.--(1) If all parties on one side of a 
     civil case to be tried in a United States district court 
     described in subsection (e) bring a motion to reassign the 
     case, the case shall be reassigned to another appropriate 
     judicial officer. Each side shall be entitled to one 
     reassignment without cause as a matter of right.
       ``(2) If any question arises as to which parties should be 
     grouped together as a side for purposes of this section, the 
     chief judge of the court of appeals for the circuit in which 
     the case is to be tried, or another judge of the court of 
     appeals designated by the chief judge, shall determine that 
     question.
       ``(b) Requirements for Bringing Motion.--(1) Subject to 
     paragraph (2), a motion to reassign under this section shall 
     not be entertained unless it is brought, not later than 20 
     days after notice of the original assignment of the case, to 
     the judicial officer to whom the case is assigned for the 
     purpose of hearing or deciding any matter. Such motion shall 
     be granted if--
       ``(A) it is presented before trial or hearing begins and 
     before the judicial officer to whom it is presented has ruled 
     on any substantial issue in the case, or
       ``(B) it is presented by consent of the parties on all 
     sides.
       ``(2) Notwithstanding paragraph (1)--
       ``(A) a party joined in a civil action after the initial 
     filing may, with the concurrence of the other parties on the 
     same side, bring a motion under this section within 20 days 
     after the service of the complaint on that party;
       ``(B) a party served with a supplemental or amended 
     complaint or a third-party complaint in a civil action may, 
     with the concurrence of the other parties on the same side, 
     bring a motion under this section within 20 days after 
     service on that party of the supplemental, amended, or third-
     party complaint; and
       ``(C) rulings in a case by the judicial officer on any 
     substantial issue before a party who has not been found in 
     default enters an appearance in the case shall not be grounds 
     for denying an otherwise timely and appropriate motion 
     brought by that party under this section.
       ``(3) No motion under this section may be brought by the 
     party or parties on a side in a case if any party or parties 
     on that side have previously brought a motion to reassign 
     under this section in that case.
       ``(c) Costs of Travel to New Location.--(1) If a motion to 
     reassign brought under this section requires a change in 
     location for purposes

[[Page H2255]]

     of appearing before a newly assigned judicial officer, the 
     party or parties bringing the motion shall pay the reasonable 
     costs incurred by the parties on different sides of the case 
     in travelling to the new location for all matters associated 
     with the case requiring an appearance at the new location. In 
     a case in which both sides bring a motion to reassign under 
     this section that requires a change in location, the party or 
     parties bringing the motions on both sides shall split the 
     travelling costs referred to in the preceding sentence.
       ``(2) For parties financially unable to obtain adequate 
     representation, the Government shall pay the reasonable costs 
     under paragraph (1).
       ``(d) Definition.--As used in this section, the term 
     `appropriate judicial officer' means--
       ``(1) a United States magistrate judge in a case referred 
     to such a magistrate judge; and
       ``(2) a United States district court judge in any other 
     case before a United States district court.
       ``(e) District Courts That May Authorize Reassignment.--The 
     district courts referred to in subsection (a) are the 
     district courts for the 21 judicial districts for which the 
     President is directed to appoint the largest numbers of 
     permanent judges.
       ``(f) 3-Judge Court Cases Excluded.--This section shall not 
     apply to any civil action required to be heard and determined 
     by a district court of 3 judges.''.
       (b) Clerical Amendment.--The table of contents for chapter 
     21 of title 28, United States Code, is amended by adding at 
     the end the following new item:

``464. Reassignment of cases upon motion by a party.''.

       (c) Monitoring.--The Federal Judicial Center shall monitor 
     the use of the right to bring a motion to reassign a case 
     under section 464 of title 28, United States Code, as added 
     by subsection (a) of this section, and shall report annually 
     to the Congress its findings on the basis of such monitoring.
       (d) Sunset.--Effective 5 years after the date of the 
     enactment of this Act, section 464 of title 28, United States 
     Code, and the item relating to that section in the table of 
     contents for chapter 21 of such title, are repealed, except 
     that such repeal shall not affect civil cases reassigned 
     under such section 464 before the date of repeal.

     SEC. 7. RANDOM ASSIGNMENT OF HABEAS CORPUS CASES.

       Section 2241 of title 28, United States Code, is amended by 
     adding at the end the following:
       ``(e) Applications for writs of habeas corpus received in 
     or transferred to a district court shall be randomly assigned 
     to the judges of that court.''.

     SEC. 8. AUTHORITY OF PRESIDING JUDGE TO ALLOW MEDIA COVERAGE 
                   OF APPELLATE COURT PROCEEDINGS.

       (a) Authority of Appellate Courts.--Notwithstanding any 
     other provision of law, the presiding judge of an appellate 
     court of the United States may, in his or her discretion, 
     permit the photographing, electronic recording, broadcasting, 
     or televising to the public of court proceedings over which 
     that judge presides.
       (b) Authority of District Courts.--Notwithstanding any 
     other provision of law, any presiding judge of a district 
     court of the United States may, in his or her discretion, 
     permit the photographing, electronic recording, broadcasting, 
     or televising to the public of court proceedings over which 
     that judge presides.
       (c) Advisory Guidelines.--The Judicial Conference of the 
     United States is authorized to promulgate advisory guidelines 
     to which a presiding judge, in his or her discretion, may 
     refer in making decisions with respect to the management and 
     administration of photographing, recording, broadcasting, or 
     televising described in subsections (a) and (b).
       (d) Definitions.--As used in this section:
       (1) Presiding judge.--The term ``presiding judge'' means 
     the judge presiding over the court proceeding concerned. In 
     proceedings in which more than one judge participates, the 
     presiding judge shall be the senior active judge so 
     participating or, in the case of a circuit court of appeals, 
     the senior active circuit judge so participating, except 
     that--
       (A) in en banc sittings of any United States circuit court 
     of appeals, the presiding judge shall be the chief judge of 
     the circuit whenever the chief judge participates; and
       (B) in en banc sittings of the Supreme Court of the United 
     States, the presiding judge shall be the Chief Justice 
     whenever the Chief Justice participates.
       (2) Appellate court of the united states.--The term 
     ``appellate court of the United States'' means any United 
     States circuit court of appeals and the Supreme Court of the 
     United States.
       (e) Sunset.--The authority under subsection (b) shall 
     terminate on the date that is 3 years after the date of the 
     enactment of this Act.

     SEC. 9. MULTIPARTY, MULTIFORUM JURISDICTION OF DISTRICT 
                   COURTS.

       (a) Basis of Jurisdiction.--
       (1) In general.--Chapter 85 of title 28, United States 
     Code, is amended by adding at the end the following new 
     section:

     ``Sec. 1370. Multiparty, multiforum jurisdiction

       ``(a) In General.--The district courts shall have original 
     jurisdiction of any civil action involving minimal diversity 
     between adverse parties that arises from a single accident, 
     where at least 25 natural persons have either died or 
     incurred injury in the accident at a discrete location and, 
     in the case of injury, the injury has resulted in damages 
     which exceed $50,000 per person, exclusive of interest and 
     costs, if--
       ``(1) a defendant resides in a State and a substantial part 
     of the accident took place in another State or other 
     location, regardless of whether that defendant is also a 
     resident of the State where a substantial part of the 
     accident took place;
       ``(2) any two defendants reside in different States, 
     regardless of whether such defendants are also residents of 
     the same State or States; or
       ``(3) substantial parts of the accident took place in 
     different States.
       ``(b) Special Rules and Definitions.--For purposes of this 
     section--
       ``(1) minimal diversity exists between adverse parties if 
     any party is a citizen of a State and any adverse party is a 
     citizen of another State, a citizen or subject of a foreign 
     state, or a foreign state as defined in section 1603(a) of 
     this title;
       ``(2) a corporation is deemed to be a citizen of any State, 
     and a citizen or subject of any foreign state, in which it is 
     incorporated or has its principal place of business, and is 
     deemed to be a resident of any State in which it is 
     incorporated or licensed to do business or is doing business;
       ``(3) the term `injury' means--
       ``(A) physical harm to a natural person; and
       ``(B) physical damage to or destruction of tangible 
     property, but only if physical harm described in subparagraph 
     (A) exists;
       ``(4) the term `accident' means a sudden accident, or a 
     natural event culminating in an accident, that results in 
     death or injury incurred at a discrete location by at least 
     25 natural persons; and
       ``(5) the term `State' includes the District of Columbia, 
     the Commonwealth of Puerto Rico, and any territory or 
     possession of the United States.
       ``(c) Intervening Parties.--In any action in a district 
     court which is or could have been brought, in whole or in 
     part, under this section, any person with a claim arising 
     from the accident described in subsection (a) shall be 
     permitted to intervene as a party plaintiff in the action, 
     even if that person could not have brought an action in a 
     district court as an original matter.
       ``(d) Notification of Judicial Panel on Multidistrict 
     Litigation.--A district court in which an action under this 
     section is pending shall promptly notify the judicial panel 
     on multidistrict litigation of the pendency of the action.''.
       (2) Conforming amendment.--The table of sections at the 
     beginning of chapter 85 of title 28, United States Code, is 
     amended by adding at the end the following new item:

``1370. Multiparty, multiforum jurisdiction.''.

       (b) Venue.--Section 1391 of title 28, United States Code, 
     is amended by adding at the end the following:
       ``(g) A civil action in which jurisdiction of the district 
     court is based upon section 1370 of this title may be brought 
     in any district in which any defendant resides or in which a 
     substantial part of the accident giving rise to the action 
     took place.''.
       (c) Multidistrict Litigation.--Section 1407 of title 28, 
     United States Code, is amended by adding at the end the 
     following:
       ``(i)(1) In actions transferred under this section when 
     jurisdiction is or could have been based, in whole or in 
     part, on section 1370 of this title, the transferee district 
     court may, notwithstanding any other provision of this 
     section, retain actions so transferred for the determination 
     of liability and punitive damages. An action retained for the 
     determination of liability shall be remanded to the district 
     court from which the action was transferred, or to the State 
     court from which the action was removed, for the 
     determination of damages, other than punitive damages, unless 
     the court finds, for the convenience of parties and witnesses 
     and in the interest of justice, that the action should be 
     retained for the determination of damages.
       ``(2) Any remand under paragraph (1) shall not be effective 
     until 60 days after the transferee court has issued an order 
     determining liability and has certified its intention to 
     remand some or all of the transferred actions for the 
     determination of damages. An appeal with respect to the 
     liability determination and the choice of law determination 
     of the transferee court may be taken during that 60-day 
     period to the court of appeals with appellate jurisdiction 
     over the transferee court. In the event a party files such an 
     appeal, the remand shall not be effective until the appeal 
     has been finally disposed of. Once the remand has become 
     effective, the liability determination and the choice of law 
     determination shall not be subject to further review by 
     appeal or otherwise.
       ``(3) An appeal with respect to determination of punitive 
     damages by the transferee court may be taken, during the 60-
     day period beginning on the date the order making the 
     determination is issued, to the court of appeals with 
     jurisdiction over the transferee court.
       ``(4) Any decision under this subsection concerning remand 
     for the determination of damages shall not be reviewable by 
     appeal or otherwise.
       ``(5) Nothing in this subsection shall restrict the 
     authority of the transferee court to transfer or dismiss an 
     action on the ground of inconvenient forum.''.
       (d) Removal of Actions.--Section 1441 of title 28, United 
     States Code, is amended--
       (1) in subsection (e) by striking ``(e) The court to which 
     such civil action is removed'' and inserting ``(f) The court 
     to which a civil action is removed under this section''; 
     and
       (2) by inserting after subsection (d) the following new 
     subsection:
       ``(e)(1) Notwithstanding the provisions of subsection (b) 
     of this section, a defendant in a civil action in a State 
     court may remove the action to the district court of the 
     United States for the district and division embracing the 
     place where the action is pending if--
       ``(A) the action could have been brought in a United States 
     district court under section 1370 of this title, or

[[Page H2256]]

       ``(B) the defendant is a party to an action which is or 
     could have been brought, in whole or in part, under section 
     1370 in a United States district court and arises from the 
     same accident as the action in State court, even if the 
     action to be removed could not have been brought in a 
     district court as an original matter.

     The removal of an action under this subsection shall be made 
     in accordance with section 1446 of this title, except that a 
     notice of removal may also be filed before trial of the 
     action in State court within 30 days after the date on which 
     the defendant first becomes a party to an action under 
     section 1370 in a United States district court that arises 
     from the same accident as the action in State court, or at a 
     later time with leave of the district court.
       ``(2) Whenever an action is removed under this subsection 
     and the district court to which it is removed or transferred 
     under section 1407(i) has made a liability determination 
     requiring further proceedings as to damages, the district 
     court shall remand the action to the State court from which 
     it had been removed for the determination of damages, unless 
     the court finds that, for the convenience of parties and 
     witnesses and in the interest of justice, the action should 
     be retained for the determination of damages.
       ``(3) Any remand under paragraph (2) shall not be effective 
     until 60 days after the district court has issued an order 
     determining liability and has certified its intention to 
     remand the removed action for the determination of damages. 
     An appeal with respect to the liability determination and the 
     choice of law determination of the district court may be 
     taken during that 60-day period to the court of appeals with 
     appellate jurisdiction over the district court. In the event 
     a party files such an appeal, the remand shall not be 
     effective until the appeal has been finally disposed of. Once 
     the remand has become effective, the liability determination 
     and the choice of law determination shall not be subject to 
     further review by appeal or otherwise.
       ``(4) Any decision under this subsection concerning remand 
     for the determination of damages shall not be reviewable by 
     appeal or otherwise.
       ``(5) An action removed under this subsection shall be 
     deemed to be an action under section 1370 and an action in 
     which jurisdiction is based on section 1368 of this title for 
     purposes of this section and sections 1407, 1660, 1697, and 
     1785 of this title.
       ``(6) Nothing in this subsection shall restrict the 
     authority of the district court to transfer or dismiss an 
     action on the ground of inconvenient forum.''.
       (e) Choice of Law.--
       (1) Determination by the court.--Chapter 111 of title 28, 
     United States Code, is amended by adding at the end the 
     following new section:

     ``Sec. 1660. Choice of law in multiparty, multiforum actions

       ``(a) Factors.--In an action which is or could have been 
     brought, in whole or in part, under section 1370 of this 
     title, the district court in which the action is brought or 
     to which it is removed shall determine the source of the 
     applicable substantive law, except that if an action is 
     transferred to another district court, the transferee court 
     shall determine the source of the applicable substantive law. 
     In making this determination, a district court shall not be 
     bound by the choice of law rules of any State, and the 
     factors that the court may consider in choosing the 
     applicable law include--
       ``(1) the place of the injury;
       ``(2) the place of the conduct causing the injury;
       ``(3) the principal places of business or domiciles of the 
     parties;
       ``(4) the danger of creating unnecessary incentives for 
     forum shopping; and
       ``(5) whether the choice of law would be reasonably 
     foreseeable to the parties.

     The factors set forth in paragraphs (1) through (5) shall be 
     evaluated according to their relative importance with respect 
     to the particular action. If good cause is shown in 
     exceptional cases, including constitutional reasons, the 
     court may allow the law of more than one State to be applied 
     with respect to a party, claim, or other element of an 
     action.
       ``(b) Order Designating Choice of Law.--The district court 
     making the determination under subsection (a) shall enter an 
     order designating the single jurisdiction whose substantive 
     law is to be applied in all other actions under section 1370 
     arising from the same accident as that giving rise to the 
     action in which the determination is made. The substantive 
     law of the designated jurisdiction shall be applied to the 
     parties and claims in all such actions before the court, 
     and to all other elements of each action, except where 
     Federal law applies or the order specifically provides for 
     the application of the law of another jurisdiction with 
     respect to a party, claim, or other element of an action.
       ``(c) Continuation of Choice of Law After Remand.--In an 
     action remanded to another district court or a State court 
     under section 1407(i)(1) or 1441(e)(2) of this title, the 
     district court's choice of law under subsection (b) shall 
     continue to apply.''.
       (2) Conforming amendment.--The table of sections at the 
     beginning of chapter 111 of title 28, United States Code, is 
     amended by adding at the end the following new item:

``1660. Choice of law in multiparty, multiforum actions.''.

       (f) Service of Process.--
       (1) Other than subpoenas.--(A) Chapter 113 of title 28, 
     United States Code, is amended by adding at the end the 
     following new section:

     ``Sec. 1697. Service in multiparty, multiforum actions

       ``When the jurisdiction of the district court is based in 
     whole or in part upon section 1370 of this title, process, 
     other than subpoenas, may be served at any place within the 
     United States, or anywhere outside the United States if 
     otherwise permitted by law.''.
       (B) The table of sections at the beginning of chapter 113 
     of title 28, United States Code, is amended by adding at the 
     end the following new item:

``1697. Service in multiparty, multiforum actions.''.

       (2) Service of subpoenas.--(A) Chapter 117 of title 28, 
     United States Code, is amended by adding at the end the 
     following new section:

     ``Sec. 1785. Subpoenas in multiparty, multiforum actions

       ``When the jurisdiction of the district court is based in 
     whole or in part upon section 1370 of this title, a subpoena 
     for attendance at a hearing or trial may, if authorized by 
     the court upon motion for good cause shown, and upon such 
     terms and conditions as the court may impose, be served at 
     any place within the United States, or anywhere outside the 
     United States if otherwise permitted by law.''.
       (B) The table of sections at the beginning of chapter 117 
     of title 28, United States Code, is amended by adding at the 
     end the following new item:

``1785. Subpoenas in multiparty, multiforum actions.''.

       (g) Effective Date.--The amendments made by this section 
     shall apply to a civil action if the accident giving rise to 
     the cause of action occurred on or after the 90th day after 
     the date of the enactment of this Act.

     SEC. 10. APPEALS OF MERIT SYSTEMS PROTECTION BOARD.

       (a) Appeals.--Section 7703 of title 5, United States Code, 
     is amended--
       (1) in subsection (b)(1), by striking ``30'' and inserting 
     ``60''; and
       (2) in the first sentence of subsection (d), by inserting 
     after ``filing'' the following: ``, within 60 days after the 
     date the Director received notice of the final order or 
     decision of the Board,''.
       (b) Effective Date.--The amendments made by subsection (a) 
     take effect on the date of the enactment of this Act and 
     apply to any administrative or judicial proceeding pending on 
     that date or commenced on or after that date.

  The CHAIRMAN. Are there any amendments to the bill?


                     Amendment offered by Mr. Coble

  Mr. COBLE. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Coble:
       Add the following at the end:

     SEC. 11. EXTENSION OF JUDICIARY INFORMATION TECHNOLOGY FUND.

       Section 612 of title 28, United States Code, is amended--
       (1) by striking ``equipment'' each place it appears and 
     inserting ``resources'';
       (2) by striking subsection (f) and redesignating subsequent 
     subsections accordingly;
       (3) in subsection (g), as so redesignated, by striking 
     paragraph (3); and
       (4) in subsection (i), as so redesignated--
       (A) by striking ``Judiciary'' each place it appears and 
     inserting ``judiciary'';
       (B) by striking ``subparagraph (c)(1)(B)'' and inserting 
     ``subsection (c)(1)(B)''; and
       (C) by striking ``under (c)(1)(B)'' and inserting ``under 
     subsection (c)(1)(B)''.

     SEC. 12. OFFSETTING RECEIPTS.

       For fiscal year 1999 and thereafter, any portion of 
     miscellaneous fees collected as prescribed by the Judicial 
     Conference of the United States pursuant to sections 1913, 
     1914(b), 1926(a), 1930(b), and 1932 of title 28, United 
     States Code, exceeding the amount of such fees in effect on 
     September 30, 1998, shall be deposited into the special fund 
     of the Treasury established under section 1931 of title 28, 
     United States Code.

     SEC. 13. MEMBERSHIP IN CIRCUIT JUDICIAL COUNCILS.

       Section 332(a) of title 28, United States Code, is 
     amended--
       (1) by striking paragraph (1) and inserting the following:
       ``(1) The chief judge of each judicial circuit shall call 
     and preside at a meeting of the judicial council of the 
     circuit at least twice in each year and at such places as he 
     or she may designate. The council shall consist of an equal 
     number of circuit judges (including the chief judge of the 
     circuit) and district judges, as such number is determined by 
     majority vote of all such judges of the circuit in regular 
     active service.'';
       (2) by striking paragraph (3) and inserting the following:
       ``(3) Except for the chief judge of the circuit, either 
     judges in regular active service or judges retired from 
     regular active service under section 371(b) of this title may 
     serve as members of the council.''; and
       (3) by striking ``retirement,'' in paragraph (5) and 
     inserting ``retirement under section 371(a) or section 372(a) 
     of this title,''.

     SEC. 14. SUNSET OF CIVIL JUSTICE EXPENSE AND DELAY REDUCTION 
                   PLANS.

       Section 103(b)(2)(A) of the Civil Justice Reform Act of 
     1990 (Public Law 101-650; 104 Stat. 5096; 28 U.S.C. 471 
     note), as amended by Public Law 105-53 (111 Stat. 1173), is 
     amended by inserting ``471,'' after ``sections''.

     SEC. 15. CREATION OF CERTIFYING OFFICERS IN THE JUDICIAL 
                   BRANCH.

       (a) Appointment of Disbursing and Certifying Officers.--
     Chapter 41 of title 28, United States Code, is amended by 
     adding at the end the following new section:

     ``Sec. 613. Disbursing and certifying officers

       ``(a) Disbursing Officers.--The Director may designate in 
     writing officers and employees of the judicial branch of the 
     Government, including the courts as defined in section 610 
     other than the Supreme Court, to be

[[Page H2257]]

     disbursing officers in such numbers and locations as the 
     Director considers necessary. Such disbursing officers 
     shall--
       ``(1) disburse moneys appropriated to the judicial branch 
     and other funds only in strict accordance with payment 
     requests certified by the Director or in accordance with 
     subsection (b);
       ``(2) examine payment requests as necessary to ascertain 
     whether they are in proper form, certified, and approved; and
       ``(3) be held accountable for their actions as provided by 
     law, except that such a disbursing officer shall not be held 
     accountable or responsible for any illegal, improper, or 
     incorrect payment resulting from any false, inaccurate, or 
     misleading certificate for which a certifying officer is 
     responsible under subsection (b).
       ``(b) Certifying Officers.--(1) The Director may designate 
     in writing officers and employees of the judicial branch of 
     the Government, including the courts as defined in section 
     610 other than the Supreme Court, to certify payment requests 
     payable from appropriations and funds. Such certifying 
     officers shall be responsible and accountable for--
       ``(A) the existence and correctness of the facts recited in 
     the certificate or other request for payment or its 
     supporting papers;
       ``(B) the legality of the proposed payment under the 
     appropriation or fund involved; and
       ``(C) the correctness of the computations of certified 
     payment requests.
       ``(2) The liability of a certifying officer shall be 
     enforced in the same manner and to the same extent as 
     provided by law with respect to the enforcement of the 
     liability of disbursing and other accountable officers. A 
     certifying officer shall be required to make restitution to 
     the United States for the amount of any illegal, improper, or 
     incorrect payment resulting from any false, inaccurate, or 
     misleading certificates made by the certifying officer, as 
     well as for any payment prohibited by law or which did not 
     represent a legal obligation under the appropriation or fund 
     involved.
       ``(c) Rights.--A certifying or disbursing officer--
       ``(1) has the right to apply for and obtain a decision by 
     the Comptroller General on any question of law involved in a 
     payment request presented for certification; and
       ``(2) is entitled to relief from liability arising under 
     this section in accordance with title 31.
       ``(d) Other Authority Not Affected.--Nothing in this 
     section affects the authority of the courts with respect to 
     moneys deposited with the courts under chapter 129 of this 
     title.''.
       (b) Conforming Amendment.--The table of sections for 
     chapter 41 of title 28, United States Code, is amended by 
     adding at the end the following item:

``613. Disbursing and certifying officers.''.

       (c) Duties of Director.--Paragraph (8) of subsection (a) of 
     section 604 of title 28, United States Code, is amended to 
     read as follows:
       ``(8) Disburse appropriations and other funds for the 
     maintenance and operation of the courts;''.
       Page 17, line 12, strike ``appellate''.

  Mr. COBLE (during the reading). Mr. Chairman, I ask unanimous consent 
that the amendment be considered as read and printed in the Record.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
North Carolina?
  There was no objection.
  Mr. COBLE. Mr. Chairman, this is a technical amendment that contains 
no controversial provisions, but which will aid in making the judiciary 
function more efficiently, and will clarify certain provisions of the 
law as they pertain to the third branch.
  In short, the amendment will extend the Judiciary Information 
Technology Fund, allow the judiciary to retain any additional 
offsetting receipts derived from increases in miscellaneous fees 
charged in the Federal courts, enhance membership in Circuit Judicial 
Councils, sunset the Civil Justice Expense Plan, and create certifying 
officers in the judicial branch.
  I urge my colleagues to support this technical amendment, which I 
believe contains no controversial matter.
     Summary follows for purposes of questions or explanation
       Extension of the Judiciary Information Technology Fund: 
     This amendment eliminates the provision in the statute 
     authorizing the Judiciary Information Technology Fund, which 
     subjects the activities of this Fund to the management 
     process of the executive branch.
       Offsetting Receipts: This provision would allow the 
     judiciary to retain any additional offsetting receipts 
     derived from increases in miscellaneous fees charged in the 
     federal courts of appeals, district courts, bankruptcy 
     courts, the Court of Federal Claims, and the Judicial Panel 
     on Multi-district Litigation. This provision responds to a 
     directive from congressional appropriations committees that 
     the Judiciary identify ways to increase offsetting receipts.
       Membership in Circuit Judicial Councils: This section 
     amends 28 U.S.C. Sec. 332(a) to enhance judge participation 
     in the federal judiciary's internal governance process by 
     equalizing the representation of circuit judges and district 
     judges on circuit judicial councils and establishing the 
     eligibility of senior circuit and district judges to serve as 
     members of those councils.
       Sunset of Civil Justice Expense and Delay Reduction Plans: 
     This provision would clarify that section 103(b)(2)(A) of the 
     Civil Justice Reform Act is not to be extended. Provisions of 
     the Civil Justice Reform Act have lapsed. An amendment to 
     last year's Appropriations Act extended the reporting of old 
     cases, but unintentionally also extended this section of the 
     Act. This section was intended to sunset, but a technical 
     change is needed to clarify that intent. This simply 
     accomplishes that purpose.
       Creation of Certifying Officers in the Judicial Branch: 
     This section would enable the Director of the Administrative 
     Office of the United States Courts to appoint certifying 
     officials in the various court units who would be responsible 
     for the propriety of payments they request. It would also 
     enable the Director of the AO to appoint disbursing officials 
     in the various court units who would be responsible for 
     ensuring that payment requests are proper, certified and 
     approved.

  Mr. FRANK of Massachusetts. Mr. Chairman, I rise in support of the 
amendment.
  Mr. Chairman, I agree with the gentleman from North Carolina (Mr. 
Coble).
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from North Carolina (Mr. Coble).
  The amendment was agreed to.
  The CHAIRMAN. Are there other amendments?


                Amendment No. 3 offered by Mr. Delahunt

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

       Amendment No. 3 Offered by Mr. Delahunt:
       Page 9, strike lines 13 through 20 and insert the 
     following:
       ``(2) The limitation contained in paragraph (1) shall apply 
     only to any order or settlement which expressly directs any 
     State, or political subdivision of a State, to impose, 
     increase, levy, or assess any tax.
       Redesignate succeeding paragraphs accordingly.

  Mr. DELAHUNT. Mr. Chairman, some context is needed to understand this 
amendment. Reference was made earlier to the Missouri versus Jenkins 
case.
  Back in 1990, the Supreme Court rendered a decision involving the 
State of Missouri; and it held clearly that the Federal courts could 
not directly impose a tax levy on State or local governments. As far as 
I can tell, every member of the Committee on the Judiciary, on a 
bipartisan basis, understands and supports that concept. That is a 
principle everyone embraced.
  This amendment which I have filed with my colleague, the gentleman 
from New York (Mr. Boehlert), would simply do just that. Let me repeat, 
the amendment would prohibit a court from directly imposing a tax 
increase on State or local government, or any other political 
subdivision, for that matter, as a remedy for an illegal or wrongful 
action by that particular State or local government.
  This amendment, the Delahunt-Boehlert amendment, makes clear that the 
levying of taxes is not an appropriate judicial function. It leaves it 
to State and local governments to decide how to fund a judicial remedy 
to some illegal or wrongful action that they themselves are responsible 
for.
  It may involve spending cuts. It may involve borrowing. It may even 
involve raising taxes. But it is the State or local government's 
decision, not the court's decision, how to fund that particular remedy. 
That is what this amendment is all about. In fact, when I offered this 
amendment at the subcommittee it was agreed to.
  I might add, there was considerable discussion at that point in time. 
It was voted unanimously, on a voice vote. However, the bill came out 
of the full committee dramatically changed, changed to the point that 
it is now considered unconstitutional by hundreds of legal scholars.
  The Department of Justice also agrees, as it is presently drafted, it 
is of dubious constitutionality, and that based on these and other 
concerns with the bill, the Attorney General will absolutely recommend 
a veto unless amended.
  As presently written, a court could not even issue an order which 
would require a State or local government to

[[Page H2258]]

impose a tax. That is absurd. It is the end of an independent 
judiciary, because it is utterly meaningless for the courts to order a 
remedy without the ability to compel the wrongdoer to implement that 
remedy.
  Just imagine how State and local governments could flout court orders 
by simply claiming they did not have sufficient cash on hand to comply 
with the remedy. It is no exaggeration to say that a State or local 
government could very well avoid responsibility for its malfeasance in 
the operation of a sewage treatment plant that polluted our 
constituents' drinking water if this amendment fails. That is one of 
the reasons that every major environmental group in the country opposes 
the underlying bill.
  The bill as it now stands is worse than the perceived abuses it was 
meant to cure. Speaking to that issue of perceived abuses, let us be 
honest. Despite what we hear, there is no outbreak of judicial taxation 
cases in this country today. They simply do not exist.
  The truth is clear. It is very simple. The Federal courts have not 
directly imposed a tax, except for the single school desegregation 
case, Missouri versus Jenkins, which I referenced earlier and the 
gentleman from Illinois alluded to. That case was overturned in 1995 by 
a unanimous Supreme Court that rejected the concept of direct 
imposition of taxes by a Federal court.
  Adoption of the Delahunt-Boehlert amendment would accomplish the 
goals articulated by many of those who advocate judicial restraint. Let 
us exercise some common sense and support the Delahunt-Boehlert 
amendment.
  Mr. COBLE. Mr. Chairman, I rise in opposition to the amendment.
  Mr. Chairman, my good friend, the gentleman from Massachusetts and I 
generally agree on this matter. I am not in agreement with him. I 
appreciate his comments, but the amendment was defeated in full 
committee during markup.
  I think, Mr. Chairman, this probably would gut the judicial taxation 
provision of the bill. The amendment would allow a Federal judge to, in 
my opinion, circumvent section 5 of the bill in the following manner. 
The provisions constraining the ability of a judge to order a State or 
municipality to impose taxes on affected citizens would apply only if a 
judge expressly directed a tax.

                              {time}  1200

  To avoid the restrictions set forth in section 5, a judge, it seems 
to me, could simply order a State or municipality to construct a new 
school building, for example, according to particular specifications, 
without specifying how the project would be funded.
  The practical effect of this result, however, would be to compel the 
State or the municipality or whatever political subdivision to impose a 
tax if no other revenues were available. And I believe that the bill as 
written cures such a problem by applying section 5 to orders which 
expressly direct a tax or which necessarily require a tax. And for 
those reasons, Mr. Chairman, I oppose the amendment.
  Mr. BOEHLERT. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, I rise in strong support of the Delahunt-Boehlert 
amendment. What is at stake here is nothing less than whether we are 
going to exempt State and local governments from complying with a wide 
range of environmental and other laws. I do not think that Congress 
ought to be providing that sort of blanket exemption.
  I want to emphasize again that the issue here is whether we believe 
that States and localities ought to comply with the laws we pass. This 
is not about judicial activism or tax rates. Our amendment blocks 
judicial activism by keeping intact all of the provisions of section 5 
that prevent judges from imposing or raising taxes. Let me repeat that. 
Our amendment blocks judicial activism by keeping intact all of the 
provisions of section 5 that prevent judges from imposing or raising 
taxes.
  Courts ought not to be levying taxes and our amendment keeps them 
from doing so. But the language we are removing from the bill would do 
far more than prevent judges from overreaching. It would prevent judges 
from doing their jobs. It would prevent judges from taking actions that 
are required by law.
  For example, let us say a municipal waste treatment plant upstream 
from our town is discharging pollutants into a river, closing beaches 
in our town. We sue to get the sewage treatment plant to comply with 
the standards in the Clean Water Act. Under H.R. 1252, a judge could be 
unable to issue an order requiring compliance with the Clean Water Act, 
because doing so might lead the town to raise taxes.
  Even worse, if we and the town agreed to settle the case by the town 
agreeing voluntarily to fix the sewage treatment plant, H.R. 1252 could 
forbid the judge from approving the voluntary settlement. Yet, if an 
industry were discharging the same pollutants into the same river, a 
judge would be able to force the industry to comply.
  That is bad law. That is bad policy. And, quite simply, it is unfair.
  Virtually every environmental group, as well as the Judicial 
Conference of the United States, chaired by Chief Justice Rehnquist, 
oppose section 5 because of its perverse consequences such as the ones 
I have just outlined. And environmental laws are not the only ones that 
could become dead letters under this bill. The Americans with 
Disabilities Act, the Individuals with Disabilities Education Act, 
other civil rights statutes and worker protection statutes would also 
be affected. Indeed, one judge has noted that even the Brown v. Board 
of Education decision would have been difficult to enforce if H.R. 1252 
had been in effect.
  Section 5 as written would simply undermine the enforcement of our 
laws. If Congress does not like the laws, like the Clean Water Act, 
then we ought to rewrite them. But we will not do that because the laws 
have proven so successful and so immensely popular.
  If we think localities ought to get more Federal aid to comply with 
these laws, let us provide the money. I am fighting with the 
administration right now to increase the funding available for 
municipal sewage treatment plants.
  Those are all reasonable remedies. Preventing enforcement of statutes 
that are on the books is not a reasonable way to change the law. In 
fact, the approach in this bill is to offset, offer massive 
congressional overreaching to counteract an occasional and rare 
judicial overreaching. It is like hearing that one of our kids has 
misbehaved at school and responding by never sending any of our kids to 
school again.
  Mr. Chairman, I urge support for the Delahunt-Boehlert amendment. It 
will prevent judges from raising taxes while allowing the proper 
enforcement of legitimate laws to continue.
  Mr. MANZULLO. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, the Delahunt-Boehlert amendment would gut section 5. 
There is a legal fiction as to whether or not a court can order the 
increase of tax or a court can order a municipality to increase tax.
  Our bill provides in both situations a court will be prevented from 
directly or indirectly raising taxes. What the amendment does, it 
prevents a court from directly raising taxes, but all the courts have 
to do is to read Missouri versus Jenkins and instead of the court 
directly raising the tax, it says ``I am ordering you to raise the 
tax.''
  The Delahunt-Boehlert amendment would allow a Federal judge, as the 
judge in Rockford, Illinois, has done, to point to a duly elected 
school board and say, ``Either you raise taxes or you are going to 
jail.'' That is the purpose of section 5.
  If the amendment is adopted, the Delahunt-Boehlert amendment, it will 
not affect the situation. The judge can still do the same thing. And it 
is legal fiction which they are presenting before this body today to 
allow them to have all of the congressional mandates come before the 
Federal courts and for the Federal courts to say, local municipalities 
to comply, either raise taxes or go to jail. That is what this 
amendment is about.
  Mr. Chairman, I have letters here from people in Rockford, Illinois. 
Mr. Delahunt said he knew of no area in the country that is affected 
similarly to Kansas City, Missouri. Well, the same master in Kansas 
City, Missouri is now the master in Rockford, Illinois. Listen to this 
letter from Adam Lamarre:

       Dear Representative Manzullo, Thank you for the support you 
     gave limiting the powers of judges to impose taxes. My family 
     is considering moving out of Rockford because we can no 
     longer afford to pay high taxes.


[[Page H2259]]


  This is from Earl and Ann Young in Rockford:

       Dear Mr. Manzullo, we are very affected by Magistrate 
     Mahoney's rulings. We are senior citizen property owners in 
     Rockford School District 205, living on a fixed income, who 
     are being taxed out of our home!
       To add insult to injury, we did not live in Rockford when 
     the alleged discrimination took place, have never had 
     children in the Illinois school system, but we are judged 
     guilty because our House is in district 205.
       We would like you to tell us how can this one man,'' the 
     unelected magistrate responsible to no one, ``assume to have 
     all this power, and what action you are pursuing in 
     Washington.

  And a letter from Carol Angelico:

       I'm writing to you because of my saddened frustration that 
     no one can `fairly' resolve the unnecessary and overburdening 
     taxation problem in our City of Rockford.

  Oh, yes, the City of Rockford, with over 2,200 homes for sale in a 
city of less than 150,000 people. The City of Rockford, where the 
property values keep going down. The City of Rockford, where people are 
being taxed unmercifully and senior citizens come to my office with 
tears in their eyes and say, ``Congressman, we cannot afford to pay our 
taxes because the Federal magistrate raised our taxes. You represent 
us. You should be the one responsible, because if you raise taxes, I 
will remove you from office.''
  What we are doing today is historic, perhaps the first time in the 
history of this Republic in which Congress is trying to reclaim the 
ground where only we have the power in Federal situations to raise 
taxes, and to take it back from the courts and say that they do not 
have the power to raise taxes. That was not given to them.
  Hamilton expressly said, ``You shall not have it.'' Madison said, 
``You shall not have it.'' And Jefferson said, when writing about King 
George III, said, ``He has taxed us without representation.''
  This is what this Republic is about. Who is in control of raising 
taxes in this Republic? Is it the unelected judges appointed for life, 
or is it Members of the United States Congress who have to stand for 
reelection every 2 years?
  Delahunt-Boehlert guts section 5. It makes it meaningless, and I 
would urge my colleagues, especially those who voted yesterday that 
said this body can only raise taxes by having two-thirds of the vote, 
to say only this body can raise taxes and not the judiciary, and to 
vote against Delahunt-Boehlert.
  Mr. Chairman, I include the following for the Record:
                                                   April 12, 1997.
     Congressman Don Manzullo,
     Cannon House Office Bldg., Washington, DC.
       Congressman Manzullo: I'm writing to you because of my 
     saddened frustration that no one can ``Fairly'' resolve the 
     unnecessary and over-burdening taxation problem in our city 
     of Rockford.
       I'll clarify my above statement by getting to the point as 
     briefly as I can. A federal judge ``Mahoney'' ordered real 
     estate tax increases to pay for three (3) new schools (we 
     have closed schools in some areas and have been busing our 
     school children), this ruling was the result of a lawsuit 
     because a small group of people didn't like their school 
     being closed and it accelerated into a state of 
     ``ridiculous'' with an end result of lawyers fees, court 
     fees, and consultant fees already costing $100 million 
     dollars taken from a Tort Fund which was the money to be used 
     for the schools. This is not right!
       1st--A judge taxes us without any representation (our 
     forefathers started this country because of that reason).
       2nd--$100 million dollars spent not for our school 
     children, or schools but for lawyers, and consultants. That 
     money would have been better spent improving the education of 
     our children.
       My husband and I have filed a joint tax protest with other 
     people in town to no avail, and have spoken to our State 
     Rep's before only to hear a lot of rhetoric but no action to 
     back them up and change the laws regarding federal judges 
     rulings with no regard to the negative effect financially on 
     the community, nor allowing the majority of the people to 
     have their voice heard and vote on instead of just giving the 
     minority a voice. I thought this country was a democracy in 
     which the majority vote was the law/rule, at least that's 
     what I was taught in history classes in school. Have our 
     governing bodies forgotten that! A federal judge wielding 
     such a ruling not only here but anywhere in the U.S. is 
     wrong!!! We are paying so much in taxes already, not only 
     Real Estate but other areas of our now structured government.
       So I'm asking you Congressman, to continue to take the 
     initiative and act on the behalf of the hard working people 
     who pay all these taxes by doing without and tightening the 
     belt, but the belt is becoming so tight we are all 
     strangling. We want our schools to produce educated people 
     but that's not what our money is being used for. It has not 
     gone to the schools or for our children's education. New 
     schools do not educate; teachers, books, computers, etc. do!! 
     Changes need to be made regarding this matter. Two incomes 
     are already necessary today so we can give our families the 
     necessities of life because the taxation has gotten out of 
     hand, literally, from our hands to government hands. Then we 
     have the additional burden of our school districts court 
     order. People can't keep their homes for their children who 
     would be going to our school, not to mention our elderly 
     homeowners. My husband and I are paying monthly real estate 
     payments almost equal to our mortgage payment, this is really 
     getting scary because we were reassessed on our property 
     again last year and our tax bill will be higher again for 
     1996.
       Please express to your fellow congressmen and congresswomen 
     that it's their responsibility, which was given to them by us 
     the the voter, that they are in the political office they now 
     hold, to work for and with the majority of us not against us. 
     That's how they won their office, by the majority not the 
     minority. I hear to many people say why write to express your 
     dissatisfaction, nothing gets done about, only the minority 
     get catered to and politicians are only self-interested in 
     matter to better themselves and not the general public--PROVE 
     THEM WRONG!!!
           Respectfully,
     Carol A. Angelico.
                                                                    ____

                                                December 26, 1997.
     Representative Donald Manzullo,
     Broadway, Suite 1, Rockford, IL.
       Dear Mr. Manzullo: The enclosed article is from the 
     December 26, 1997 issue of the Rockford Register Star. It 
     reflects a major concern of ours. How does an appointed 
     official of the Judiciary Branch of our Government obtain 
     such power, and what can be done to eliminate the power, and/
     or remove Mahoney from office?
       Mr. Nelson, the writer of the article, claims to be ``a 
     citizen not directly affected by the decision.'' We, on the 
     other hand, are very affected by Mahoney's rulings. We are 
     Senior Citizen property owners in School District 205, living 
     on a fixed income, who are being taxed out of our home!
       To add insult to injury, we did not live in Rockford when 
     the alleged discrimination took place, have never had 
     children in the Illinois school system, but we are judged 
     guilty because our house is in district 205.
       We would like you to tell us how this one man can assume to 
     have all this power, and what action YOU are pursuing in 
     Washington to restrict and/or eliminate such misuse of 
     assumed judicial power!
           Sincerely Yours,
     Earl and Ann Young.
                                                                    ____


                      Time to Clip Judicial Wings

       Magistrate P. Michael Mahoney should be given a Nobel Prize 
     for coming up with a solution to our most vexing problem, how 
     to lower taxes. Since he has established that elected 
     legislative bodies must vote according to the wishes of the 
     judiciary, we can save enormous sums of money by eliminating 
     all such bodies and just let the judiciary run the country. 
     Think of the savings: No senators, no congressmen, no 
     aldermen, no county boards, and most importantly the 
     elimination of the bureaucracies that support these 
     institutions. In fact we can take it one step further and 
     eliminate the executive branch and let judges appoint 
     masters.
       To those of you who support Magistrate Mahoney's decision, 
     would you support him if he ordered the state legislature to 
     raise the state income tax 30 percent to pay for increases in 
     school funding or raises for judges?
       Would you support him if he ordered you to vote for a 
     specific candidate in the next election?
       To our elected representatives: It is up to you to assert 
     your constitutional right to the separation of powers.
       The judiciary has been allowed to slowly undermine the very 
     constitution that they are sworn to protect.
       If this nation is to continue to exist as a democratic 
     republic, it is up to those legislators elected by the people 
     to reassert their constitutional right to vote their 
     conscience.
       I am aware that this is not the first time the judiciary 
     has directed an action by elected officials, but I am not 
     aware of any other time that a member of the judiciary has 
     determined how to fund said action. As a citizen not directly 
     affected by the decision, I besiege our state and federal 
     legislators to clip the wings of the judiciary before they 
     make voters totally irrelevant.
       I realize that this particular case involves a lowly little 
     school board, but remember, this is an elected legislative 
     body being ordered to vote a specific way by a lowly federal 
     magistrate acting on behalf of one semi-retired judge.--Roger 
     T. Nelson, Loves Park
                                                                    ____



                                                 Rockford, IL,

                                                     July 3, 1997.
       Dear Rep Manzullo: Thank you for the support you gave 
     limiting judge's ability to impose taxes. My family is 
     considering moving out of Rockford because we can no longer 
     afford to pay the big property taxes.
           Sincerely,
                                                     Adam Lamarre.

  Mr. CONYERS. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I would ask the gentleman from Illinois (Mr. Manzullo)

[[Page H2260]]

whether he has ever heard of the Supreme Court case, Missouri v. 
Jenkins.
  Mr. MANZULLO. Yes, I quoted from that.
  Mr. CONYERS. Well, did the gentleman not read in there that the 
courts cannot impose taxes?
  Mr. MANZULLO. It is very simple----
  Mr. CONYERS. Mr. Chairman, I just asked the gentleman a question.
  Mr. MANZULLO. If I am given the opportunity to respond----
  Mr. CONYERS. Yes or no?
  Mr. MANZULLO. What is the question again?
  Mr. CONYERS. Forget it.
  Mr. MANZULLO. No, I do not want to forget it. I want to make this 
clear.
  Mr. CONYERS. Well, I want to forget it on my time.
  The CHAIRMAN. The gentleman from Michigan (Mr. Conyers) controls the 
time.
  Mr. CONYERS. Mr. Chairman, before we vote, the Supreme Court said, in 
the case that the gentleman read so clearly, and the question when he 
could not remember what I asked, said that the court cannot impose 
taxes. Repeat. The court cannot impose taxes. They can enforce an order 
for taxes. That is the case.
  So I urge the gentleman to read it again.
  Mr. DELAHUNT. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman from Massachusetts.
  Mr. DELAHUNT. Mr. Chairman, I would just reiterate what the gentleman 
from Michigan (Mr. Conyers) said in terms of the holding in the 
Missouri v. Jenkins case, and the gentleman from Illinois indicated 
that he was quoting from Missouri v. Jenkins. He quoted earlier from 
Thomas Jefferson, or at least he credited Thomas Jefferson the quote 
that taxation without representation is tyranny.
  Mr. Chairman, I would correct the gentleman, because I come from that 
part of the country where the gentleman was born and raised who had 
made that quote. His name is James Otis and he lived on Cape Cod.
  Mr. Chairman, I do not know whether the gentleman misquoted or 
misread the Missouri v. Jenkins decision, but it clearly stated that 
Federal courts could not impose a tax levy on a State or local 
government. In the Federal district court which had earlier issued an 
order that did impose a tax levy in that tax case, it was overturned by 
a unanimous decision of the Supreme Court.
  The Boehlert-Delahunt amendment simply codifies the Missouri case. It 
prohibits a court from directly imposing a tax increase on State and 
local government or any other.
  Mr. CONYERS. Mr. Chairman, reclaiming my time, let us all go to law 
school. All right? The Supreme Court case. Outside the context of a few 
19th century municipal bond cases, the Federal courts have not directly 
imposed a tax except for a single school desegregation case, Missouri 
v. Jenkins. And even this isolated case was overturned by the Supreme 
Court in 1995 when the Justices unanimously rejected the concept of a 
direct Federal court imposition of taxes. Now, is that clear or is it 
not?
  Mr. Chairman, I did not ask the gentleman anything. I just wanted to 
get his attention to read simple English to him of what the Supreme 
Court said.

                              {time}  1215

  The gentleman may get his own time.
  Mr. DELAHUNT. Mr. Chairman, will the gentleman yield?
  Mr. CONYERS. I yield to the gentleman from Massachusetts.
  Mr. DELAHUNT. Mr. Chairman, I think what is most interesting is that 
upon a careful and thorough analysis of the language that presently 
exists in title V, that there has been a conclusion by many legal 
scholars that that language is patently unconstitutional as a result of 
the decision in Missouri v. Jenkins. It is also clear that the 
Department of Justice will recommend a veto of this bill if it should 
pass, if this language is not deleted and the Boehlert-Delahunt 
amendment does not pass.
  Mr. CONYERS. Mr. Chairman, reclaiming my time, I am going to read 
this one more time. I am going to read it slowly.
  The CHAIRMAN. The time of the gentleman from Michigan (Mr. Conyers) 
has expired.
  (By unanimous consent, Mr. Conyers was allowed to proceed for 1 
additional minute.)
  Mr. CONYERS. Mr. Chairman, I am going to read this one more time.
  Outside the context of a few 19th century municipal bond cases, the 
Federal courts have not directly imposed a tax except for a single 
school desegregation case, Missouri v. Jenkins. And even this isolated 
case was overturned by the Supreme Court in 1995, when the Justices 
unanimously rejected the concept of direct Federal court imposition of 
taxes.
  End of sentence.
  Mr. CAMPBELL. Mr. Chairman, I move to strike the requisite number of 
words, and I yield to the gentleman from Illinois (Mr. Manzullo).
  Mr. MANZULLO. Mr. Chairman, the Missouri versus Jenkins case is very 
simple. Five justices against four justices ruled that a court can 
indirectly raise taxes by applying this legal fiction. The difference 
is between the judge saying from the bench, I raise your taxes, and the 
judge saying, I order you to raise your taxes.
  The Delahunt-Boehlert amendment would still allow a judge to say, I 
order you to raise your taxes. In fact, the majority decision was so 
feeble that four justices in the minority said that the majority 
opinion ``is an expansion of power in the Federal judiciary beyond all 
precedent,'' and Delahunt-Boehlert, therefore, if they are saying it 
would codify Missouri versus Jenkins, would therefore be, quote, ``an 
expansion of power in the Federal judiciary beyond all precedent.''
  It is just that simple. A vote on that amendment would gut section 5. 
It would still allow judicial taxation to take place. And for my friend 
from Massachusetts, I would say, if he would make reference to the 
Declaration of Independence, that is where Mr. Jefferson says and 
accuses King George III of taxing the people without representation. I 
like to quote from Jefferson. He is the most credible.
  Mr. CAMPBELL. Reclaiming my time, Mr. Chairman, Missouri versus 
Jenkins, I believe, is correctly described both by my friend from 
Illinois and my friend from Massachusetts. Accordingly, at least as I 
read it, if the Boehlert-Delahunt amendment passes, the bill will have 
no effect beyond Missouri versus Jenkins, and Missouri versus Jenkins 
does say that a court may not directly impose a tax. So both gentlemen 
are right, Mr. Chairman, which is to say that if this amendment passed, 
the purpose of this bill will be defeated.
  I would like that result--if the bill's managers has not agreed to my 
amendment. The problem is, my amendment comes up next, it is not up 
now. So I would like to take a moment and explain what my amendment 
would do because I think it takes the most dangerous part of this bill 
away.
  The most dangerous part of this bill to me is section F of section 5. 
The whole idea of this bill is to make it hard for courts to impose 
taxes; fine. Since Missouri versus Jenkins says a court cannot directly 
impose a tax, this bill says let us also make it hard for courts 
effectively to impose a tax by leaving no other options. Okay, fine, 
let us make it hard.
  But--do not make it impossible. Where the Constitution requires it; 
it should be done. Accordingly, what I would like to do is to go 
through the provisions that are left in the bill, because if my 
amendment is taken, which strikes F, then the remaining restrictions, I 
think, are very reasonable; namely, that a court cannot effectively 
impose a tax unless it is constitutional to do so, it is narrowly 
imposed, it will help as opposed to make worse the problem being 
addressed by the court suit in the first place, there is no adequate 
alternative remedy under the State and local government, and the 
interests of the State are not unconstitutionally usurped. That is the 
exact phrase used.
  Accordingly, if you get rid of F, there is nothing, at least in my 
mind, that is difficult in this proposal (or, surely, that is 
unconstitutional) in this proposal. What was F? ``F'' was that the 
court would have to be assured that the proposed tax would not result 
in a depreciation of property values. That is an impossible standard, 
because any property tax is going to result in a depreciation of 
property values.

[[Page H2261]]

  Suppose, for example, a school desegregation order said a school 
district had to allow in blacks. The school district's revenues come 
from property tax. Say the school district now must allow in 20 to 30 
percent more children; the taxes then have to go up to pay for them. 
There go the property values.
  My good friends on this side of the aisle are willing to drop section 
F, and I only hope that my amendment had come up first. It has not, but 
under the assurance that it will, I would simply wish to point out that 
the unconstitutional aspects of this provision are now gone.
  With that, Mr. Chairman, I yield to the gentleman from Michigan (Mr. 
Conyers).
  Mr. CONYERS. Mr. Chairman, I thank the gentleman from California for 
yielding to me. I hope he teaches a law school course for Members of 
Congress in the evenings with or without credit because I completely 
agree with him.


                         Parliamentary Inquiry

  Mr. CAMPBELL. Mr. Chairman, I have a parliamentary inquiry.
  The CHAIRMAN. The gentleman will state it.
  Mr. CAMPBELL. Is it in order, Mr. Chairman, to ask unanimous consent 
to consider my amendment ahead of this or to consider it at this time? 
Is there a procedural provision allowing that or not?
  The CHAIRMAN. In response to the gentleman's query of the Chair, the 
pending amendment would have to be first withdrawn by unanimous consent 
of the Committee of the Whole.
  Mr. CAMPBELL. Then I cannot proceed as I would have liked to. I thank 
the Chair.
  Mr. GILCHREST. Mr. Chairman, I move to strike the requisite number of 
words.
  I rise to support the Boehlert-Delahunt amendment. I would like to 
say very clearly first that the gentleman from Illinois has a good 
argument in that we are taxed very heavily now, so I want to commend 
him on his effort to streamline the whole complex tax system. It is 
just that I fear that his method, which we agree with basically, would 
go a little bit too far and have consequences that the gentleman from 
Massachusetts does not foresee. This bill and this amendment would not 
give the courts any extra power to raise taxes. It does not change 
anything in my understanding in that area at all.
  The gentleman from Illinois quoted Jefferson. He quoted Madison and 
he quoted Hamilton. Jefferson and Hamilton certainly did not want 
taxation without representation. This amendment does not tax people 
without representation. People continue to have representation. 
Jefferson, Hamilton, Madison would want people to have clean water, and 
they would want the collective community to be responsible for clean 
water.
  Let me give my colleagues an example. In my district, the Chesapeake 
Bay, over the last year or so, we have been having a problem with a 
microorganism called pfiesteria. It is scientific conclusion that 
pfiesteria is stimulated in part by extra nitrogen and phosphorous 
going into the waterways. The courts and the community, the public 
sector can impose fines and cause farmers to have to pay for the 
improvement of their practices to reduce phosphorous and nitrogen 
getting into the water.
  If the gentleman from Illinois does not, if the gentleman from New 
York does not have his amendment passed, the farmer would have to pay 
to clean up his act, but the local sewage treatment plant, which has 
also caused phosphorous and nitrogen into the waterway, which is called 
Pokomoke, would not.
  So the farmer would go to all these expenses and the local sewage 
treatment plant and everybody has a little problem with money, even 
people have problems with whether or not there really is a problem. And 
sometimes there are problems with competency, and the court is there to 
say yes, you also have to clean up your act.
  I will give you an example in Baltimore City. The sewage treatment 
plant right now is under order from the EPA to clean up their act. The 
EPA is going to fine, with the help of the courts, Baltimore not to put 
more nitrogen and phosphorous into the water.
  The local ARCO plant, the local CONOCO plant, they have to clean up. 
They have to pay. The private sector has to pay. The farmer has to pay. 
But unless this amendment passes, the city of Baltimore does not have 
to do anything. They can continue to put the phosphorous and the 
nitrogen in the water that is causing to a great extent this 
microorganism that is decimating the fish population of the Chesapeake 
Bay.
  The Boehlert amendment does not give the court system any iota of 
more power to raise taxes, but unless the Boehlert amendment passes, 
your local farmer is going to be more responsible for cleaning up the 
waterways than the public facilities. I am sure Jefferson and Hamilton 
wanted us to drink clean water, and I think this amendment is perfectly 
balanced.
  Mr. Chairman, I yield to the gentleman from New York (Mr. Boehlert).
  Mr. BOEHLERT. Mr. Chairman, I thank the gentleman from Maryland for 
yielding to me. The examples he cited are perfect and the illustration 
he presented is right on target.
  Courts cannot impose taxes. But courts are charged with the 
responsibility of dealing with the laws we, the House of 
Representatives, and the Senate, and the Congress of the United States, 
pass. And when we are dealing with sensitive issues like clean water, 
which we all depend on, and which the American people want us to 
protect, we have to make certain that the laws we pass are dealt with 
in a responsible manner by the courts.
  The courts are not going to impose a tax, but the courts are going to 
say to a given community, for example, you have to stop polluting. And 
the community is going to decide how it has to stop polluting. I thank 
the gentleman for the example.
  The gutting would occur, the gutting would occur, I would suggest, if 
we failed to amend section 5.
  Mr. YOUNG of Alaska. Mr. Chairman, I move to strike the requisite 
number of words, and I yield to the gentleman from Illinois (Mr. 
Manzullo).
  Mr. MANZULLO. Mr. Chairman, the proponents of the Delahunt-Boehlert 
amendment are trying to draw a fine line between a direct tax and an 
indirect tax. The effect is the same. The elected representatives still 
have to raise taxes and is it not interesting, they say, well, this 
will protect, this will stop courts from raising taxes. In Rockford, 
Illinois, the judge, the unelected magistrate has ordered the school 
board to either raise taxes or go to jail.

                              {time}  1230

  There is no difference between that and the judge saying, ``I am 
going to order raising of taxes on my own.'' The original language of 
section 5 allows both scenarios.
  However, the Delahunt-Boehlert amendment removes the second scenario 
and not only says that the judge cannot directly raise taxes but it 
still allows the judge to indirectly raise taxes. And as to all the 
environmental issues and everything else, what our bill says simply is 
this, to live within our means, to allow remedial plans to come about.
  Maryland already has a State law with regard to cleaning up the 
environment, to cleaning up the waters. All these scare tactics that 
this will gut environmental laws, this will gut ADA laws, that is not 
the case. We are simply saying that local communities and elected 
representatives should not be ordered to go to jail unless they raise 
taxes. Because the only constitutional function for the Federal raising 
of tax is the United States Congress and not the Federal judiciary. And 
that is why it is absolutely important, it is compelling that to make 
this law have any teeth, we must defeat Delahunt-Boehlert.
  Mr. YOUNG of Alaska. Mr. Chairman, I would say just one thing. I was 
not going to get involved in this argument. But the concept that a 
judge can raise taxes on the public without due representation is 
inappropriate.
  Secondly, when we hear these scare tactics about clean water and 
clean air and all these good things in this bill, that is pure 
nonsense. States have the authority to do this to begin with. The 
States have the right to do it, and they should do it.
  I am going to suggest, I have seen small communities that EPA and 
other agencies have required to do certain

[[Page H2262]]

things and they have gone broke. They have lost their schools, they 
lost other facilities in the infrastructure because of the agency 
saying they had to raise certain amounts of money to put in certain 
standards in that area.
  I am suggesting, respectfully, that this amendment is a mischievous 
amendment that will give back the authority for judges. And I do not 
particularly like judges to begin with. I want to tell my colleagues 
right now, especially those that are appointed and have a life 
expectancy. I think it is also time to let them recognize that the 
people should be represented in this Congress.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Massachusetts (Mr. Delahunt).
  The question was taken; and the Chairman announced that the ayes 
appeared to have it.


                             Recorded Vote

  Mr. COBLE. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 230, 
noes 181, not voting 21, as follows:

                             [Roll No. 103]

                               AYES--230

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baesler
     Baldacci
     Barcia
     Barrett (WI)
     Bass
     Bentsen
     Berman
     Berry
     Bilbray
     Bishop
     Blagojevich
     Blumenauer
     Boehlert
     Bonior
     Borski
     Boswell
     Boucher
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Burr
     Camp
     Capps
     Cardin
     Carson
     Castle
     Clayton
     Clement
     Clyburn
     Conyers
     Costello
     Coyne
     Cummings
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley
     Doyle
     Edwards
     Ehlers
     Engel
     Eshoo
     Etheridge
     Evans
     Ewing
     Farr
     Fattah
     Fawell
     Fazio
     Filner
     Forbes
     Ford
     Fox
     Frank (MA)
     Franks (NJ)
     Frost
     Furse
     Ganske
     Gejdenson
     Gephardt
     Gilchrest
     Gilman
     Gordon
     Green
     Greenwood
     Gutierrez
     Gutknecht
     Hall (OH)
     Hamilton
     Harman
     Hefner
     Hinchey
     Hinojosa
     Hobson
     Holden
     Hooley
     Horn
     Houghton
     Hoyer
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, E. B.
     Kanjorski
     Kaptur
     Kelly
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Klink
     Klug
     Kucinich
     LaFalce
     LaHood
     Lampson
     Lantos
     LaTourette
     Lazio
     Leach
     Lee
     Levin
     Lewis (GA)
     Lipinski
     LoBiondo
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Manton
     Markey
     Martinez
     Mascara
     McCarthy (MO)
     McCarthy (NY)
     McDade
     McDermott
     McGovern
     McHale
     McIntyre
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Millender-McDonald
     Minge
     Mink
     Moakley
     Mollohan
     Moran (VA)
     Morella
     Murtha
     Nadler
     Neal
     Ney
     Oberstar
     Obey
     Ortiz
     Owens
     Pallone
     Pappas
     Pascrell
     Pastor
     Payne
     Pelosi
     Pomeroy
     Porter
     Poshard
     Price (NC)
     Pryce (OH)
     Quinn
     Rahall
     Ramstad
     Rangel
     Regula
     Reyes
     Rivers
     Rodriguez
     Roemer
     Rothman
     Roukema
     Roybal-Allard
     Rush
     Sabo
     Sanchez
     Sanders
     Sandlin
     Sawyer
     Saxton
     Schumer
     Scott
     Serrano
     Shays
     Sherman
     Skaggs
     Skelton
     Slaughter
     Smith (NJ)
     Smith, Adam
     Snyder
     Spratt
     Stabenow
     Stark
     Stokes
     Strickland
     Stupak
     Sununu
     Tauscher
     Thompson
     Thurman
     Tierney
     Torres
     Towns
     Upton
     Velazquez
     Vento
     Visclosky
     Walsh
     Waters
     Watt (NC)
     Waxman
     Weller
     Wexler
     Weygand
     White
     Whitfield
     Wise
     Woolsey
     Wynn
     Yates

                               NOES--181

     Aderholt
     Archer
     Armey
     Bachus
     Baker
     Ballenger
     Barrett (NE)
     Bartlett
     Barton
     Bereuter
     Bilirakis
     Bliley
     Blunt
     Boehner
     Bonilla
     Bono
     Brady
     Bryant
     Burton
     Buyer
     Callahan
     Calvert
     Campbell
     Canady
     Cannon
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Coble
     Coburn
     Collins
     Combest
     Condit
     Cox
     Cramer
     Crane
     Crapo
     Cubin
     Cunningham
     Danner
     Davis (VA)
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Doolittle
     Dreier
     Duncan
     Dunn
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Foley
     Fossella
     Fowler
     Frelinghuysen
     Gallegly
     Gekas
     Gibbons
     Gillmor
     Goode
     Goodlatte
     Goodling
     Goss
     Graham
     Granger
     Hall (TX)
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill
     Hilleary
     Hilliard
     Hoekstra
     Hostettler
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Inglis
     Jenkins
     Johnson, Sam
     Jones
     Kasich
     Kim
     King (NY)
     Kingston
     Knollenberg
     Kolbe
     Largent
     Latham
     Lewis (CA)
     Lewis (KY)
     Linder
     Livingston
     Lucas
     Manzullo
     McCollum
     McCrery
     McHugh
     McInnis
     McIntosh
     McKeon
     Metcalf
     Mica
     Miller (FL)
     Moran (KS)
     Myrick
     Nethercutt
     Neumann
     Northup
     Norwood
     Nussle
     Oxley
     Packard
     Parker
     Paul
     Pease
     Peterson (MN)
     Peterson (PA)
     Pickering
     Pickett
     Pitts
     Pombo
     Portman
     Redmond
     Riggs
     Riley
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Royce
     Ryun
     Salmon
     Sanford
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shimkus
     Shuster
     Sisisky
     Skeen
     Smith (MI)
     Smith (OR)
     Smith (TX)
     Smith, Linda
     Snowbarger
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stump
     Talent
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Thune
     Tiahrt
     Traficant
     Turner
     Wamp
     Watts (OK)
     Weldon (FL)
     Wicker
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--21

     Barr
     Bateman
     Becerra
     Boyd
     Bunning
     Clay
     Cook
     Cooksey
     Dixon
     Gonzalez
     Hastings (FL)
     Istook
     Matsui
     Miller (CA)
     Olver
     Paxon
     Petri
     Radanovich
     Tanner
     Watkins
     Weldon (PA)

                              {time}  1255

  Messrs. CONDIT, DICKEY, KIM, SAM JOHNSON of Texas, and McKEON changed 
their vote from ``aye'' to ``no.''
  Messrs. COYNE, GUTKNECHT, and EWING changed their vote from ``no'' to 
``aye.''
  So the amendment was agreed to.
  The result of the vote was announced as above recorded.
  Mr. MANZULLO. Mr. Chairman, I ask unanimous consent to strike section 
5 of the pending bill.
  The CHAIRMAN. Is there objection to the request of the gentleman from 
Illinois?
  Mr. FRANK of Massachusetts. Mr. Chairman, reserving the right to 
object, not having been consulted on something of this importance, we 
are constrained to object, and so I do now object.
  The CHAIRMAN. Objection is heard.


                   Amendment Offered By Mr. Campbell

  Mr. CAMPBELL. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Campbell:
       Page 9, line 5, and ``and'' after the semicolon.
       Page 9, line 9, strike ``; and'' and insert a period.
       Page 9, strike lines 10 through 12.
       Page 9, line 2, insert after ``remedied'' the following: 
     ``, including through its effect on property values or 
     otherwise''.

  Mr. CAMPBELL. Mr. Chairman, the passage of the Boehlert-Delahunt 
amendment makes this amendment less important. But I believe it is 
still an improvement in the bill.
  I am authorized to say that this amendment is agreeable to the 
majority, agreeable to the chairman of the committee, and agreeable to 
the author of this provision of the bill.
  So in the interest of time, I would be prepared to yield back, unless 
this is controversial, in which case I will take additional time to 
explain it. But I have already tried my best to explain it to both 
sides, and I believe it is not controversial. So in the interest of 
time, I would yield back.
  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last 
word.
  Mr. Chairman, I think it is a very good idea. I have nothing 
absolutely to add to this debate.
  The CHAIRMAN. Are there any other Members seeking recognition on the 
amendment by the gentleman from California (Mr. Campbell)?
  If not, the question is on the amendment offered by the gentleman 
from California (Mr. Campbell).
  The amendment was agreed to.


                  Amendment No. 5 Offered By Mr. Rogan

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

       Amendment No. 5 offered by Mr. Rogan:
       Strike section 6 and redesignate succeeding sections, and 
     references thereto, accordingly.


[[Page H2263]]


  Mr. ROGAN. Mr. Chairman, this amendment would involve deleting 
section 6 from the bill that is before us. Section 6 as proposed would 
allow parties as a matter of right in a civil case to peremptorily 
challenge a judge, without any showing of cause, for bias or prejudice. 
Under current law, a judge may be challenged for cause or for bias, but 
there must be an actual showing.

                              {time}  1300

  My concern, Mr. Chairman, with respect to the proposal that is set 
forth, is that it would do a couple of things. First, it would increase 
the likelihood that attorneys will use the new procedure for ``forum 
shopping''; secondly, it would allow lawyers to put judges in the 
position where retail justice is being served.
  Mr. Chairman, in California, my home State, we have a similar 
provision already on the books that is being proposed by this current 
legislation under section 6. Unfortunately it is often used for all the 
wrong reasons. We have a number of examples in California where judges 
have been challenged not because of their ability to be fair or to hear 
a case; they are challenged because of their race, sex, age, political 
affiliation, or some other factor unrelated to their ability to sit in 
judgment.
  Mr. Chairman, in California when I was a judge, I was present at 
judicial conferences where judges sat around and polled each other as 
to what the ``going rate'' was for sentencing in a particular case. 
Judges knew that if they deviated from the going rate, then attorneys 
who had the ability to come into court and file a blanket affidavit of 
prejudice against them would do so, thereby precluding them from 
hearing either a case, or a class of cases.
  I think that we ought to retain the current system where judges may 
be challenged in cases of actual bias or prejudice. Although I respect 
the fact that my dear friend, our former colleague from California, Dan 
Lungren, is in support of the bill in an unamended fashion, I rise 
because I oppose this one particular provision.
  Mr. CANADY of Florida. Madam Chairman, I move to strike the last 
word.
  Madam Chairman, I am not going to oppose the gentleman's amendment 
although I believe that there is a problem with the current system that 
needs to be rectified. Under the current system in many cases I believe 
that litigants who have a reasonable basis for believing that they are 
not going to be treated fairly by a particular judge do not really have 
any realistic recourse to have the case moved to be considered by 
another judge. I do not think the current system is working.
  I am not going to oppose this amendment at this time because the 
version of preemptory challenge to judges that is contained in the bill 
is a much truncated version of my original bill which I introduced, 
which followed in a tradition that was started by Representative Drinan 
many Congresses ago when he introduced a bill to allow for preemptory 
challenges of judges in criminal cases.
  It is my belief that we should have a provision that covers criminal 
cases, civil cases in districts throughout the country. What is in the 
bill now, as a result of the work of the Committee on the Judiciary 
which I respect, is a version that only covers civil cases, it covers 
certain districts in the country, and I am not very enthusiastic about 
this version of the bill.
  What I would ask the gentleman from California to do is to consider 
the problems with the current system and to work with those of us on 
the Committee on the Judiciary who are concerned about those problems 
for a realistic way of helping ensure that litigants can have 
confidence that they are going to be treated fairly and not be trapped 
in the courtroom of a judge who has a bias or who otherwise is not 
going to treat the particular litigant fairly. I think that is 
important to everyone.
  In the past the American Bar Association has supported efforts along 
these lines of preemptory challenge. Preemptory challenge may not be 
the right way to do it, but I am convinced that the current system is 
fundamentally flawed. At least the way it operates is flawed in many 
cases, and we need to do something to address that.
  Having explained that background, I will not oppose the gentleman's 
amendment, but I will hope that the gentleman, the gentleman from 
California (Mr. Rogan), will be willing to work with us in coming up 
with ways of addressing the real problems that do exist because what we 
are looking for is a system that will protect all litigants, a system 
that will allow everyone going into court to believe that they are 
going to get a fair shake, not that they are going to get any advantage 
but that they will not be treated unfairly.
  And that is my objection, and I believe that that is the objective of 
the gentleman from California and all the others who have been engaged 
on this issue.
  Mr. ROGAN. Madam Chairman, will the gentleman yield?
  Mr. CANADY of Florida. I yield to the gentleman from California.
  Mr. ROGAN. Madam Chairman, first I want to thank my distinguished 
colleague, the subcommittee chairman, for his comments. And I think 
that the chairman has hit the nail on the head: there are some 
procedural defects in what is currently on the books.
  I agree that the procedure that was being proposed, a blanket 
preemptory challenge, is not the best way to deal with this. I would be 
the first to concede that there are problems with the current system. 
These problems are as diverse as the personalities of those judges who 
might be inclined to hear a case. I would be honored to work with my 
colleague in this particular area to fashion a more appropriate remedy.
  So I want to thank the gentleman for his comments and for all the 
work he has done on this bill.
  Mr. CANADY of Florida. Madam Chairman, I thank the gentleman for his 
comments, and I would extend the same offer to work together to the 
Democratic members of the Committee on the Judiciary who have opposed 
the provisions of the bill but who I also believe are concerned about 
helping ensure that all litigants are treated fairly in cases that are 
brought in the Federal courts.
  Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the 
requisite number of words.
  Madam Chairman, I want to, as did the gentleman from California, 
express my appreciation for the spirit of cooperation that the 
gentleman from Florida, to say yes. I think this is something we could 
work on in a cooperative way. I would just like to express my 
appreciation to the gentleman from California, the gentleman from South 
Carolina, who joined in this bipartisan effort, and I think it is very 
likely in the spirit that is developing here we will be able to address 
these issues. So I welcome this support, I thank my colleagues for the 
cooperation, and I shut up.
  The CHAIRMAN pro tempore (Mrs. Emerson). The question is on the 
amendment offered by the gentleman from California (Mr. Rogan).
  The amendment was agreed to.


             Amendment Offered by Ms. Jackson-Lee of Texas

  Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Ms. Jackson-Lee of Texas:
       Add the following at the end of the bill:

     SEC. 12. PROTECTIVE ORDERS AND SEALING OF CASES AND 
                   SETTLEMENTS RELATING TO PUBLIC HEALTH OR 
                   SAFETY.

       (a) In General.--Chapter 111 of title 28, United States 
     Code, is amended by adding at the end thereof the following 
     new section:

     ``Sec. 1660. Protective orders and sealing of cases and 
       settlements relating to public health or safety

       ``(a) Findings of Fact Regarding Public Health and 
     Safety.--No order entered in accordance with the provisions 
     of rule 26(c) of the Federal Rules of Civil Procedure shall 
     continue in effect after the entry of final judgment in that 
     case, unless at or after such entry the court makes a 
     separate finding of fact that such order would not prevent 
     the disclosure of information which would adversely affect 
     public health or safety.
       ``(b) Restriction on Agreements Among Parties.--(1) No 
     agreement between or among parties in a civil action filed in 
     a court of the United States may prohibit or otherwise 
     restrict a party from disclosing any information relevant to 
     such civil action to any Federal or State agency with 
     authority to enforce laws regulating an activity relating to 
     such information, unless the court makes a separate finding 
     of fact that such agreement would not adversely affect public 
     health or safety.
       ``(2) Any disclosure of information described in paragraph 
     (1) to a Federal or State

[[Page H2264]]

     agency shall be confidential to the extent provided by 
     law.''.
       (b) Technical and Conforming Amendments.--The table of 
     sections for chapter 111 of title 28, United States Code, is 
     amended by adding at the end the following:

``1660. Protective orders and sealing of cases and settlements relating 
              to public health or safety.''.

       (c) Effective Date.--The amendments made by this section 
     shall take effect 30 days after the date of the enactment of 
     this Act and shall apply only to orders entered in civil 
     actions or agreements entered into on or after such date.

  Ms. JACKSON-LEE of Texas. Madam Chairman, I appreciate very much the 
detailing of my amendment because I think if we listen acutely and 
carefully, we will find that my amendment does represent judicial 
reform, and the reason is that I am not seeking to take away the 
discretion of the judiciary or the judge. I am simply saying that I 
think in support of the right to know of the American people, even if 
one would argue that we have not determined that secrecy prevails and 
that judges may assess in their own determination at some time and can 
be cited sometime that they had determined that in a settlement they 
would, in fact, allow the facts to be detailed.
  We have found that most often secrecy, once it is requested, remains. 
That creates a dangerous and hazardous set of circumstances for 
American consumers, American business persons, and generally it 
interferes with the fairness of having knowledge about anything that 
can impact negatively on the community.
  I want to focus in particular on the language of this amendment. It 
indicates that a judge is required to make an assessment of whether or 
not secrecy must be maintained. That means that it allows the judge to 
go in specifically and assess the facts and decidedly make a 
determination: Yes, this must remain secret; no, it must not. In that 
ruling we would hope that the judge would take into consideration the 
terrible devastation or the blight that would come about by way of not 
allowing this information to come out.
  Let me share with my colleagues an example that bears on health and 
safety. A case in the United States Court of Appeals for the Fifth 
Circuit involved litigation of a manufacturer of an artificial heart 
valve. This manufacturer of heart valves was allowed to keep secret 
through a court order life threatening defects, even as more of these 
valves were implanted in patients. None of us want to tolerate that 
sense of a lack of responsibility. We realize there was a settlement, 
but in this instance if we take the scales of justice, the weight of 
the public right to know is a more important right and responsibility 
than the secrecy of litigation.
  I would argue I do think that if we weigh the scales of justice we 
will find that the higher right and the higher moral ground, along with 
the balance of the scales of justice, requires that we have a situation 
where we have an oversight over the overall point of perspective of 
settlement secrecy.
  Let me add one other case. There was a case in the Third Circuit 
where the manufacturer of a drug that caused internal bleeding, they 
secured a secrecy order barring the injured consumer's attorney from 
disclosing this information to a government agency.
  I am saying to all of my colleagues, this impacts our quality of 
life. In 1984 studies indicating the hazards of silicon breast implants 
were being uncovered. However, because of a protective order, this 
critical information was hidden from public view and from the FDA until 
1992, more than 7 years and literally tens of thousands of victims 
later. Secrecy in our State and Federal courts undermines the right to 
know of every American citizen.
  Let me now intervene and say it is not open season on secrecy. This 
particular amendment, if we are truly concerned about judicial reform, 
simply requires the judge to make a ruling that, yes, this does not 
impact the public health and safety.
  Madam Chairman, I cannot imagine that Americans would not be so 
concerned as to not ensure that we have the open access to information 
that would impact their life and safety.

                              {time}  1315

  Secrecy keeps vital health and safety information from consumers. 
They have a right to know. The confidential settlements of early 
litigation involving the artificial valves kept life-threatening 
defects secret, even as more valves were being implanted. Hundreds of 
patients have died as a result of our failure.
  In other cases, doctors have avoided disciplinary charges because 
court files, which would document negligent care, have been sealed. 
Secrecy creates more litigation. If you do not have the right to have 
this information acknowledged, then others are injured.
  What does that generate? More litigation. If we are talking about 
bringing down the cost of what we perceive to be a litigious society, I 
happen to think everyone has a right to access the court of justice. 
But if for matter of argument we talk about increased litigation, 
secrecy helps to increase litigation, no matter what the cause. 
Business, personal injury, whatever we speak of, if we do not have 
knowledge and information, we increase litigation.
  I would simply say as the American courts operate under the 
presumption of openness, my amendment enhances that openness. It allows 
those who feel that there is an element of secrecy that devastates the 
public safety the opportunity for the judge to rule that, in fact, this 
information must be presented to the American public and protect the 
safety and health of Americans.
  Mr. COBLE. Madam Chairman, I rise in opposition to the amendment.
  Madam Chairman, the tenor here on the floor has gone from discord to 
harmony. I am not going to bring it back to discord, but I want to at 
least go on record as resisting the amendment of the gentlewoman from 
Texas.
  The amendment was defeated during the committee markup of the bill. 
It is opposed by persons interested in privacy issues; as well as the 
business community, including the National Association of 
Manufacturers, NFIB; the Chamber of Commerce, and others.
  The amendment, it seems to me, would limit the ability of parties to 
negotiate private settlements and the authorities of a court to seal 
sensitive information after a final judgment has been reached unless a 
court makes a separate finding of fact that not revealing the 
information would not adversely affect public health or safety.
  Recent studies, the Harvard Federal Judicial Center, the Judicial 
Conference, they strongly suggest that protective orders issued under 
rule 26(c) are not causing health or safety problems. In fact, the 
Civil Rules Advisory Committee of the Judicial Conference met in March, 
last month, and determined that no changes to rule 26(c) were needed.
  Since many protective orders, and maybe most, are issued in 
employment discrimination and civil rights cases, the amendment would 
compromise the privacy rights of individuals, it seems to me. For 
example, a sealed order regarding medical records of an AIDS patient, 
for example. The amendment would also jeopardize the proprietary rights 
of businesses, trade secrets, and other confidential information, which 
a competitor might want to gain access to such information.
  The courts already have rather wide discretion not to issue 
protective orders or to modify or rescind them. Discovery and the 
discovery process are designed to encourage parties to share 
information with each other and to settle, if possible. The amendment, 
it seems to me, interferes with this process and may well impose a 
greater strain on limited judicial resources.
  Madam Chairman, I urge my colleagues to vote against the amendment.
  Mr. CONYERS. Madam Chairman, I move to strike the last word.
  Madam Chairman, my dear friend, the gentleman from North Carolina, 
Mr. Coble, pointed out this amendment was defeated in subcommittee. 
Well, that is probably an indication it is a pretty good amendment. But 
it is important that we know that.
  The next thing I should point out to everybody is that this amendment 
does not apply to civil rights cases. This amendment prohibits orders 
preserving the secrecy of documents that would adversely affect public 
health or safety. So, we are all in agreement so far.
  So this is an amendment you might want to consider favorably, because 
when you do not disclose vital health and safety information and keep 
it out

[[Page H2265]]

of the public's reach, we have people that pay dearly; loss of life, as 
has been referenced by the gentlewoman from Texas.
  So these protective orders are dangerous. The artificial heart valves 
problem with their defects were kept hidden. Hundreds of people died 
unnecessarily, because the court allowed these records to be sealed.
  Then before I yield to the gentlewoman from Texas, I want to raise 
the problem that might become involved with the tobacco settlement. 
Look, the court records have hidden thousands of critical documents 
concerning the strategies used around teenage smoking, minority 
targeting, nicotine manipulation. You do not want to keep that 
information secret, do you?
  The tobacco industry, bless their hearts, have gone to incredible 
lengths to keep these documents under wraps. Let us make sure that with 
this amendment, they will not be able to do that, because the courts 
are public institutions, and the records and what goes on in the courts 
should be within the province of the people.
  Ms. JACKSON-LEE of Texas. Madam Chairman, will the gentleman yield?
  Mr. CONYERS. I yield to the gentlewoman from Texas.
  Ms. JACKSON-LEE of Texas. Madam Chairman, I thank the ranking member 
for yielding. I am glad the gentleman has emphasized this is not and 
does not have an impact on civil rights cases. Clearly, it points to 
the question of public health and safety.
  Interestingly enough, if we want to clarify the procedural tracking 
of this amendment in committee, we had unanimous consent on this 
amendment for a period of time. I do note, and I, too, want to add to 
the collegiality of the floor debate and say to the gentleman from 
North Carolina (Chairman Coble) that I recognize that there are 
supporters of this bill that are not supporting this particular 
amendment. Many of them are from the manufacturing and business 
community.
  I would argue that that does not justify opposing this particular 
amendment, because, in fact, I think it is more important to not get 
into a discussion between defense attorneys and trial lawyers or 
plaintiff's lawyers. This has to be a question of the public health and 
safety and the balance between the scales of justice.
  Do you want knowledge about car seats that impact babies to be kept 
secret, so that those who would have to utilize these seats will not 
have the opportunity to know the information to prevent future 
litigation? What about Xomax, the artificial pain reliever that was 
manufactured in the early 1980s and was found to be dangerous? What 
about waterslides, where a gentleman fell and slid and broke his neck? 
Why would we not want the information to be able to provide the 
consumers with the basis of not having that happen again?
  So I really think that we do better to err on the side of allowing 
the judge, and, again, this is not open season on violating 
settlements; it is allowing the judge to make an independent assessment 
that, in fact, you would do damage to public health and safety if you 
did not open these records.
  Mr. CONYERS. Madam Chairman, reclaiming my time, it is an easy 
``aye'' vote, and I urge support of the amendment.
  Mr. NADLER. Madam Chairman, I move to strike the requisite number of 
words.
  Madam Chairman, I rise in support of this amendment. I think it is an 
excellent amendment.
  We have all read in the newspapers of settlements of major lawsuits 
in which many of the documents in court, the terms of the settlement, 
are secret. The fact is one of the purposes of our system of justice is 
to vindicate the public interest and the public safety. The suit in 
which someone sues a major company because the product they are 
producing is unsafe, that it is going to cause deaths, and the company 
settles the suit, and one of the terms of the settlement is that the 
evidence and the admission, perhaps, that this product is unsafe, or 
will cause death unless modified; you keep that secret so people do not 
know it, that does not serve the public interest.
  Companies should not be permitted to buy off for cash these kind of 
safety concerns so that other members of the public will die or be 
injured. This needs to be in the public domain.
  So I commend the gentlewoman from Texas (Ms. Jackson-Lee) for having 
the originality and initiative to offer this amendment. I ask my 
colleagues to vote for it.
  Ms. JACKSON-LEE of Texas. Madam Chairman, will the gentleman yield?
  Mr. NADLER. I yield to the gentlewoman from Texas.
  Ms. JACKSON-LEE of Texas. Madam Chairman, I thank the gentleman for 
his leadership on many of these issues.
  I would like to go back, Madam Chairman, to something that remains 
sort of controversial even today, but knowing the many breast implant 
survivors that I have had the opportunity to interact with from a 
perspective of not trying to do anything more than to bring to the 
American public that their illnesses, that the impact of the silicone 
breast implants are not a dream; they are not unreal, they are actually 
real.
  So we are not talking about now the litigation and debate or 
nonlitigation. What we want to debate is whether or not if we had had 
this particular provision we would have been able to avoid the 
tragedies of what we are seeing today with so many victims of silicone 
breast implants.
  For example, in 1984, as I said earlier, and I want to repeat this, 
studies indicated the hazards of silicone breast implants were being 
uncovered. Because of a protective order, this critical information was 
hidden from the public view and from the FDA until 1992, more than 7 
years, and literally tens of thousands of victims later.
  I would imagine if the business community actually sat down, 
scratched their head, and took out their pen, it would have been better 
for this information to be known in 1984 to avoid the thousands upon 
thousands and millions of women who have been devastated by the 
silicone breast implant. Knowledge would have avoided the tragedies of 
1998.
  I also say that with respect to fuel tanks, with respect, as I said, 
to the heart valves, with respect to a certain lighter that was 
utilized, as well as certain xerox, asbestos, the Corvair story which 
we know so full well, these are stories that the American consumers 
would have far better appreciated or benefitted, if a judge had simply 
assessed beyond the need of secrecy and the individuals inside that 
courthouse, to say you have a settlement. But with respect to the 
violation of the consumer product or the product itself, I believe in 
making an assessment.
  That information should either go to the public or a governmental 
agency. That is what we are losing if we do not vote for this 
amendment. I cannot imagine if we are talking about judicial reform 
that we would not allow a court to make that assessment.
  For the response that the rule works all right, what was really said 
was we have seen no problems. We know a judge will do it if they need 
do it. Again, I am not doubting the integrity of the judiciary, but 
this is too high a stake for us to leave it randomly to the arguments 
of lawyers who would plead to that judge, ``don't you dare,'' and, 
rightly so, the judge leaves it secret, rather than making an 
independent assessment that would cause a review of that material to 
allow just that information, public safety and health, to be allowed to 
be part of the public right-to-know.
  Madam Chairman, with that, I would ask with all due seriousness and 
call for judicial reform; that this is an amendment that speaks to 
reform beyond all. I would certainly ask that my colleagues join in 
voting for this amendment on behalf of the American people's right to 
know.
  Mr. NADLER. Madam Chairman, reclaiming my time, I would add that I 
hope everyone votes for this amendment. It seems to me this is one of 
the very few amendments for which the arguments are all on one side. I 
urge all Members to vote for it.
  The CHAIRMAN pro tempore (Mrs. Emerson). The question is on the 
amendment offered by the gentlewoman from Texas (Ms. Jackson-Lee).
  The question was taken; and the Chairman pro tempore announced that 
the noes appeared to have it.


                             recorded vote

  Ms. JACKSON-LEE of Texas. Madam Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 177, 
noes 242, not voting 13, as follows:

[[Page H2266]]

                             [Roll No. 104]

                               AYES--177

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baesler
     Baldacci
     Barcia
     Barrett (WI)
     Becerra
     Bentsen
     Bereuter
     Berman
     Berry
     Bishop
     Blagojevich
     Blumenauer
     Bonior
     Borski
     Boswell
     Boucher
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Campbell
     Capps
     Cardin
     Carson
     Clayton
     Clement
     Clyburn
     Conyers
     Costello
     Coyne
     Cummings
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dingell
     Doggett
     Edwards
     Emerson
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fattah
     Fazio
     Filner
     Ford
     Fox
     Frank (MA)
     Frost
     Furse
     Gejdenson
     Gephardt
     Green
     Hall (OH)
     Harman
     Hefner
     Hilliard
     Hinchey
     Hinojosa
     Holden
     Hooley
     Horn
     Hoyer
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (WI)
     Johnson, E. B.
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Klink
     Kucinich
     LaFalce
     Lampson
     Lantos
     Leach
     Lee
     Levin
     Lewis (GA)
     Lipinski
     Lowey
     Luther
     Maloney (CT)
     Manton
     Markey
     Martinez
     Mascara
     McCarthy (MO)
     McCarthy (NY)
     McDermott
     McGovern
     McHale
     McIntyre
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Millender-McDonald
     Miller (CA)
     Minge
     Mink
     Moakley
     Mollohan
     Moran (VA)
     Morella
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Poshard
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rivers
     Rodriguez
     Rohrabacher
     Roybal-Allard
     Rush
     Sabo
     Sanchez
     Sanders
     Sawyer
     Schumer
     Scott
     Serrano
     Shays
     Sherman
     Slaughter
     Smith, Adam
     Spratt
     Stabenow
     Stark
     Stokes
     Strickland
     Stupak
     Tauscher
     Thompson
     Thurman
     Tierney
     Torres
     Towns
     Velazquez
     Vento
     Visclosky
     Waters
     Waxman
     Wexler
     Weygand
     Wise
     Woolsey
     Wynn
     Yates

                               NOES--242

     Aderholt
     Archer
     Armey
     Bachus
     Baker
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bilbray
     Bilirakis
     Bliley
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boyd
     Brady
     Bryant
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Cannon
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Coble
     Coburn
     Collins
     Combest
     Condit
     Cooksey
     Cox
     Cramer
     Crane
     Crapo
     Cubin
     Cunningham
     Danner
     Davis (VA)
     Deal
     DeLay
     Diaz-Balart
     Dickey
     Dicks
     Dooley
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Ehlers
     Ehrlich
     English
     Ensign
     Everett
     Ewing
     Fawell
     Foley
     Forbes
     Fossella
     Fowler
     Franks (NJ)
     Frelinghuysen
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goode
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Granger
     Greenwood
     Gutknecht
     Hamilton
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill
     Hilleary
     Hobson
     Hoekstra
     Hostettler
     Houghton
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Inglis
     Jenkins
     John
     Johnson (CT)
     Johnson, Sam
     Jones
     Kanjorski
     Kasich
     Kelly
     Kim
     King (NY)
     Kingston
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Lazio
     Lewis (CA)
     Lewis (KY)
     Linder
     Livingston
     LoBiondo
     Lofgren
     Lucas
     Maloney (NY)
     Manzullo
     Matsui
     McCollum
     McDade
     McHugh
     McInnis
     McIntosh
     McKeon
     Metcalf
     Mica
     Moran (KS)
     Murtha
     Myrick
     Nethercutt
     Neumann
     Ney
     Northup
     Norwood
     Nussle
     Oxley
     Packard
     Pappas
     Parker
     Paul
     Pease
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pickett
     Pitts
     Pombo
     Pomeroy
     Porter
     Portman
     Pryce (OH)
     Quinn
     Radanovich
     Ramstad
     Redmond
     Regula
     Riggs
     Riley
     Roemer
     Rogan
     Rogers
     Ros-Lehtinen
     Rothman
     Roukema
     Royce
     Ryun
     Salmon
     Sandlin
     Sanford
     Saxton
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shimkus
     Shuster
     Sisisky
     Skaggs
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (OR)
     Smith (TX)
     Smith, Linda
     Snowbarger
     Snyder
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stump
     Sununu
     Talent
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Thune
     Tiahrt
     Traficant
     Turner
     Upton
     Walsh
     Wamp
     Watkins
     Watt (NC)
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     White
     Whitfield
     Wicker
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--13

     Bateman
     Clay
     Cook
     Dixon
     Gonzalez
     Gutierrez
     Hall (TX)
     Hastings (FL)
     Istook
     McCrery
     Miller (FL)
     Paxon
     Tanner

                              {time}  1351

  Ms. McCARTHY of Missouri, Mrs. THURMAN and Mr. BOSWELL changed their 
vote from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.
  (By unanimous consent, Mr. Weldon of Pennsylvania was allowed to 
speak out of order.)


 Announcement of Fire Emergency in the Longworth House Office Building

  Mr. WELDON of Pennsylvania. Madam Chairman, I move to strike the last 
word.
  Madam Chairman, we just experienced what could have been a very 
tragic incident in one of our House office buildings, and that was a 
fire which started in the basement of the new elevator shaft that is 
being constructed, that poured smoke throughout that seven-story 
complex and required that building to be evacuated for a significant 
period of time.
  Eleven years ago I came on this floor and offered a privileged 
resolution of the House regarding the health and safety of the Members, 
because we had a similar fire in then Speaker Jim Wright's office which 
burned out of control, and to which I had to respond that the buildings 
that we work in are absolute fire traps because there were no detection 
devices, no alarm systems, no sprinklers, there was no preplanning, no 
exit drills. There were no efforts in place to guarantee the safety of 
both the Members and our constituents.
  Today I can rise and report exactly the opposite. In fact the 
response was quick, it was efficient. The Sergeant at Arms, the Capitol 
Hill Police, and those brave officers who by the way had to go to the 
hospital because of smoke inhalation and whose names I will enter into 
the Record today, all performed above and beyond the call of duty.
  I might add, however, that Members who were on the seventh floor of 
Longworth did acknowledge that immediately the alarm system did not go 
off, and that is the reason why we must continue to press for adequate 
preplanning and the need for us to understand the severity of the 
situation.
  As I stood there during the entire operation and saw people in 
wheelchairs and people who were challenged physically coming off the 
elevators, we come to realize the importance of taking lessons in 
advance to understand the potential for injury and perhaps even loss of 
life in these kinds of situations.
  So while the story was absolutely a positive one, and Sergeant at 
Arms Livingood and the Architect of the Capitol, Ken Lauzier and the 
Chief of the Capitol Hill Police did an absolutely fantastic job with 
all the various components that we could muster on Capitol Hill, Dr. 
Eisold's staff to treat those personnel who were, in fact, affected 
with smoke inhalation, there are some lessons to be learned from this. 
I would hope that it would remind all of us that we need to understand 
that life safety, both for ourselves and for our staffs and for our 
constituents, needs to be a top priority every day this Congress is in 
session.
  Mr. HOYER. Madam Chairman, will the gentleman yield?
  Mr. WELDON of Pennsylvania. I yield to the gentleman from Maryland.
  Mr. HOYER. Madam Chairman, I thank the gentleman from Pennsylvania 
(Mr. Weldon) for yielding to me. Madam Chairman, as all of us know, 
many of us know, the gentleman from Pennsylvania has been one of the 
leaders on fire service protection not only on Capitol Hill but 
throughout this country.
  He is a former chief of a volunteer fire company of his own 
congressional district, a former municipal leader. And he did, in fact, 
raise to a high level of attention, subsequent to the fire in Speaker 
Wright's office, the necessity to make our buildings more safe for our 
Members, for our staffs, as well as for the visitors to our offices.
  Today's fire in the Longworth House Office Building was a fire that 
apparently an acetylene torch, I think, heated up some materials that 
ignited very rapidly and shot flames seven stories high up through the 
elevator shaft. There was very significant smoke on

[[Page H2267]]

the seventh floor. I do not know about other floors, but I heard from 
my staff on the seventh floor.
  What is significant, and I think we all ought to know, is the 
extraordinarily quick and very skillful response that was given by the 
Capitol Hill officers, our medical staffs, the Sergeant at Arms' staff, 
all of those who were called upon to assist in evacuating the building. 
Some of the officers that were taken out, were taken out because they 
remained in the building to make sure that the building was, in fact, 
evacuated by showing great courage to assure the safety of all of those 
who might be in the building.
  In addition, I want to report that my staff reported that the 
District of Columbia Fire Department was there almost immediately. 
There has been some criticism of the District of Columbia Fire 
Department for not responding as quickly as they might, but in this 
instance they were there very, very quickly.
  And I think we owe a debt of thanks to all of those who we rely on 
day-to-day. As is so often the case, we do not think of them because we 
are not personally involved, it does not happen, there is not a crisis. 
And because they are there to respond to domestic crises such as this 
and we do not have one, we may not acknowledge their presence and their 
readiness to risk their limbs and their lives to protect their 
communities.
  So I want to join with the distinguished gentleman from Pennsylvania 
(Mr. Weldon), who has really made it a cause, and a successful one at 
that, to ensure that we are aware of the risks and take every 
precaution to avert risks that might have tragic consequences for 
individuals not only on Capitol Hill, not only in this city, but 
throughout this country.
  So I thank the gentleman for taking this time and thank him for 
yielding me this time.
  Mr. WELDON of Pennsylvania. Madam Chairman, reclaiming my time, just 
in closing I would mention from the D.C. Fire Department that Battalion 
Chief Schaefer was the leader. We had Engine Company 13, 2, 8 and 6; 
Truck Company 7 and 10; Rescue Company 1 and 3; and Battalion 2. They 
did an absolutely fantastic job.
  In addition, I would like to enter the names of those officers who 
were taken to the hospital. We do not know the status of these 
officers' conditions. They were all affected by smoke inhalation, but I 
think it once again underscores the need for us to be aware of the duty 
and the honor that these people take so seriously in protecting the 
lives of ourselves and our constituents.
  Taken to local hospitals and either treated or currently there for 
further treatment are Sergeant Givens, Officer Merz, Officer Scott, 
Officer Worley, Officer Sturdivant, Officer Cleveland and Officer 
Blackman-Malloy.

                              {time}  1400

  We thank all of them. We thank the chief of the department, Chief 
Abrecht. We thank Bill Livingood for a fantastic job, Dr. Eisold, as 
well as Ken Lauizer and everyone who came together in doing what should 
have been the right thing, and that is responding. I would encourage, 
again, our colleagues to remember that on the seventh floor, the alarm 
did not go off.
  It is our responsibility to make sure if an incident occurs that we 
have to activate that manual alarm. It does not activate automatically. 
You have to pull that device down. That was not done on the seventh 
floor.
  Furthermore, I would say this is an opportune time for me to announce 
that next Thursday at this time, 12 noon, there will be 3,000 
firefighters from across the country in the parking lot right outside 
this door where we will assemble the largest gathering the Nation's 
fire and EMS community who are coming to us to talk about the fact that 
they feel we are not doing enough to assist them in their current 
efforts by our agencies in Washington to deal with the threats of 
terrorism and the response to those terrorist acts.
  I would encourage our colleagues to join with the gentleman from 
Maryland (Mr. Hoyer) and myself as we have a national press conference 
with the Speaker in attendance and focus on their issues, one week from 
today at 12 noon directly outside of the House Chambers.


                    Amendment Offered by Mr. Nadler

  Mr. NADLER. Madam Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Nadler:
       Page 17, strike line 20 and insert the following:
       (b) Authority of District Courts.--
       (1) In general.--Notwithstanding--
       Move the remaining text on lines 21 through 25 2 ems to the 
     right.
       Add after line 25 the following:
       (2) Obscuring of witnesses.--(A) Upon the request of any 
     witness in a trial proceeding other than a party, the court 
     shall order the face and voice of the witness to be disguised 
     or otherwise obscured in such manner as to render the witness 
     unrecognizable to the broadcast audience of the trial 
     proceeding.
       (B) The presiding judge in a trial proceeding shall inform 
     each witness who is not a party that the witness has the 
     right to request that his or her image and voice be obscured 
     during the witness' testimony.

  Mr. NADLER (during the reading). Madam Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN pro tempore (Mrs. Emerson). Is there objection to the 
request of the gentleman from New York?
  There was no objection.
  Mr. NADLER. Madam Chairman, I am pleased to offer this amendment 
along with my colleague, the gentleman from Ohio (Mr. Chabot). As my 
colleagues know, this bill would permit cameras into Federal district 
courts at the judge's discretion. In the past, I have been very 
concerned, and I have opposed allowing cameras into trial courts 
because I feared it might intimidate witnesses. It is already 
intimidating enough for someone who witnesses an accident or a crime, 
and then sees an appeal on television that the police ask anyone who 
has seen this or has information please come forward. It is 
intimidating enough for such a person who knows that if they come 
forward they may well be asked to testify in court; they may well be 
subject to cross-examination by an attorney whose job it is to impeach 
their credibility as a witness, and to make them look foolish. In 
effect, that is a pretty intimidating prospect.
  It is bad enough even if you are only going to be subject to that 
cross-examination in front of 30 people in the courtroom. But to be 
subject to that cross-examination perhaps in front of all your 
relatives, and friends, and wife, and children, and neighbors might be 
even more intimidating. I have always feared that this might lead to 
some witnesses not coming forward.
  The gentleman from Ohio (Mr. Chabot) suggested a way out of this 
dilemma, and I am delighted to join him in offering this amendment. He 
suggested, and what this amendment does is to say that where you are 
having cameras in the courtroom in a trial court, any witness other 
than a party to the action may at his or her request have his face and 
voice distorted so you cannot tell whose face it is, and you cannot 
recognize the voice. You can still hear what he is saying on the 
television so that, yes, this person's name will be known; yes, you can 
photograph him walking in or out of the courtroom, but he is not, he 
will have less fear of being made to look foolish in front of his 
friends on television by the opposing attorney.
  This is not the most important thing in the world, but I suspect very 
much that there are witnesses in this world who will come forward if 
this is the procedure who might not otherwise come forward if this is 
not the procedure.
  Again, you have cameras in the courtroom. This does not take that 
away. But it simply allows a witness at the witness' request to have 
his or her face and voice obscured during the testimony. At the 
committee, no arguments were offered in opposition so there was some 
confusion and some Members voted against it. I hope that will not 
happen on the House floor today.
  Mr. CHABOT. Madam Chairman, I move to strike the last word.
  I rise in support of the amendment offered by the gentleman from New 
York (Mr. Nadler) and myself. The amendment gives important protections 
to witnesses who may be otherwise reluctant to testify in a televised 
trial by requiring upon request of the witness that the face and voice 
of the witness be disguised or obscured in such a manner that it will 
not be evident who that person is testifying. I

[[Page H2268]]

think it is a good amendment. I thank the gentleman for offering it.
  Mr. COBLE. Madam Chairman, I move to strike the requisite number of 
words.
  I will not consume 5 minutes. As we all know, cameras in the 
courtroom is an issue adamantly opposed by some; enthusiastically 
supported by others. This amendment, it seems to me, does no harm. It 
modifies the cameras in the courtroom approach slightly, but I think 
there the error is harmless, and I will not resist the amendment, not 
oppose the amendment.
  Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the 
requisite number of words.
  After the passionate appeal of the gentleman from North Carolina, I 
thought I would try to restore a sense of calm to the Chamber. I also 
do not regard this as an amendment of enormous significance. I may 
approach it, however, from the opposite direction. I do not like the 
underlying provision.
  I think requiring witnesses to a trial to be on camera, I think, is a 
mistake. I think where you are talking about appellate courts, it is 
reasonable, and I think the Supreme Court of the United States deserves 
criticism for not allowing its arguments to be run. I can think of few 
things that would be more useful and more informative for the country 
than for people to be able to watch Supreme Court arguments.
  The notion that the nine Supreme Court justices and members of the 
Supreme Court bar would somehow be intimidated or thrown off by this is 
nonsensical. But when you get to witnesses, I think it is a mistake. I 
am not offering an amendment now; I do not want to take the time in the 
House. I do think the gentleman's amendment makes a situation that I 
regard as an unfortunate one a little less unfortunate. I think it is a 
good idea to have the face obscured.
  On the other hand, I do have to say the gentleman said, well, people 
might be afraid of being made to look foolish. They will still be made 
to look foolish. They will, however, be made to look foolish with their 
face obscured. There may be a large number of people in this society 
who do not mind being made to look foolish, when everyone knows who 
they are, as long as their faces are obscured. But I think the, okay, 
put a mask over me and make me look silly group is smaller than my 
friend may make.
  So therefore I would rather not see this at all with regard to 
witnesses. I do think anybody ought to have a right to object. When you 
talk about people who are involuntary participants, private citizens, 
not used to the public debate being thrust into the public this way in 
a trial, I do not think it is a good idea to require them to be cross-
examined, perhaps, and made to look foolish to be there. But that is 
not the issue now. This is an amendment that, as I said, makes what I 
regard as an unfortunate situation a little less unfortunate, so I will 
also vote for the amendment.
  The CHAIRMAN pro tempore. The question is on the amendment offered by 
the gentleman from New York (Mr. Nadler).
  The amendment was agreed to.
  Mr. WATT of North Carolina. Madam Chairman, I move to strike the last 
word for the purposes of a colloquy with the chairman.
  I simply wanted to, in a sense, create a legislative record so that 
everybody is aware of an interpretation that we are giving to a 
provision in this bill, and wanted to call the chairman's attention to 
page 3, section 3 of the bill, and reaffirm with the chairman that it 
is, in fact, the intention of this bill to allow an immediate appeal 
either on the granting of a class action motion, or on the denial of a 
class action motion to assure that this provision in the bill is 
intended to work in both directions.
  Mr. COBLE. Madam Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from North 
Carolina.
  Mr. COBLE. Madam Chairman, the gentleman from North Carolina is 
precisely correct; that is the intent, to apply to both.


                    Amendment Offered by Ms. Lofgren

  Ms. LOFGREN. Madam Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Ms. Lofgren:
       Add the following at the end:

     SEC. 12. PARENT-CHILD TESTIMONIAL PRIVILEGES IN FEDERAL CIVIL 
                   AND CRIMINAL PROCEEDINGS.

       Rule 501 of the Federal Rules of Evidence is amended--
       (1) by designating the 1st sentence as subdivision (a);
       (2) by designating the 2nd sentence as subdivision (c); and
       (3) by inserting after the sentence so designated as 
     subdivision (a) the following new subdivision:
       ``(b)(1) A witness may not be compelled to testify against 
     a child or parent of the witness.
       ``(2) A witness may not be compelled to disclose the 
     content of a confidential communication with a child or 
     parent of the witness.
       ``(3) For purposes of this subdivision, `child' means, with 
     respect to an individual, a birth, adoptive, or step-child of 
     the individual, and any person (such as a foster child or a 
     relative of whom the individual has long-term custody) with 
     respect to whom the court recognizes the individual as having 
     a right to act as a parent.
       ``(4) The privileges provided in this subdivision shall be 
     governed by principles of the common law, as they may be 
     interpreted by the courts of the United States in the light 
     of reason and experience, that are similar to the principles 
     that apply to the similar privileges of a witness with 
     respect to a spouse of the witness.''.

  Ms. LOFGREN (during the reading). Madam Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN pro tempore. Is there objection to the request of the 
gentlewoman from California?
  There was no objection.
  Ms. LOFGREN. Madam Chairman, this amendment is offered by myself and 
the gentleman from New York (Mr. Nadler) to correct what is a very 
serious defect in our Federal criminal and civil procedures.
  Under our Federal law and the law of many States, children can be 
compelled to testify against their parents, and parents can be 
compelled to testify against their children. Although most prosecutors 
refrain from subjecting a family to this terrible situation, it can and 
does occur. I have long believed that parents and their children should 
be shielded from this trauma, and that doing so would not do 
significant damage to the administration of justice.
  Therefore last month the gentleman from New York (Mr. Nadler) and I 
introduced H.R. 3577, which currently has 18 cosponsors in the House. 
This bill, the Confidence in the Family Act, is identical to this 
proposed amendment.
  This amendment would ensure that parents and children could not be 
compelled to testify against one another, and that confidential 
communications between parents and children will be protected. These 
privileges would be similar to the privileges currently provided under 
Federal law to spouses, and would be developed by the courts in light 
of the common law, reason, and experience.
  Rule 501 of the Federal Rules of Evidence states that, except as 
otherwise required by the Constitution of the United States or act of 
Congress, the privilege of witnesses, persons, governments, States, et 
cetera, will be governed by the principles of the common law as they 
may be interpreted by the courts of the United States.
  We went to this development of evidence back in 1975 when the 
Committee on the Judiciary recommended, and the Congress adopted, the 
rule that allows our courts to develop the details of privileges and 
exceptions.
  As you note, in the amendment that the development of this exception 
for parents and children should follow that allowed for spouses. In 
answer to some questions that Members have had, spouses currently can 
be compelled to testify against each other in certain circumstances.
  For example, threats against spouses and spouses' children do not 
further the purposes of marital communications, and therefore are not 
protected from disclosure. Similarly, marital communications subject to 
the privilege are subject to an exception for crimes committed against 
a minor child and the rule that one spouse cannot be a witness against 
the other is subject to exception where one spouse commits an offense 
against the other. That is U.S. v. Allery.
  Why is this important? I think many of us, without going into any of 
the details, recently observed a situation in which a mother was asked 
in a very high profile case to testify about confidences that her 
daughter had placed

[[Page H2269]]

in her. When I saw that, and it is not a new thing in the law, I 
immediately thought of my daughter who is 16 years old, and I thought, 
could the government force me to reveal what my 16-year-old told to me 
in confidence? There is something quite wrong about that.
  We parents spend most of our lives trying to make sure that our 
children trust us enough that if they have a problem, if there is 
something that is troublesome, they always know that they can, and they 
should, come to their mom and sort through it with us so that we can 
help them make mature decisions, so that we can help them lead a good 
life, and come to where they need to be.
  If the young people of this country understand, as they currently do 
now, unfortunately quite well, that the confidences revealed to a 
parent as we sort through the things that we do in adolescence could be 
forced out into public view, that important bond, that important value, 
that family value is unalterably disrupted.
  We have talked a little bit about the details and the exceptions to 
this rule of evidence, but I think it is important to understand why 
there are exceptions to forcing testimony at all.

                              {time}  1415

  We do not force a husband and wife to testify against each other, and 
the reason why is that we have said that the spousal relationship is so 
important that we will not allow it to be disrupted by the government 
for any purpose.
  Surely, the relationship between mother and daughter, between father 
and daughter, between father and son is as valuable, as precious as 
that between husband and wife.
  I hope that the House will look favorably upon the amendment.
  Mr. COBLE. Madam Chairman, I rise in opposition to the amendment, and 
I do so not real comfortably because of the fact that the gentlewoman 
from California (Ms. Lofgren) has been a very valuable member of the 
Committee on the Judiciary and, more specifically, the Subcommittee on 
Courts and Intellectual Property.
  But I say to the gentlewoman from California, there is a matter that 
probably should have come a little earlier. I realize that we cannot 
always be perfect as far as timing is concerned. But Rule 501 simply 
requires a court to observe principles of common law when deciding 
whether to confer privileged status to an individual or relationship 
unless an action is civil and involves State law, in which case State 
law on the matter would be applicable.
  A privilege means, as most of my colleagues know, that a court may 
not compel testimony against a privileged witness or party. For 
example, many States will not compel a person to testify against his or 
her spouse or to reveal confidential conversations between them.
  The amendment creates a broad privilege that would prevent a court 
from compelling a witness to testify against a child or a parent of 
that witness or from revealing confidential conversations between the 
two. The overwhelming majority of Federal and State courts, Madam 
Chairman, have rejected such a parent-child privilege.
  The Judicial Conference--well, let me say it a different way. I do 
not mean to say that we should only comply with what the Judicial 
Conference wants. But we do stay in touch with the Judicial Conference, 
and the Judicial Conference has not informed the committee that it 
plans to recommend any changes to Rule 501, which is of some 
significance I think.
  Recognition of a parent-child privilege might prevent a parent from 
acting in the child's best interest by notifying authorities. Similarly 
would the alleged benefits of such a privilege outweigh the harm caused 
by a child whose testimony could not be compelled against a parent 
indulging, for example, in drug trafficking.
  The scope of the privilege is not explained in the Lofgren amendment. 
I do not think the scope of the privilege is explained in the 
amendment. For example, would it only apply to unemancipated minors? 
What about stepparents? What about grandparents?
  And I guess I alluded to this earlier, Madam Chairman, that this was 
not the subject of the subcommittee hearing nor the full committee 
markup. And I think the idea is, essentially, untested at the State 
level; and I just do not believe that we can anticipate the 
consequences of enactment. And I just believe that it is ill-timed, 
among other reasons that I just mentioned.
  Madam Chairman, I yield to the gentlewoman from California (Ms. 
Lofgren).
  Ms. LOFGREN. Madam Chairman, I recognize that the gentleman from 
North Carolina disagrees on the substance, but I did want to clarify so 
as not to mislead in terms of my previous comment. I was referring to 
line 3 in Rule 501.
  ``The privilege of a witness, person, government, State or political 
subdivision thereof shall be governed by the principles of the common 
law as they may be interpreted by the courts of the United States and 
in the light of reason and experience,'' is what I meant to refer to so 
as to avoid any confusion.
  And as my colleague notes in the amendment, on line 3, page 2, the 
amendment suggests to the court that the privileges to be carved out 
for parent-child should be similar to those with the same exceptions 
that have been devised for the spousal privilege.
  Further, in answer to the question as to foster parents or stepchild, 
I have suggested, on line 17 on section 3, that such individuals should 
be included if the court recognizes that the individual is seen as 
having the right to act as a parent.
  Mr. NADLER. Madam Chairman, I move to strike the last word.
  Madam Chairman, I rise to support this amendment to protect the 
parent-child privilege. A few weeks ago, I joined with the gentlewoman 
from California (Ms. Lofgren) to introduce a bill to create this 
privilege in Federal law; and I am proud to support this amendment 
today.
  Frankly, I always assumed it was in the law. It was only when we read 
about the situation with Ms. Lewis being compelled to testify against 
her daughter by the independent counsel that I, to my surprise, found 
there was no such privilege.
  This amendment will not affect that situation. That testimony has 
already occurred. But it will affect the future.
  We pride ourselves in this country on the sanctity of the family. It 
is one of the core, fundamental American values. We encourage our kids 
to talk to us. We ask them to confide in us, to come to us when they 
are in trouble. It is not always easy, but I am sure a lot of fellow 
parents out there will agree with me when I say that developing that 
bond of trust between parent and child is part of what being a parent 
is all about.
  The concept that a parent could be compelled to testify against his 
or her own daughter or son is shocking to a lot of people. It is 
shocking to me. In fact, a lot of people that I have spoken to are 
amazed that this kind of thing is not illegal already. They have asked, 
how can we do this in America?
  We have decided in our judicial system that certain privileges, 
certain relationships are sacred. The vast majority of jurisdictions 
recognize the husband-wife privilege as well as attorney-client and 
psychiatrist-patient. And, yes, there are cases that would have turned 
out differently if we could have compelled a psychiatrist to testify 
about his patient or lawyer against her client or husband against wife 
or wife against husband. But that is not the kind of judicial system we 
want, where husbands and wives are compelled to testify against each 
other except where there has occurred spousal abuse or child abuse or 
something of that nature. It is not the kind of country we want.
  I have long believed that the same sort of privilege should be 
extended to parents or children. No parents should ever be faced with 
the agony of being in contempt of court or of testifying against his or 
her child. No child should ever have to fear that sharing personal 
information with his parent or her parent could result in a subpoena 
for his parent.
  This amendment would remedy this by establishing this parent-child 
privilege and would require the Federal courts to establish its 
boundaries according to the principles of common law as well as the 
court's own reason and experience.
  For the past several years, there has been a lot of talk in this town 
about family values. I think it is fair to say that this amendment is a 
test of that.

[[Page H2270]]

If we truly respect family values, we must put our money where our 
mouth is. If we truly respect family values, we must protect the 
ability of parents and children to have full trust in each other and 
not fear the court's subpoena to get in between them.
  Now, I heard the gentleman a moment ago say that we do not want to 
prevent parents, that this amendment might prevent parents from 
notifying authorities in case of crimes or damages. But that is 
mistaken. It would not. This amendment would only prevent compulsion 
from the court. It would prevent the court from compelling a parent to 
testify or a child to testify against his or her parent. It would 
certainly not prevent the parents from notifying the police or the 
courts of drugs of or crimes or of danger or anything else that they 
wanted to notify and thought it advisable to notify the police or other 
authorities about. It simply would say the court shall not be between a 
parent and child and compel that testimony.
  I think we have to recognize, as to this human relationship we have, 
if we are ever going to be serious about protecting family values, this 
is the key. Everything else we do about family values may be wise or 
not wise, but nothing is more key than enabling a parent and a child to 
talk under all circumstances without anyone worrying that someone is 
going to compel the child or the parent to testify in court about the 
confidences. We want children to be able to confide in their parents 
and vice versa.
  So I very much urge all my colleagues to support this excellent 
amendment.
  Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the 
requisite number of words.
  I rise to disagree with my friend on the general principle, also on 
one specific. He said, in the course of discussion of good 
conversations with our parents, we should put our money where our mouth 
is. My mother always told me never to put any money in my mouth. So I 
want to be truth to what she taught me.
  But I have both substantive and procedural objections to this 
amendment. I understand that a lot of my colleagues were unhappy with 
what Kenneth Starr did. I have been often unhappy about what Kenneth 
Starr did. We might even want to come back after we have adjourned in a 
special session and call it the Kenneth Starr correction session. 
Because there are a number of things I would like to do to change some 
of the things Kenneth Starr has done, beginning with the underlying 
statute, but not in this manner.
  Hard cases make bad law we are told. Well, it can also be bad law if 
we react too quickly because we have a specific objection to a 
particular act. I am sorry that he subpoenaed Marcia Lewis. But what if 
we were talking about a case of murder? What if we were talking about a 
kidnapping? What if we were talking about a 60-year-old parent and a 
35-year-old child? What if the criminal was the 60-year-old parent and 
the 35-year-old child had valuable information dealing with a serious 
felony?
  This bill extends the privilege equally to a 35-year-old child of a 
60-year-old accused criminal as it does to a 35-year-old mother of an 
8-year-old child, or vice versa. So, for instance, one of the questions 
I have and I noted my staff pointed out to me, the State of 
Massachusetts has such a privilege for minor children only. Now, that 
is an interesting idea I would like to explore. Maybe there ought to be 
some kind of privilege for minors. But that is not in this bill.
  This bill went through subcommittee. It went through hearing and 
subcommittee and committee. This is the first I have heard of it. I 
notice the gentlewoman from California (Ms. Lofgren) did file this as 
part of her bill on March 28, the Friday before we went out. It is just 
not enough time.
  This is civil and criminal. Maybe there should be a privilege in 
civil cases. Although, even in civil cases, I note when I read about 
insider trading, a crime which a lot of people on my side do not like, 
that very often those involved in insider trading are relatives, they 
are adult relatives, the adult stockbroker son of a lawyer father or 
mother. Well, I do not know that I want to give those people a 
privilege.
  I do not see that there is any problem in saying that adult children 
and adult parents who are in the financial business can conspire to do 
inside trading without talking to each other. These are all the issues 
that ought to be talked about, and they have not been.
  I do not think it is a good idea in anger against Kenneth Starr to 
bring this forward at this point without knowing a lot more about it. 
Maybe there are Members here who know a lot more than I do about this 
subject. That would not be hard. But that is precisely the point. I 
doubt that very many of us are very familiar with this.
  The gentleman from New York (Mr. Nadler) acknowledged that he was 
surprised, as many were, that there was no such privilege. I do not 
think we should go as a body from ignorance about it, which I certainly 
had, to within a month or so passing a law that governs every civil 
case and every criminal case in the Federal system and every parent and 
every child no matter what their age.
  Madam Chairman, I yield to the gentlewoman from California (Ms. 
Lofgren).
  Ms. LOFGREN. Madam Chairman, I thank the gentleman from Massachusetts 
for yielding.
  I think the point made about hearings is not a balanced one and it is 
one I have made from time to time on this floor about other bills. We 
have offered it up as an amendment to this bill because it is germane 
and because I am reasonably confident that my bill will not be heard.
  Mr. FRANK of Massachusetts. Madam Chairman, let me say this. I think 
the gentlewoman has made something of an assumption that is not fair to 
the gentleman from North Carolina. I do not see why she would assume 
that we could not have a hearing on this issue. I would be surprised if 
the gentleman from North Carolina said at an appropriate time he will 
not do this.
  I will note that, on a bill that has been a bill for less than a 
month, it certainly would not be fair to criticize, and the gentlewoman 
was not criticizing. We have only been back in session for about a week 
and a half. But I think this is something we should be considering. But 
taking it up on the floor now, when nobody knows much about it, without 
any of these questions, on a blanket basis, seems to me a very poor way 
to legislate.
  I also want to add again, I disagree at this point. I do not 
understand why a 40-year-old who may have murdered someone should be 
shielded from his or her 60-year-old parent testifying. I do not 
understand that. It is a very different situation if we are talking 
about a 14-year-old. But having one blanket to cover all of these 
situations seems to me to be a mistake.
  Ms. LOFGREN. Madam Chairman, if the gentleman would yield further, 
that is a substantive disagreement; and that is fair enough.
  I would like to point out, however, in defense of the proposal, even 
though I understand his valid and thoughtful objection, but the better 
view in terms of the cases as to criminal activity in the area of 
spousal privilege is that the privilege does not apply to furtherance 
of this.
  Mr. FRANK of Massachusetts. Madam Chairman, I thank the gentlewoman. 
As she knows, the better view means, for the nonlawyers, understand my 
colleague is talking lawyer now, not English. That is not her fault. 
That is the language.
  The CHAIRMAN pro tempore (Mrs. Emerson). The time of the gentleman 
from Massachusetts (Mr. Frank) has expired.
  (By unanimous consent, Mr. Frank was allowed to proceed for 2 
additional minutes.)
  Mr. FRANK of Massachusetts. Madam Chairman, the better view means 
more people hold that view than hold the other view. It means more 
courts have gone one way more than the other. But it also means some 
courts have gone the other way. So the gentlewoman is agreeing that, 
under the law to which she would refer us, this is an unsettled 
question and some judges go one way and some another.
  Well, I think if we are going to deal with this kind of privilege, we 
ought to decide whether we want it to cover murder cases. And, again, 
what the gentlewoman has here is a blanket provision that applies 
equally as between

[[Page H2271]]

adults who may have conspired together to murder and minor children. 
And we all think about children. We all think about protecting young 
children. That is a very valid thing to do.

                              {time}  1430

  It seems to me Massachusetts has a good idea by talking differently 
about minor children. That is not what the gentlewoman's amendment 
does. To rush into this now and to lock it in would be an emotional 
response to an understandable provocation, but it would be, I think, an 
inappropriate way to legislate.
  I would say, as the senior minority member of the committee, this is 
the first time I have heard of this issue, today, yesterday, taking it 
back to the Committee on Rules. I would be glad to go and lobby my 
colleague from North Carolina and let us address this issue of 
privilege. There may be other privileges we want to look at. The 
question of lawyer/client privilege when the client has died might be a 
problem. I suppose lawyer/client privilege when the lawyer has died is 
less problematic, except for Shirley MacLaine.
  But, in general, this whole question of privilege could be looked at, 
but not hastily in reaction to a very politicized situation involving 
the current Independent Counsel, without many Members knowing what they 
should about it or having a chance to explore it.
  So I urge the Members to vote ``no'' on this, and let us deal with 
this very, very important issue in a more thoughtful context.

  Mr. HYDE. Madam Chairman, I move to strike the requisite number of 
words.
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. HYDE. Madam Chairman, I want to join the gentleman from 
Massachusetts (Mr. Frank) in his well thought out sentiments because I 
think he is exactly right. This is an important subject and it is one 
that deserves thoughtful consideration.
  A trial is a search for truth; and when we start asserting 
privileges, we are putting obstacles to that search for truth. They may 
well be justifiable, but I think they do impede the quest for learning 
the facts about a given situation.
  We have a spousal privilege. We have an attorney/client privilege. We 
have executive privilege. We have a Secret Service privilege. Now we 
are creating a parent and child privilege. The whole subject of 
privilege is, it seems to me, important and significant and 
complicated, and perhaps we should look at it in a more thoughtful way 
than we are doing here.
  We missed the priest/penitent privilege. But what we are doing here, 
the gentlelady's amendment is creating for the first time a Federal 
privilege, because section 501 of the Federal Rules of Evidence says 
there are no Federal privileges. We follow the State law. Of course 
here we are creating for the first time a new privilege: A parent may 
not be compelled to testify against a child.
  I will forgo the opportunity to broaden this discussion as some have 
by bringing in the name of the Independent Counsel now, but I think it 
is helpful in this context to note that President Clinton's lawyers 
deposed Paula Jones' mother, Delmer Lee Corbin, and her sister, Lydia 
Cathey, in October of 1997. There was no hue and cry about protecting 
the mother from compulsory testimony.
  I think it is worth noting that Colonel North, Oliver North, back in 
the halcyon days of Iran Contra, his wife was called to testify before 
the grand jury. Colonel North's lead attorney, Brendan Sullivan, was 
subpoenaed to appear before the grand jury. Colonel North's wife's 
sister was interrogated about how much it cost to feed their daughter's 
horse. The Norths' baby-sitter and a teenager who mowed the Norths' 
lawn were questioned about how much they were paid. Oh, and Colonel 
North's minister was asked how much the North family contributed on 
Sunday.
  So we have had these things before. Fortunately, the gentlewoman has 
become sensitized to the problem somewhat late in this century, but 
that is all right. But I would suggest that this is inappropriate, and 
I hope the gentlelady's amendment is defeated.
  I hope, and I pledge, as the gentleman from Massachusetts (Mr. Frank) 
suggests, that we look at this whole subject across the board on 
privilege, but try to take it out of the fever swamps of our current 
political situation.
  Ms. LOFGREN. Madam Chairman, will the gentleman yield?
  Mr. HYDE. I yield to the gentlewoman from California.
  Ms. LOFGREN. Madam Chairman, I just would like to note that I think 
in 1973, in the 93rd Congress, that the reference, at least the notes 
from the Committee on the Judiciary note several privileges that were 
recognized and then followed into rule 501 for future delineation.
  I understand that the gentleman's objections are well-stated and 
sincere, and everyone has respect for his judgment. I would just like 
to note that I am in my second term. I was not here during Iran Contra 
to object or to introduce bills about that. I think it is terrible if 
Mr. North's minister was called by the grand jury.
  As to the calling of the mother of the individual referenced, I think 
that is objectionable as well. I did not know about it until after I 
introduced this bill.
  Mr. HYDE. Madam Chairman, I yield back the balance of my time.
  Ms. JACKSON-LEE of Texas. Madam Chairman, I move to strike the 
requisite number of words.
  Madam Chairman, although the arguments on the floor opposing the 
gentlelady's amendment may prove to be somewhat convincing, I would 
like to take those arguments and turn them around in support of the 
gentlelady's amendment, and to acknowledge the gentleman from Illinois 
(Mr. Hyde), the chairman, in recognizing that this is in fact a 
bipartisan amendment or one that should garner bipartisan support.
  The fact that Oliver North's relatives were called, the fact that the 
President's lawyers deposed the mother of Ms. Jones, does not make it 
any more right. The issue of parent/child immunity should certainly 
fall and be given enough or sufficient or equal deference as the 
patient/doctor privilege, the psychiatrist/patient privilege, the 
priest's privilege with his religious constituent, and certainly the 
spousal privilege.
  What the gentlewoman is saying, I believe, is that the common law has 
not responded to the crisis. Putting aside the immediacy of the 
national attention to the recent set of circumstances, I would argue as 
an aside that the hauling down, in front of massive media, the horrible 
evidence of the stress on that particular parent certainly encourages 
this kind of proposal. It does not take away from it. But it certainly 
answers a response to any set of circumstances that involves a parent/
child, although the gentlewoman's proposal and the proposal of the 
gentleman from New York (Mr. Nadler) does give an exception if there is 
criminal fraud or conspiracy. So, therefore, if a parent and child were 
conspiring to do wrong, there is an exception.
  Just a few weeks ago we saw a daring attempt for a mother to help her 
child escape from jail. I do not think there is any need to worry about 
whether there is parent/child immunity. The bare facts, the visuals 
will allow us to convince, I am sure, at some point, though there will 
be a trial, a jury that something was done wrong, without either the 
child or the parent being required to testify against each other. There 
are others who may provide the evidence that would be able to point to 
the criminal and/or the civil act of wrong.
  So I do think that if we talk about all of our expressions of the 
sanctity of the parent, the child, our brief in the best interest of a 
child, the relationships of family, I believe that this amendment is 
one that carries with it the weight of what is right, the moral weight 
of what is right.
  I welcome the opportunity for further hearings.
  Ms. LOFGREN. Madam Chairman, will the gentlewoman yield?
  Ms. JACKSON-LEE of Texas. I yield to the gentlewoman from California.
  Ms. LOFGREN. Madam Chairman, as someone who is steeped in the law and 
a former judge, I am sure the gentlewoman is aware of the so-called 
trilemma that lends doubt to the veracity of testimony compelled by a 
parent against a child. If the parent

[[Page H2272]]

faces this dilemma, she can either fudge the truth, she can betray her 
child's confidences, or she can go to jail. Under those three choices, 
many prosecutors and many judges have grave doubt about the veracity of 
testimony, because some parents choose to fudge the truth, the first 
option.
  Ms. JACKSON-LEE of Texas. Madam Chairman, I thank the gentlewoman for 
that clarification. She is so very right, that in the course of the 
setting of a trial and a trial atmosphere, it is often doubtful as to 
whether that parent is totally truthful on the facts. And so I think 
that the question of whether or not we are moving too quickly on a 
parent/child immunity, I would hope that we would recognize that we 
would not do great or enormous injustice or deny justice by providing 
that privilege.
  Mr. FRANK of Massachusetts. Madam Chairman, will the gentlewoman 
yield?
  Ms. JACKSON-LEE of Texas. I yield to the gentleman from 
Massachusetts.
  Mr. FRANK of Massachusetts. Madam Chairman, let me give another 
example. Two people for whom I have an enormous amount of respect are 
two people who may be considered to have betrayed the family tie, but 
they are the Kaczynskis, Ted Kaczynski's brother and mother. They were 
not compelled, but they came forward. But that is an example. They came 
forward. Since they came forward, I think lives were saved, innocent 
lives were saved because they took this dangerous murderer off the 
streets.
  If, in fact, the prosecutor became aware that Mrs. Kaczynski had 
information that could have led, as it in fact did, to the apprehension 
of her son, I do not see why we would want to give absolute privilege 
for a man in his 50s and his mother so that she could not be compelled 
to testify. In her case it was voluntary, but we could have seen a 
situation where that compulsory testimony could have been useful.
  Yes, where we are talking about a small child, maybe a teenager, it 
is a very appealing situation. Maybe we ought to tailor a privilege for 
that. But where we are talking about Ted Kaczynski's mother and Ted 
Kaczynski, I do not think it is at all immediately obvious that we 
ought to, on this floor today, to vote to give somebody like that 
preference.
  The CHAIRMAN. The time of the gentlewoman from Texas (Ms. Jackson-
Lee) has expired.
  (By unanimous consent, Ms. Jackson-Lee of Texas was allowed to 
proceed for 2 additional minutes.)
  Ms. JACKSON-LEE of Texas. Madam Chairman, the gentleman is extremely 
convincing when we are talking about something that is heinous as that 
of those acts. I think, however, we need to ask the question as to 
whether or not, and a voice rises up, as to whether or not we know the 
status of the investigation and whether or not those investigating this 
heinous crime of the Unabomber would have, even without, would have 
been able to determine the fact that he was the person and brought him 
to justice.
  I think more often than not we find circumstances where the parent/
child relationship really rises above these questions of these very 
unique heinous crimes. I would simply say that the parent/child 
relationship, covering over 200 million Americans, we can find more 
cases than not when we should protect that relationship as opposed to 
suggest we would be, if you will, tampering or hindering the rights of 
justice if we did not allow the parent/child immunity. I simply see a 
range of places where that is important.
  I chair the Congressional Children's Caucus. I think that when we 
talk about promoting children as a national agenda, when we talk about 
allowing these relationships, I look to it as the bulk of children, if 
you will, and realize that in cases where we are talking about an 
adult, I think there are exceptions to inhibit any disallowance of 
justice.
  Ms. LOFGREN. Madam Chairman, will the gentlewoman yield?
  Ms. JACKSON-LEE of Texas. I yield to the gentlewoman from California.
  Ms. LOFGREN. Madam Chairman, I would just note that all of the modern 
cases that I have been able to find in the spousal immunity area that 
would be the guide in the parental/child immunity cases do make 
exceptions for criminal activity.
  I would note also that in the case cited by our colleague, the 
Kaczynskis, I would join in his admiration of the Kaczynski family that 
came forward under very trying circumstances and did the right thing 
and did save lives, and they did it voluntarily. I believe, had they 
relevant evidence, clearly that since they came forward with the 
evidence, they would have testified.
  The CHAIRMAN. The time of the gentlewoman from Texas (Ms. Jackson 
Lee) has again expired.
  (On request of Mr. Frank of Massachusetts, and by unanimous consent, 
Ms. Jackson-Lee of Texas was allowed to proceed for 1 additional 
minute.)
  Mr. FRANK of Massachusetts. Madam Chairman, will the gentlewoman 
yield to me?
  Ms. JACKSON-LEE of Texas. I yield to the gentleman from 
Massachusetts.
  Mr. FRANK of Massachusetts. Madam Chairman, my colleague said that 
there is an exception for criminal, but let me read what might be more 
relevant here, the title of her amendment as she wrote it: Parent/Child 
Testimonial Privileges in Federal Civil and Criminal Proceedings. If 
the gentlewoman in fact intends to exempt criminal, putting 
``criminal'' in the title is not the most artful drafting I have ever 
seen.
  Ms. JACKSON-LEE of Texas. Madam Chairman, let me close by simply 
saying that I really do believe that we have made a very strong 
argument as to the sanctity of the parent/child relationship. I would 
commend, as well, the family of the Unabomber, and would say that that 
is something that probably occurs more regularly than not where parents 
and relatives come forward because they believe in justice.

                              {time}  1445

  In the instance, however, where there is a relationship, parent-
child, I cannot imagine that we would diminish parent-child any lower 
than the priest, the psychiatrist, the physician, the lawyer and anyone 
else that has now benefited from privilege. And as well let me say that 
in the criminal sense I do believe that justice will not be denied if 
we provide this single privilege.
  Madam Chairman, I would ask support of this amendment.
  The CHAIRMAN pro tempore (Mrs. Emerson). The question is on the 
amendment offered by the gentlewoman from California (Ms. Lofgren).
  The question was taken; and the Chairman pro tempore announced that 
the noes appeared to have it.
  Ms. LOFGREN. Madam Chairman, I demand a recorded vote.
  The CHAIRMAN pro tempore. Pursuant to House Resolution 408, further 
proceedings on the amendment offered by the gentlewoman from California 
(Ms. Lofgren) will be postponed.


                  Amendment No. 4 Offered by Mr. DeLay

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

       Amendment No. 4 offered by Mr. DeLay:
       Add the following at the end:

     SEC. 12 LIMITATION ON PRISONER RELEASE ORDERS.

       (a) In General.--Chapter 99 of title 28, United States 
     Code, is amended by adding at the end the following new 
     section:

     Sec. 1632. Limitation on prisoner release orders

       ``(a) Limitation.--Notwithstanding section 3626(a)(3) of 
     title 18 or any other provision of law, in a civil action 
     with respect to prison conditions, no court of the United 
     States or other court listed in section 610 shall have 
     jurisdiction to enter or carry out any prisoner release order 
     that would result in the release from or nonadmission to a 
     prison, on the basis of prison conditions, of any person 
     subject to incarceration, detention, or admission to a 
     facility because of a conviction of a felony under the laws 
     of the relevant jurisdiction, or a violation of the terms or 
     conditions of parole, probation, pretrial release, or a 
     diversionary program, relating to the commission of a felony 
     under the laws of the relevant jurisdiction.
       ``(b) Definitions.--As used in this section--
       ``(1) the terms `civil action with respect to prison 
     conditions,' `prisoner,' `prisoner release order,' and 
     `prison' have the meanings given those terms in section 
     3626(g) of title 18; and
       ``(2) the term `prison conditions' means conditions of 
     confinement or the effects of actions by government officials 
     on the lives of persons confined in prison.
       (b) Conforming Amendment.--The table of sections for 
     chapter 99 of title 28, United States Code, is amended by 
     adding at the end the following new item:

``1632. Limitation on prisoner release orders.''.


[[Page H2273]]


       (c) Consent Decrees.--
       (1) Termination of existing consent decrees.--Any consent 
     decree that was entered into before the date of the enactment 
     of the Prison Litigation Reform Act of 1995, that is in 
     effect on the day before the date of the enactment of this 
     Act, and that provides for remedies relating to prison 
     conditions shall cease to be effective on the date of the 
     enactment of this Act.
       (2) Defintions.--As used in this subsection--
       (A) the term ``consent decree'' has the meaning given that 
     term in section 3626(g) of title 18, United States Code; and
       (B) the term ``prison conditions'' has the meaning given 
     that term in section 1632(c) of title 28, United States Code, 
     as added by subsection (a) of this section.

  Mr. DeLAY. Madam Chairman, I just wanted to say that this is a 
wonderful debate that we are having. It is great to be part of an 
institution that is actually trying to regain some of its authority and 
responsibility that the Founding Fathers envisioned in the Constitution 
of the United States, and I am offering an amendment with the gentleman 
from Pennsylvania (Mr. Murtha) that is, I think, pretty simple. It ends 
forever the early release of violent felons and convicted drug dealers 
by judges who care more about the ACLU's prisoners' rights wish list 
than about the Constitution and the safety of our towns and communities 
and our fellow citizens.
  Under the threat of Federal courts, States are being forced to 
prematurely release convicts because of what activist judges call 
prison overcrowding. In Philadelphia, for instance, Federal Judge Norma 
Shapiro has used complaints filed by individual inmates, criminals, 
convicted criminals, to gain control over the prison system and 
establish a cap on the number of prisoners.
  Federal Judge Shapiro put a cap on the number of prisoners in 
Pennsylvania. To meet that cap she ordered the release of 500 prisoners 
a week, 500 prisoners a week. In a 18-month period alone, 9,732 
arrestees were out on the streets of Philadelphia on pretrial release 
because of her prison cap. They were arrested on second charges, 
including 79 murders, 90 rapes, 701 burglaries, 959 robberies, 1,113 
assaults, 2,215 drug offenses and 2,748 thefts.
  How does Judge Shapiro sleep at night? Each one of these crimes was 
committed against a person with a family, dreaming of a safe and 
peaceful future, a future that was snuffed out by a judge who has a 
perverted view of the Constitution.
  Of course Judge Shapiro is not alone. We are seeing this all over the 
United States. There are many other examples. In Texas, my home State, 
a case that dates back all the way back to 1972, Federal Judge William 
Wayne Justice took control of the Texas prison system and dictated 
changes in basic inmate disciplinary practices that wrested 
administrative authority from staff and resulted in rampant violence 
behind bars.
  And under the threats of Judge Justice, under the threats of Judge 
Justice, Texas was forced to adopt what is known as the ``nutty release 
law'' that mandates good time credit for prisoners. Murderers and drug 
dealers who should be behind bars are walking the streets of our Texas 
neighborhoods as I speak, thanks to Judge Justice.
  Wesley Wayne Miller was convicted in 1982 of a brutal murder. He 
served only 9 years of a 25-year sentence for butchering an 18-year-old 
Fort Worth girl. Now, after another crime spree, he was rearrested. 
Huey Moe was sentenced to 15 years for molesting a teenaged girl. He is 
eligible for parole this September after serving only 2 years in 
prison. Kenneth McDuff was on death row for murder when his sentence 
was commuted. He ended up murdering somebody else.
  In addition to the cost to society of Judge Justice's activism, Texas 
is reeling from the financial impact of Judge Justice's sweeping order. 
I remember back when I was in the State legislature, 1979, the State of 
Texas spent about $8 per day per prisoner to keep these prisoners. By 
1994, with the full force of Judge Justice's edict being felt in the 
State of Texas, the State is spending more than $40 every day for each 
prisoner. That is a fivefold increase over a period when the State's 
prison system barely doubled. All of that money comes out of our 
families' pocket.
  The truth is, no matter how Congress and State legislatures try to 
get tough on crime, we will not be effective until we deal with 
judicial activism.
  The CHAIRMAN pro tempore. The time of the gentleman from Texas (Mr. 
DeLay) has expired.
  (By unanimous consent, Mr. DeLay was allowed to proceed for 5 
additional minutes.)
  Mr. DeLAY. Mr. Chairman, the courts have undone almost every major 
anticrime initiative passed by the legislative branch. In the 1980's, 
as many States passed mandatory minimum sentencing laws that the 
American people wanted to see happen around the country to keep these 
criminals in jail, judges checkmated the public by imposing prison caps 
on the amount of population that we can hold in prisons. When this 
Congress mandated the end of consent decrees regarding prison 
overcrowding in 1995, some courts just ignored our mandate.
  There is an activist judge behind each of most of the perverse 
failures of today's justice system, violent offenders serving barely 40 
percent of their sentences. Three and a half million, 3\1/2\ million 
criminals, most of them repeat offenders, are on the streets today and 
are on probation or parole. Thirty-five percent of all persons arrested 
for violent crime were on probation, parole or pretrial release at the 
time of their arrest.
  Well, the Constitution of the United States gives us the power to 
take back our streets. Article III allows the Congress of the United 
States to set jurisdictional restraints on the courts, and my amendment 
will set such restraints.
  I presume we will hear the cries of court stripping by the opponents 
of my amendment. These cries, however, will come from the same people 
who voted to limit the jurisdiction of Federal courts in the 1990 civil 
rights bill.
  Now let us not forget the pleas of our current Chief Justice of the 
United States, William Rehnquist. In his 1997 year-end report on the 
Federal judiciary he said, ``I therefore call upon Congress to consider 
legislative proposals that will reduce the jurisdiction of the Federal 
courts.'' We should heed Justice Rehnquist's call right here, right 
now.
  The voters will be watching this vote. A vote against this amendment 
is a vote to put prisoners, convicts, drug dealers and rapists on the 
streets of my colleagues' congressional districts. Judicial activism 
threatens the very safety of our children and our constituents, if in 
the name of justice murderers and rapists are allowed to prowl on our 
streets before they serve their time. It is time to return some sanity 
to our justice system and keep violent offenders in jail, and I ask my 
colleagues to support my amendment.
  Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the 
requisite number of words.
  Madam Chairman, I listened to the gentleman from Texas describe an 
amendment that I would be prepared to vote for but I do not see it 
before me. The gentleman talked about murderers and rapists walking the 
streets of our districts, and I do not want that to happen. And if it 
was an amendment that was limited as the gentleman said, I suspect it 
would get virtually no opposition here, but the amendment is far 
broader. It is not limited to murderers and rapists, it is not even 
limited to people who committed violent crimes. It applies to anybody 
convicted under any felony.
  Now there are some nonviolent felonies. There are also situations 
where prison conditions have been outrageous. The gentleman said we 
should not release murderers because of overcrowding. I agree. But what 
about people who might have violated a securities law or people who 
might have been guilty of nonsupport, if that were a felony, or some 
other nonviolent felony which we have, insurance fraud. I do not like 
people committing insurance fraud, but they are not all murderers and 
rapists. Most of them are probably not. It is probably kind of a 
distinction in the criminal class.
  And it also is not just overcrowding. It says prison conditions means 
conditions of confinement are the effect of actions by government 
officials on the lives of persons confined in prison. If in fact there 
are situations where particular prison officials have behaved in a 
outrageous fashion abusive of people's rights, may even have put these 
people in danger, and we are talking about nonviolent felons, I am not 
prepared to

[[Page H2274]]

say that no judge ever ought to let them out.
  Now, as I said, if the gentleman had offered the amendment he 
described, I would not be up on my feet talking about it and I would 
not expect anyone else to be. If we were talking about violent 
criminals, particularly murderers and rapists, but muggers and others 
who were being released surely for overcrowding, I would agree with 
him.
  We have an amendment that goes far broader. It does not just deal 
with overcrowding. It would immunize prison officials, as it is 
written, even by actions they took that were violative of people's 
rights and even for nonviolent criminals. It also is completely 
retroactive. It says any order now in effect is ended, and I think that 
would be a very unwise idea.
  Mr. DeLAY. Madam Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from Texas.
  Mr. DeLAY. Madam Chairman, I appreciate the gentleman yielding. He 
must be reading a different amendment than I put in. This amendment 
does not affect any court action brought against prison officials that 
might violate the criminals' rights or even prison conditions. There 
are other kinds of remedies that can come into play here.
  What we are just saying is do not turn felons out, and surely the 
gentleman is not for turning felons out, including nonviolent felons 
like drug dealers, out on the street just because prison conditions may 
be overcrowded and they could put prisoners in tents.
  Mr. FRANK of Massachusetts. No, because the gentleman is wrong in the 
description of his amendment. In the first place, there are nonviolent 
felons other than drug dealers. There are people who committed 
insurance fraud; there are people who cheated on their taxes, their 
State taxes. I do not say that under no circumstances should they be 
released because I think they are not the kind of danger that we are 
talking about to the community in the near term. The gentleman talked 
about murderers and rapists, but it includes nonviolent felons.
  Mr. DeLAY. I totally agree with the gentleman.
  Mr. FRANK of Massachusetts. And I am glad the gentleman from Texas 
does, and therefore there is no reason to interrupt me. Let me just say 
to my friend he should only interrupt me when he disagrees with me. He 
need not interrupt me when he agrees with me. He should just nod his 
head and we will all notice that.
  But I appreciate the agreement. So we are now in agreement that we 
are talking about nonviolent felons, and they said including people who 
may have been convicted of tax fraud or insurance fraud.
  Secondly, though, this does say no release could be a remedy because 
of conditions of confinement or. Now the gentleman says it is only 
overcrowding, but the word ``or'' apparently means something different 
to me than it does to the gentleman. ``Or'' generally means there is 
something else that is involved. It says these insurance fraud 
perpetrators cannot be released either because of conditions of 
confinement or because of the effects of actions by government 
officials on the lives of persons confined in prison.

                              {time}  1500

  In other words, if prison officials are grossly violating people's 
rights, and even people who have committed fraud have rights, as we all 
agree, even if it is not overcrowded, but if it deals with violations 
of their rights by conscious acts, one of the remedies cannot be to 
release people.
  The CHAIRMAN pro tempore (Mr. Rogers). The time of the gentleman from 
Massachusetts (Mr. Frank) has expired.
  (By unanimous consent, Mr. Frank of Massachusetts was allowed to 
proceed for 1 additional minute.)
  Mr. FRANK of Massachusetts. Mr. Chairman, I do not think where we are 
talking about conscious misbehavior that violates the rights of 
nonviolent criminals. What we are talking about is saying if you have 
prison officials who are consciously abusing the rights of nonviolent 
felons, people who have committed fraud, it has nothing to do with 
overcrowding or violence, under no circumstances should a judge be able 
to say the remedy is, if you don't stop abusing these people, we are 
going to make you let them loose. I don't think under all circumstances 
we ought to say no to that.
  Mr. DeLAY. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from Texas.
  Mr. DeLAY. Mr. Chairman, I agree with the gentleman, but disagree 
with his interpretation. I have the advantage of not having gone to law 
school. The advantage is such that nothing stops the inmates' rights to 
bring action against prison officials. All we are saying here is do not 
turn these felons out on the street.
  The CHAIRMAN pro tempore. The time of the gentleman from 
Massachusetts (Mr. Frank) has again expired.
  (By unanimous consent, Mr. Frank of Massachusetts was allowed to 
proceed for 1 additional minute.)
  Mr. FRANK of Massachusetts. Mr. Chairman, I think the issue is not 
that my friend didn't go to law school, the question is in what 
language did he not go to law school, because I am talking about 
English here; not law. What I am talking about is the phrase that says 
you cannot release nonviolent felons because of the effects of actions 
by government officials on the lives of persons confined in prison.
  In other words, nothing to do with overcrowding, but conscious abuse 
of people's rights. I do think in some cases where you have got that 
pattern of abuse, ordering the release of nonviolent felons might be 
something they may want to consider.
  For that reason, while I would have voted the amendment the gentleman 
described, I cannot vote for the gentleman's amendment as offered.
  Mr. SAM JOHNSON of Texas. Mr. Chairman, I move to strike the 
requisite number of words.
  Mr. Chairman, I happen to disagree with our previous speaker. The 
DeLay amendment really corrects a problem that I have spent most of my 
political career trying to fix.
  When I was in the Texas statehouse, I spent a lot of time speaking 
out against the antics of a judge named William Wayne Justice, a 
Federal judge who in 1980, single-handedly took control of and weakened 
the Texas prison system, which I think is a little bit out of line as 
far as our States rights policies are concerned.
  Judge Justice felt our State prisoners were cramped and ``unhappy 
with their living conditions,'' so he forced Texas to turn jails into 
country clubs so that dangerous criminals could be more comfortable. He 
even ordered Texas to provide these criminals with color television. He 
ordered that 11 percent of Texas prison beds be empty at all times, and 
mandated that cells built for two prisoners only hold one, and that 
cells built for four prisoners only hold two.
  Consequently, we have got over 5,000 empty beds in the Texas prison 
system because of a Federal judge's ruling, and that caused 
overcrowding and it caused extra expense. These mandates have done 
nothing but set criminals free, increase overcrowding, and waste 
billions of taxpayer dollars.
  I want everyone to understand it is our Texas lawmakers that were 
forced to release hardened criminals on the order of a Federal judge. 
This means that criminals have been released back on to the Texas 
streets, all because a Federal judge was more concerned about the 
comfort of criminals than about the safety of law-abiding citizens.
  This amendment will do what the Texas legislature tried to do and 
could not; stop Federal judges like William Wayne Justice from pushing 
their agenda at the expense of public safety. This language states in 
no uncertain terms that Federal judges cannot mandate early release of 
violent criminals. It also nullifies current consent decrees like the 
one inflicted on Texas by Judge Justice.
  This is common sense legislation. It is long overdue. The people of 
Texas have waited 20 years for relief from this Federal judge. Let us 
not make them wait any longer. I think it is long overdue.
  Mr. Chairman, I urge my colleagues to support this amendment, because 
it is going to make America a lot safer by keeping your violent 
criminals behind bars.
  Mr. MANZULLO. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, what the House is doing today, the House of 
Representatives, the People's House, is so unique

[[Page H2275]]

in history, and it is truly remarkable, because what we are doing today 
is we are showing that when the Constitution was drafted in 1787, that 
the men who met in Philadelphia in that year envisioned a system of the 
separation of powers, and they built into the Constitution a mechanism 
whereby one branch of government could reclaim the authority that had 
been usurped by another branch of government, and that is the genius of 
the Constitution.
  We can go back to the Declaration of Independence when Jefferson was 
asked by Benjamin Franklin, also in Philadelphia, to draft that 
document and to set forth the reasons for the establishment of this 
republic. One of the reasons that Jefferson put in the Declaration of 
Independence is that King George III had obstructed the administration 
of justice by refusing assent to laws for establishing judiciary 
powers. In other words, it would be up to the individual colonies, and 
thus a central government in a new country, to establish and define 
exactly what those judicial powers are.
  So in the Constitution, under Article III, Section 1, Congress was 
given the express power to ordain and establish inferior Federal 
courts, which includes the power of vesting them with jurisdiction, 
either limited, concurrent, or exclusive.
  In fact, in a 1943 case, it has been, perhaps, we do not know how 
many decades, we have arguments here where Congress is trying to get 
back from judiciary powers that judiciary has taken, and in the case of 
Lockerty versus Phillips, the court said that Congress has the power to 
withhold jurisdiction from courts in the exact degrees and character 
which to Congress may seem proper for the public good.
  That is what is exciting about the legislation of the gentleman from 
Texas (Mr. DeLay). It takes a look at Congress, the elected branch, the 
representative branch of government, and says we are overseeing the 
court system to bring about a change when something has happened in the 
court system that violates the public good.
  The public good to which the gentleman from Texas (Mr. DeLay) 
addresses himself is the fact that courts have overstepped their 
boundaries by releasing dangerous felons, who go out to kill, and to 
maim, and to peddle drugs to our little children, who ingest these 
drugs, and the little innocent ones, my children and children of all 
Americans, thus become susceptible to more people who the law 
enforcement people have in good faith put away, but which a Federal 
judge says they should be out.
  So we are here today because the Constitution compels us to do so. It 
would do no good for me to reiterate the various travesties that have 
taken place in America because of what the Federal courts have done. 
But let us look upon this day in this Congress as being a responsible 
Congress and telling the American people that the courts have gone too 
far, and that Congress is exercising the jurisdiction and the authority 
envisioned by the founders of this republic in saying we are going to 
correct what is wrong with the court system.
  Mr. FOLEY. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, let me strongly support the efforts of the majority 
whip, the gentleman from Texas (Mr. DeLay), because this amendment goes 
right to the heart of a horrible situation we in Florida have faced.
  In 1993, the Florida Department of Corrections reported that between 
January 1, 1987, and October 10, 1991, some 127,486 prisoners were 
released early from Florida prisons. Within a few years of their early 
release, they committed over 15,000 violent and property crimes, 
including 346 murders and 185 sex offenses.
  Florida tried to stop the early release program last year, the ``gain 
time'' provision, which was created because of prison overcrowding. 
But, whoa, the judges said, the courts would not allow them to change 
it.
  The courts suggested that since it was given in advance to create or 
vacate prison space, that it was now part of their sentence. It did not 
say when they were sentenced that they were entitled to it, but because 
it was a mechanism, a management tool created by the legislature, that 
it had to apply to every person in prison, no matter what crime they 
committed, whether it was bounced checks, murder or rape.
  Now, who is paying for this type of thinking? Who pays for this type 
of thinking in our society? Let me give you a few examples.
  One is a 21-year-old convicted burglar who got out of prison last 
October on early release. A month later he was charged with kidnapping 
and murdering a 78-year-old woman in Avon Park near my district. He 
abducted her from her home, forced her into the trunk of her car, and 
killed her in an orange grove about 20 miles away.
  Then, there is the 30-year-old man jailed in 1989 on grand theft and 
armed burglary charges, who was released early in 1992 because of 
prison crowding. Four years later he was charged with murdering the 
owner of a convenience store in West Palm Beach, Florida, part of which 
I represent.


                ANNOUNCEMENT BY THE CHAIRMAN PRO TEMPORE

  The CHAIRMAN pro tempore. Our guests in the gallery will be advised 
they are guests of the House, but must not express approval or 
disapproval to interfere with the activities of the House.
  Mr. FOLEY. Mr. Chairman, last month a 30-year-old drifter, jailed in 
1986 for kidnapping and brutally beating a British tourist in 
Hollywood, Florida, but released early in 1986, was charged with first 
degree murder of a teenager after her partially mutilated corpse was 
found in his bathtub in Miami Beach.
  In 1991, in St. Lucie County, which I represent, a Fort Pierce police 
officer, Danny Parrish, was murdered by an ex-convict who had been 
released after serving less than a third of his prison term for auto 
burglary. Officer Parrish stopped him for driving the wrong way on a 
one-way street. The ex-convict, who admitted later he did not want to 
go back to prison for violating probation, disarmed Officer Parrish and 
killed him with his own gun.
  Now, when are we in America going to wake up and recognize the rights 
of victims? I have heard constantly about judges stepping in and 
allowing prisoners to smoke in prison, prisoners being allowed video 
machines so they can watch TV, prisoners being given weight rooms so 
they can exercise and feel comfortable and good about themselves. And 
the same judges then say because it is a little crowded, we should let 
these people out early.
  So then ultimately, after serving only a third of the time they have 
been sentenced to, they maim, murder, kill our families and our 
children, and society pays greatly for these acts. Society pays more 
for the violence on our street because of early release than we could 
ever pay for the proper construction of prison facilities.
  So I urge my colleagues to look very seriously at this amendment. It 
is not defeating the judges' power; it is not usurping judicial power. 
It is asserting, first and foremost, that victims and their families 
should be given their rights first, not the criminal; that when you are 
sentenced to prison, it should mean something. When you are given 10 
years, it should be 10 years, not 2 years.
  When our young people look at the fact that people are being 
sentenced for 10 years, they should know it is serious. But when you 
commit a murder and are let out after 3 years of a 10-year sentence; 
when you are convicted of a crime, and told ``don't worry about it, it 
is only a year;'' in a recent case where a young girl killed her child, 
I understand she may get 2\1/2\ years in prison. What a punishment.
  What does it say to society, the value we place on life. What does it 
say about the law of the land? What does it say to the law-abiding 
citizen? You can go ahead and get away with it, because a judge is 
going to be worried about your comfort in prison; that he will let you 
out on the street to maim, murder and kill once again?

                              {time}  1515

  I know judges do not do this because they do not care about our 
communities, but Congress has to step into the debate, protect the 
communities we represent, all 435 of them, and do our best to suggest 
that if a prisoner commits a crime, if a person victimizes another 
human being, if a person violates a human being, if a person murders 
someone else, that that person

[[Page H2276]]

should fulfill the full terms of the sentence meted out by the courts, 
should not be granted special benefits, should not be given game time, 
and should be treated like the criminals that they are.
  I urge the support of the fine amendment of the gentleman from Texas 
(Mr. DeLay).


                Announcement by the Chairman Pro Tempore

  The CHAIRMAN pro tempore. The Chair will remind all persons in the 
gallery that they are here as guests of the House, and that any 
manifestation of approval or disapproval of proceedings is in violation 
of the rules of the House.
  Mr. WATT of North Carolina. Mr. Chairman, I move to strike the 
requisite number of words.
  Mr. Chairman, this is a very, very difficult issue to debate, because 
when one postulates the rights of citizens, innocent citizens, against 
folks who have been sentenced to prison who are released, whether they 
are released for misdemeanors or felonies or whatever reason, because 
of prison overcrowding and conditions in prisons, it always seems like 
you are taking sides with the prisoners, as opposed to taking sides 
with the innocent people in the street.
  The gentleman from Florida (Mr. Foley) obviously makes a very, very 
powerful argument. But an amendment which basically says we are going 
to go back retroactively and undo existing consent orders that have 
been entered into, that retroactively says we are going to undo orders 
that courts have entered in these cases, or even an amendment which, 
looking forward, says that even though the Constitution might, and we 
as a body of people in our country believe that nobody, no individual, 
ought to be put into conditions where they are subjected to rape or 
disease or whatever by overcrowding or failure of supervision, we 
cannot enforce that order to protect those people, is an amendment 
which, in my opinion, goes too far.
  That is what this amendment does. It undoes prior consent orders. It 
undermines prior orders, whether they are consent orders or not. Also, 
it effectively says that where there is a constitutional violation 
there really is no remedy for that violation, because we are not going 
to provide a constructive remedy for somebody who is put in inhumane, 
overcrowded conditions.
  So while I clearly am uncomfortable, and if anybody believes that I 
am siding with prisoners over victims in the street, I am uncomfortable 
being in that position, but I think this amendment goes too far.
  Mr. DeLAY. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from Texas.
  Mr. DeLAY. Mr. Chairman, I appreciate the gentleman yielding. I 
understand the struggle that the gentleman is going through. I 
appreciate that.
  I just want to remind the gentleman that in 1995 we passed a law, 
signed by this President, dictating to these judges that they should 
vacate these consent decrees if they have no further constitutional 
grounds, and these judges have found loopholes by which they can 
continue.
  Mr. WATT of North Carolina. Let me stop the gentleman in the middle 
of his sentence, because that is a big ``if,'' if there are no further 
constitutional grounds. The ones that I am talking about are where 
there is a constitutional ground. And what this amendment does is say 
you cannot have a remedy where there is a constitutional basis for the 
order. So to just kind of gloss over that big ``if'' in the gentleman's 
sentence is a serious matter.
  The CHAIRMAN pro tempore. The time of the gentleman from North 
Carolina (Mr. Watt) has expired.
  (On request of Mr. Delay, and by unanimous consent, Mr. Watt of North 
Carolina was allowed to proceed for 1 additional minute.)
  Mr. DeLAY. Mr. Chairman, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from Texas.
  Mr. DeLAY. Mr. Chairman, first of all, I am not, in my amendment, 
stopping any other remedies, any other constitutional remedies or the 
rights of inmates that are being mistreated, overcrowded, or any other 
prison condition. That is not my amendment.
  My amendment basically is saying to judges, stop finding loopholes to 
continue your consent decrees, and we are going to eliminate the ``if'' 
part about early release of prisoners. We are not going to put these 
criminals back on the streets. They can have all the other remedies.
  Mr. WATT of North Carolina. Mr. Chairman, if in fact the amendment 
was nearly as gentle and kind as the gentleman has portrayed it, I 
think I could get there with him, but that is not what the language of 
this amendment says. It says, we are undoing prior consent orders, we 
are undoing prior orders, and we are making it impossible to address a 
constitutional violation because there is no remedy for it. It is that 
that I have serious concerns about.
  Ms. GRANGER. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I rise today on behalf of families, victims and law-
abiding citizens everywhere to support the Judicial Reform Act of 1998, 
and particularly to support the amendment offered by my good friend, 
the gentleman from Texas (Mr. DeLay).
  I do so because I believe there is a time in the life of every 
problem when it is large enough to see and yet small enough to solve. 
The problem of judicial activism is one which we can see and we can 
also solve, if only we have the commitment and the courage to make it 
right.
  According to the Bureau of Judicial Statistics, every day this year 
14 people will be murdered, 48 women raped, and 570 robbed by criminals 
who have already been caught, convicted, and returned to the streets on 
probation or early parole.
  Mr. Chairman, this is more than a crisis, this is the crime. I 
believe the first order of our legal system is to protect the innocent, 
and one way we can do this is to punish the guilty. But we cannot 
protect the innocent or punish the guilty by putting criminals back on 
the streets. Yet that is exactly what some judges are doing.
  Under the guise of legal apologetics, many judges are giving felons 
and drug dealers get-out-of-jail-free cards. For example, a U.S. 
district judge in Philadelphia imposed a prison cap that had the effect 
of freeing scores of felons and drug dealers who are waiting trial in 
the prisons. In fact, 600 prisoners a week were released for over 1 
year.
  What did they do when they got a new lease on life? They committed 79 
murders, 959 robberies, 2,215 drug-related crimes, 90 rapes, and over 
1,100 assaults. This type of judicial activism is crazy, and it is 
changing once we pass the DeLay amendment.
  Mr. Chairman, the American people want criminals to serve the 
sentences they are given. They do not want some judge overruling the 
law, the prosecutors who got them the conviction, or the jurors who 
sentenced them.
  Mr. Chairman, let us not confuse our wants with our needs. We all 
want to give everyone a second chance, but we absolutely need to ensure 
that crime does not pay. I urge my colleagues to support the DeLay 
amendment. It is simple, it is smart, and it is a solution.
  Mr. MURTHA. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I agreed to cosponsor this amendment with the gentleman 
from Texas (Mr. DeLay) because I felt it was so important for us to 
send a message to the court system and to our judicial system that, 
when a person is sentenced, that person should spend that appropriate 
time in prison.
  Now, I realize there may be some deficiencies in this amendment. I 
realize if this goes to conference that maybe a few things ought to be 
changed. But I think one of the reasons that we do not have as much 
crime as we had a few years ago is because people are staying in jail 
longer. We put mandatory sentences in.
  I worried about mandatory sentences, but the results are the crime 
rate has dropped dramatically for violent crime throughout the country, 
and I think it is important for all of us to think about the victims of 
the crime. One way to make sure that they are separated is to keep them 
in prison for the time.
  They spend a lot of time in thinking about how long the sentences 
ought to be. If we put them out, drug dealers, a person that commits a 
violent crime, out on the street prematurely, there is no question in 
my mind the crime rate will start to go back up again.

[[Page H2277]]

  So I would urge Members to support this amendment and to vote 
overwhelmingly to send a message that we do not want people, just 
because of a technicality, overcrowding, to be out in the street before 
their time that they have spent in prison.
  Mr. DOOLITTLE. Mr. Chairman, I move to strike the requisite number of 
words.
  (Mr. DOOLITTLE asked and was given permission to revise and extend 
his remarks.)
  Mr. DOOLITTLE. Mr. Chairman, I strongly support the DeLay amendment. 
I think it is a great amendment, and I hope that it survives unscathed 
through both Houses of the Congress.
  This deals with the most fundamental obligation of government, the 
reason we pay all of the huge amount of taxes that we are having to pay 
these days. That is, it is the job of government to restrain men from 
injuring one another, to quote Thomas Jefferson.
  It is just unconscionable that these liberal judges, unelected by the 
people but in office for life, have taken it upon themselves, in some 
cases, to inflict this kind of injury upon a community. Think of the 
thousands and thousands of lives that have been ruined, in many cases, 
or severely impacted in others, by the types of crimes that have been 
committed.
  We did a study in our State legislature years ago, and it was a 
pretty established fact, as a result of the study, that two-thirds of 
the forcible-sex felonies are committed by repeat offenders, so that by 
dealing with this population and incarcerating them for long periods of 
time, we would dramatically reduce this type of crime. Indeed, that has 
been the case.
  In California and other States where they have had mandatory 
sentences and where they have long terms, we have spent an awful lot of 
resources in California locking people up, and we have overcrowded 
those prisons as much as we could, and I am glad that we have, because 
it has made our streets safer.
  We have now about 130,000 people incarcerated in the State of 
California alone. Look at our crime rates. They have been dropping 
dramatically. So taking off the streets this kind of offender was 
exactly the right thing to do.
  Yet to have some isolated, arrogant, liberal, unelected district 
court judge turning these people loose because of some benighted belief 
in upholding some prisoner's constitutional rights is totally wrong.
  Occasionally, there will be a conflict between the constitutional 
right of the prisoner and between the right of the public not to have 
dangerous criminals out in the street. The amendment of the gentleman 
from Texas (Mr. DeLay) simply says, Judge, do not make your remedy 
letting them go. You have other remedies. One of them is not to say, 
let these dangerous people back out on the street.
  The public overwhelmingly supports the policy reflected in the DeLay 
amendment. It is long overdue. I strongly urge its adoption.
  Mr. PACKARD. Mr. Chairman, I would like to voice my support for 
Congressman Tom DeLay's (R-TX) amendment to the Judicial Reform Act, 
which we will be voting upon shortly. Mr. DeLay's amendment addresses 
an issue of growing concern--the early release of convicted criminals 
due to overcrowding in prisons.
  By this time we are all well aware of repercussions related to 
judicial activism. Mr. DeLay's amendment plays an important role in 
curbing this practice by targeting federal judges who order the release 
of persons convicted of violent or drug related crimes because of 
prison conditions. Uncomfortable prison conditions are no excuse for 
turning dangerous criminals out onto our streets.
  Mr. Chairman, I hope that my colleagues will join me in voting in 
favor of the Judicial Reform Act and the DeLay Amendment.
  The CHAIRMAN pro tempore. The question is on the amendment offered by 
the gentleman from Texas (Mr. DeLay).
  The question was taken; and the Chairman pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. DeLAY. Mr. Chairman, I demand a recorded vote.
  A recorded vote was ordered.
  The CHAIRMAN pro tempore. Pursuant to House Resolution 408, the 
minimum time for electronic voting on the Lofgren amendment, if 
ordered, without intervening business, will be 5 minutes.
  The vote was taken by electronic device, and there were--ayes 367, 
noes 52, not voting 13, as follows:

                             [Roll No. 105]

                               AYES--367

     Abercrombie
     Ackerman
     Aderholt
     Allen
     Andrews
     Archer
     Armey
     Bachus
     Baesler
     Baker
     Baldacci
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Becerra
     Bentsen
     Bereuter
     Berman
     Berry
     Bilbray
     Bilirakis
     Bishop
     Blagojevich
     Bliley
     Blumenauer
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Borski
     Boswell
     Boucher
     Boyd
     Brady
     Brown (FL)
     Brown (OH)
     Bryant
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Cannon
     Capps
     Cardin
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Clayton
     Clement
     Coble
     Coburn
     Collins
     Combest
     Condit
     Cook
     Cooksey
     Costello
     Cox
     Coyne
     Cramer
     Crane
     Crapo
     Cubin
     Cummings
     Cunningham
     Danner
     Davis (FL)
     Davis (VA)
     Deal
     DeFazio
     DeLauro
     DeLay
     Deutsch
     Diaz-Balart
     Dickey
     Dicks
     Dingell
     Doggett
     Dooley
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     Engel
     English
     Ensign
     Eshoo
     Etheridge
     Everett
     Ewing
     Farr
     Fazio
     Foley
     Forbes
     Ford
     Fossella
     Fowler
     Fox
     Franks (NJ)
     Frelinghuysen
     Frost
     Gallegly
     Ganske
     Gejdenson
     Gekas
     Gephardt
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goode
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Granger
     Green
     Greenwood
     Gutierrez
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hamilton
     Hansen
     Harman
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Hefner
     Herger
     Hill
     Hilleary
     Hinojosa
     Hobson
     Hoekstra
     Holden
     Hooley
     Horn
     Hostettler
     Houghton
     Hoyer
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Inglis
     Jefferson
     Jenkins
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, E. B.
     Johnson, Sam
     Jones
     Kanjorski
     Kaptur
     Kasich
     Kelly
     Kennelly
     Kildee
     Kim
     Kind (WI)
     King (NY)
     Kingston
     Kleczka
     Klink
     Klug
     Knollenberg
     Kolbe
     Kucinich
     LaFalce
     LaHood
     Lampson
     Lantos
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Levin
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     Livingston
     LoBiondo
     Lofgren
     Lowey
     Lucas
     Luther
     Maloney (CT)
     Maloney (NY)
     Manton
     Manzullo
     Markey
     Mascara
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McCrery
     McDade
     McGovern
     McHale
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     McKinney
     McNulty
     Menendez
     Metcalf
     Mica
     Minge
     Mink
     Moakley
     Mollohan
     Moran (KS)
     Moran (VA)
     Morella
     Murtha
     Myrick
     Nadler
     Neal
     Nethercutt
     Neumann
     Ney
     Northup
     Norwood
     Nussle
     Ortiz
     Oxley
     Packard
     Pallone
     Pappas
     Parker
     Pascrell
     Pastor
     Paul
     Pease
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pickett
     Pitts
     Pombo
     Pomeroy
     Porter
     Portman
     Poshard
     Price (NC)
     Pryce (OH)
     Quinn
     Radanovich
     Rahall
     Ramstad
     Redmond
     Regula
     Reyes
     Riggs
     Riley
     Rivers
     Rodriguez
     Roemer
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Rothman
     Roukema
     Roybal-Allard
     Royce
     Ryun
     Salmon
     Sanchez
     Sandlin
     Sanford
     Sawyer
     Saxton
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Schumer
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherman
     Shimkus
     Shuster
     Sisisky
     Skeen
     Skelton
     Slaughter
     Smith (MI)
     Smith (NJ)
     Smith (OR)
     Smith (TX)
     Smith, Adam
     Smith, Linda
     Snowbarger
     Snyder
     Solomon
     Souder
     Spence
     Stabenow
     Stearns
     Stenholm
     Strickland
     Stump
     Stupak
     Sununu
     Talent
     Tauscher
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Thomas
     Thornberry
     Thune
     Thurman
     Tiahrt
     Torres
     Traficant
     Turner
     Upton
     Vento
     Visclosky
     Walsh
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Wexler
     Weygand
     White
     Whitfield
     Wicker
     Wise
     Wolf
     Woolsey
     Wynn
     Young (AK)
     Young (FL)

                                NOES--52

     Barrett (WI)
     Bonior
     Brown (CA)
     Campbell
     Carson
     Clyburn
     Conyers
     Davis (IL)
     DeGette
     Delahunt
     Evans
     Fawell
     Filner
     Frank (MA)
     Furse
     Hilliard
     Hinchey
     Jackson (IL)
     Jackson-Lee (TX)
     Kennedy (MA)
     Kennedy (RI)
     Kilpatrick
     Lee
     Lewis (GA)
     Martinez
     McDermott
     Meehan
     Meeks (NY)
     Millender-McDonald
     Miller (CA)
     Oberstar
     Olver
     Owens
     Payne
     Pelosi
     Rangel
     Rush

[[Page H2278]]


     Sabo
     Sanders
     Scott
     Serrano
     Skaggs
     Stark
     Stokes
     Thompson
     Tierney
     Towns
     Velazquez
     Waters
     Watt (NC)
     Waxman
     Yates

                             NOT VOTING--13

     Bateman
     Clay
     Dixon
     Fattah
     Gonzalez
     Hastings (FL)
     Istook
     Meek (FL)
     Miller (FL)
     Obey
     Paxon
     Spratt
     Tanner

                              {time}  1552

  Messrs. BARRETT of Wisconsin, T0WNS, MILLER of California, SKAGGS, 
and TIERNEY changed their vote from ``aye'' to ``no.''
  Messrs. RODRIGUEZ, JEFFERSON, SHAW, REYES, and FORD changed their 
vote from ``no'' to ``aye.''
  So the amendment was agreed to.
  The result of the vote was announced as above recorded.


                    Amendment Offered by Ms. Lofgren

  The CHAIRMAN pro tempore (Mr. Rogers). The pending business is the 
demand for a recorded vote on the amendment offered by the gentlewoman 
from California (Ms. Lofgren) on which further proceedings were 
postponed and on which the noes prevailed by voice vote.
  The Clerk will designate the amendment.
  The Clerk designated the amendment.


                             Recorded Vote

  The CHAIRMAN pro tempore. A recorded vote has been demanded.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 162, 
noes 256, not voting 14, as follows:

                             [Roll No 106]

                               AYES--162

     Abercrombie
     Ackerman
     Andrews
     Baesler
     Baldacci
     Barcia
     Becerra
     Berman
     Berry
     Bishop
     Blagojevich
     Blumenauer
     Bonior
     Borski
     Boucher
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Campbell
     Capps
     Carson
     Clayton
     Clement
     Clyburn
     Condit
     Conyers
     Costello
     Coyne
     Cummings
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Diaz-Balart
     Dooley
     Doyle
     Edwards
     Engel
     Eshoo
     Etheridge
     Evans
     Farr
     Fazio
     Filner
     Ford
     Fox
     Frost
     Furse
     Gejdenson
     Gephardt
     Gordon
     Green
     Gutierrez
     Hall (OH)
     Harman
     Hefner
     Hilliard
     Hinchey
     Hinojosa
     Hooley
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (WI)
     Johnson, E. B.
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kilpatrick
     Kind (WI)
     King (NY)
     Klink
     LaFalce
     Lampson
     Lantos
     Leach
     Lee
     Lewis (GA)
     LoBiondo
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy (NY)
     McDade
     McDermott
     McKinney
     McNulty
     Meehan
     Meeks (NY)
     Menendez
     Millender-McDonald
     Miller (CA)
     Minge
     Mink
     Mollohan
     Murtha
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pascrell
     Pastor
     Paul
     Payne
     Pelosi
     Peterson (MN)
     Pomeroy
     Poshard
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rodriguez
     Rothman
     Roybal-Allard
     Rush
     Sabo
     Sanchez
     Sanders
     Sandlin
     Sanford
     Schumer
     Serrano
     Skelton
     Slaughter
     Stabenow
     Stark
     Stokes
     Strickland
     Stupak
     Tauscher
     Taylor (MS)
     Thompson
     Thurman
     Torres
     Traficant
     Velazquez
     Vento
     Visclosky
     Waters
     Watt (NC)
     Waxman
     Weller
     Weygand
     Woolsey
     Wynn
     Yates

                               NOES--256

     Aderholt
     Allen
     Archer
     Armey
     Bachus
     Baker
     Ballenger
     Barr
     Barrett (NE)
     Barrett (WI)
     Bartlett
     Barton
     Bass
     Bentsen
     Bereuter
     Bilbray
     Bilirakis
     Bliley
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boswell
     Boyd
     Brady
     Bryant
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Canady
     Cannon
     Cardin
     Castle
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Coble
     Coburn
     Collins
     Combest
     Cook
     Cooksey
     Cox
     Cramer
     Crane
     Crapo
     Cubin
     Cunningham
     Danner
     Davis (VA)
     Deal
     DeLay
     Dickey
     Dicks
     Dingell
     Doggett
     Doolittle
     Dreier
     Duncan
     Dunn
     Ehlers
     Ehrlich
     Emerson
     English
     Ensign
     Everett
     Ewing
     Fawell
     Foley
     Forbes
     Fossella
     Fowler
     Frank (MA)
     Franks (NJ)
     Frelinghuysen
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goode
     Goodlatte
     Goodling
     Goss
     Graham
     Granger
     Greenwood
     Gutknecht
     Hall (TX)
     Hamilton
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill
     Hilleary
     Hobson
     Hoekstra
     Holden
     Horn
     Hostettler
     Houghton
     Hoyer
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Inglis
     Jenkins
     John
     Johnson (CT)
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     Kingston
     Kleczka
     Klug
     Knollenberg
     Kolbe
     Kucinich
     LaHood
     Largent
     Latham
     LaTourette
     Lazio
     Levin
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     Livingston
     Lucas
     Manton
     Manzullo
     McCarthy (MO)
     McCollum
     McCrery
     McGovern
     McHale
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     Metcalf
     Mica
     Moakley
     Moran (KS)
     Moran (VA)
     Morella
     Myrick
     Nethercutt
     Neumann
     Ney
     Northup
     Norwood
     Nussle
     Oxley
     Packard
     Pappas
     Parker
     Pease
     Peterson (PA)
     Petri
     Pickering
     Pickett
     Pitts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Quinn
     Radanovich
     Ramstad
     Redmond
     Regula
     Riggs
     Riley
     Rivers
     Roemer
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Roukema
     Royce
     Ryun
     Salmon
     Sawyer
     Saxton
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Scott
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Sherman
     Shimkus
     Shuster
     Sisisky
     Skaggs
     Skeen
     Smith (MI)
     Smith (NJ)
     Smith (OR)
     Smith (TX)
     Smith, Adam
     Smith, Linda
     Snyder
     Solomon
     Souder
     Spence
     Stearns
     Stenholm
     Stump
     Sununu
     Talent
     Tauzin
     Taylor (NC)
     Thomas
     Thornberry
     Thune
     Tiahrt
     Tierney
     Towns
     Turner
     Upton
     Walsh
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Wexler
     White
     Whitfield
     Wicker
     Wise
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--14

     Bateman
     Clay
     Davis (FL)
     Dixon
     Fattah
     Gonzalez
     Hastings (FL)
     Istook
     Meek (FL)
     Miller (FL)
     Paxon
     Snowbarger
     Spratt
     Tanner

                              {time}  1603

  Mr. SAWYER changed his vote from ``aye'' to ``no.''
  Mr. ABERCROMBIE changed his vote from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.


                          personal explanation

  Mr. DAVIS of Florida. Mr. Chairman, during roll call vote 106, I was 
unavoidably detained. Had I been present, I would have voted ``aye'' on 
the amendment offered by the gentlewoman from California (Ms. Lofgren).
  Mr. HYDE. Mr. Chairman, I move to strike the last word.
  (Mr. HYDE asked and was given permission to revise and extend his 
remarks.)
  Mr. Chairman, at this stage, I was about to offer an amendment. I 
will not offer the amendment, but I think it is important to explain 
what kind of an amendment it was and why I am not going to offer it.
  Mr. Chairman, there are not many of us, a narrow band of Members, but 
there are some on both sides of the aisle who feel that we mistreat in 
terms of cost-of-living allowances our Federal judiciary. Now, that is 
a poisonous subject in some quarters, because judge bashing is a 
universal sport. But it is a fact, of all the government employees in 
the galaxy, the only group that does not get an automatic cost-of-
living increase is the Federal judiciary.
  There is a law, it is called Section 140, that requires a specific 
vote before any Federal judge gets a cost-of-living allowance. Not a 
pay raise, a cost-of-living allowance. Even ourselves get an automatic 
cost-of-living allowance. Under the law, it can be reversed by vote. 
And, of course, sometimes we succumb to the penurious complaints of 
Members and deny ourselves a pay raise. But we must take affirmative 
action to do that.
  Not so with the Federal judges. The only way they can get a cost-of-
living allowance is by us voting them one. I think isolating Federal 
judges from all of the other employees in the Federal Government is 
wrong, it is mean-spirited, it is unfair. And I do believe the quality 
of justice, which is not of the highest I hasten to add, depends on the 
caliber of the people administering that justice; and that is the 
judges, male and female, throughout the land.
  We penalize them because they are Federal judges and we are mad at 
this judge or that judge for a dumb decision and, so, we are going to 
have the whole system rigged so they are different from everybody else. 
I think that is unfair.

[[Page H2279]]

  Now, I have proposed in this bill a judicial reform bill to remove 
the requirement that Federal judges could not get a cost-of-living 
increase without a vote to remove that. I learned very late in the day 
before I was to appear before the Committee on Rules that the rule that 
would be proposed would be self-executing and would delete Section 9 of 
my bill, which was my amendment to provide for treating Federal judges 
like everybody else on cost-of-living allowances. I was upset at that 
and not having any notification.
  But, in any event, I was informed that the reason my bill was going 
to have that part deleted was that I was creating an entitlement and we 
do not create entitlements that way. Well, there are ways to handle 
that, and one is to subject this change to appropriated funds. That 
would cure that. But nobody was interested in helping me do that in the 
rule. And I was told if I offered an amendment to that effect on the 
floor, even though this is an open amendment, that this would not be 
germane.
  Well, we took steps to see that it would be germane by redrafting it. 
Certain amendments were adopted that broadened the purview of the 
statute. But that encountered serious resistance. And so, the upshot of 
all of this folderol about people nobody cares a great deal about, the 
Federal judiciary, treating them equally with everybody else, although 
we pretend to support equal justice for all, the upshot of it is, if I 
persist in my efforts, the bill will go down. And I do not want the 
bill to go down.
  I think this is a good bill. There are some good things in this. And, 
therefore, I have agreed not to offer my amendment, to bite my lip, and 
to take the unfair, in my judgment, treatment of an issue that deserves 
debate on the floor in the vote.
  I understand why people do not want this change to occur, because it 
helps us get a pay raise if we can say the judges are being held back, 
too. But I do not see why economic politics should deny one group of 
Federal employees, with all their warts and their flaws, equal 
treatment.
  The CHAIRMAN pro tempore (Mr. Rogers). The time of the gentleman from 
Illinois (Mr. Hyde) has expired.
  (By unanimous consent, Mr. Hyde was allowed to proceed for 5 
additional minutes.)
  Mr. HYDE. Mr. Chairman, I yield to the gentleman from Michigan (Mr. 
Conyers), the ranking member.
  (Mr. CONYERS asked and was given permission to revise and extend his 
remarks.)
  Mr. CONYERS. Mr. Chairman, I thank the chairman of the Judiciary for 
yielding.
  I join my colleague in his sentiments and point out that this is 
going to take a considerable amount of work to accomplish this 
delinking. But I think the time has come that judges, as a governmental 
class, should be able to be entitled to these very modest cost-of-
living increases that the rest of people that serve in the government 
enjoy. I appreciate the efforts of the gentleman.
  Mr. HYDE. Mr. Chairman, I yield to the gentleman from Maryland (Mr. 
Hoyer).
  Mr. HOYER. Mr. Chairman, I thank the distinguished member of the 
Committee on the Judiciary for yielding.
  There are not many, there are some but not many, who have stood on 
this floor and either voted for or advocated for the pay raises not 
only for Federal employees but for Members of Congress than I.
  I, however, in this instance, although understanding the concern that 
some have with respect to impact on Members' pay, want to strongly join 
the chairman of the committee in his comments with respect to 
delinking.
  Very frankly, my friends, this has to do with whether or not the 
Congress of the United States has either the courage or judgment to 
stand and do what I think the overwhelming majority voted to do back in 
1989, and that is take a cost-of-living adjustment, not a pay raise, 
but a cost-of-living adjustment to keep pay even. That is what a cost-
of-living adjustment does. It keeps pay even.
  Now, if we think we ought not to do that for ourselves, what the 
Chairman is saying, we ought not to tie in others to that same 
position, which in my opinion relates not to the equity of pay but 
relates all to politics. I understand that. I criticize no one for 
that. But I was going to support the Chairman's inclusion of the 
delinking in the bill.
  Many on my side have not have done that, Mr. Chairman, as my 
colleagues know. And, frankly, some of my strongest allies on the other 
side on the pay issue would not have supported it. But I think it is 
wrong that we continue to keep the judiciary tied to the political 
vagaries of what this body is willing to do for itself.
  Mr. HYDE. Mr. Chairman, I yield to the gentlewoman from Texas (Ms. 
Jackson-Lee).
  Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the Chairman for 
yielding.
  I would like to add my concern and willingness to go the extra mile 
on what I think is an important and crucial issue: Are we going to have 
the best judicial branch this Nation can afford? And I, too, supported 
the effort of the Chairman to reflect on our appreciation and respect 
for the judiciary and the difficulty of their job and position and, 
likewise, as a newer Member, think that we can defend COLAs no matter 
who it happens to before, unfortunately, politics do get in the way.
  Just about a year ago, one of my senior judges, Judge Norman Black, 
who, unfortunately, passed away, came and made an eloquent argument, 
not for self, but for the standing and the quality and the excellence 
of the judiciary. How can we do any less than to compensate them for 
this high calling?
  So I would just offer to work with the Chairman. I appreciate his 
position in terms of the overall bill.

                              {time}  1615

  But I do believe that we need to have further discussions on this 
issue and work through it so that we can have the quality of the 
judiciary that we would like to have and ensure that there is adequate 
compensation out of the way of the politics.
  Mr. HYDE. Mr. Chairman, I yield to the gentleman from Massachusetts 
(Mr. Frank).
  Mr. FRANK of Massachusetts. Mr. Chairman, I rise to offer my support 
for the amendment that will now not be offered. But I want to express 
my admiration to the gentleman from Illinois. Taking the position he is 
taking so vigorously is not an easy one around here. But I hope Members 
will listen to what he said, separate out views that Members may have 
on particular judges and particular decisions from the more important 
question.
  We all agree that there is going to be Federal law. We agree that 
there is going to be Federal criminal law and Federal civil law. We 
certainly all agree, I hope, that we want our constituents well served 
by thoughtful, intelligent people.
  We want people who are at the top of the profession in temperament, 
and intelligence, and ability. Paying them as little as we do is a 
mistake. We are not going to get justice on the cheap that way, and we 
do not serve well this cause of justice for our constituents.
  The CHAIRMAN pro tempore (Mr. Rogers). The time of the gentleman from 
Illinois (Mr. Hyde) has expired.
  (On request of Mr. Frank of Massachusetts, and by unanimous consent, 
Mr. Hyde was allowed to proceed for 1 additional minute.)
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield to 
me?
  Mr. HYDE. I yield to the gentleman from Massachusetts, certainly.
  Mr. FRANK of Massachusetts. We do not serve the cause of justice by 
confusing unhappiness with particular judges and particular decisions 
with the functions of the judiciary. The gentleman is making a valiant 
effort to protect that function. I hope that in some other context 
those efforts are more successful. I regret, although I understand 
fully, the situation in which he found himself, that we will not be 
able to vote on it now.
  I will say, as an aside, this does make it an easier decision for me 
because, had the gentleman offered the amendment and had it been 
succeeded, I would have been conflicted, but now I can vote against 
what I think is kind of a silly bill without any problem.


                    Amendment Offered By Mr. Conyers

  Mr. CONYERS. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:


[[Page H2280]]


       Amendment offered by Mr. Conyers:
       Add the following at the end:

     SEC. 12. FOREIGN JURISDICTION AND PROCESS.

       (a) In General.--Chapter 113 of title 28, United States 
     Code, is amended by adding at the end the following new 
     section:

     ``Sec. 1697. Foreign jurisdiction; service of process; 
       compliance with rules of discovery

       ``(a) Foreign Jurisdiction and Process.--In any civil 
     action for harm sustained in the United States, that is 
     brought in a Federal court against a defendant located 
     outside the United States, the court in which the action is 
     brought shall have jurisdiction over such defendant if the 
     defendant knew or reasonably should have known that its 
     conduct would cause harm in the United States. Process in 
     such civil action may be served wherever the defendant is 
     located, has an agent, or transacts business.
       ``(b) Compliance With Rules of Discovery.--In any action 
     described in subsection (a), any party who is a citizen or 
     national of a foreign country shall comply with the rules 
     governing the conduct of discovery in the same manner and to 
     the same extent as a party that is a citizen of the United 
     States, except that the deposition of a person who is a 
     citizen or national of a foreign country may be taken only by 
     leave of the court on such terms as the court prescribes.''.
       (b) Conforming Amendment.--The table of sections for 
     chapter 113 of title 28, United States Code, is amended by 
     adding at the end the following new item:

``1697. Foreign jurisdiction; service of process; compliance with rules 
              of discovery.''.

  Mr. CONYERS (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN pro tempore. Is there objection to the request from the 
gentleman of Michigan?
  There was no objection.
  Mr. CONYERS. Mr. Chairman, I used to say that my amendment is simple 
and should be noncontroversial, but I have stopped doing that lately. 
But this is not a complicated amendment. It changes title 28 to provide 
for service of process against actions brought against defendant 
corporations located outside of the United States. It is an amendment 
that has succeeded before on a couple of occasions, once in a 
bipartisan vote, and the other in a motion to instruct conferees.
  It responds to the problem of service to a foreign corporation by 
creating a nationwide contacts test whenever a foreign defendant is 
sued in Federal court if it knew or reasonably should have known that 
its conduct would cause harm in this country.
  This is not a new test. It has been repeatedly upheld by our courts 
and is in the law already and for other activities. It is similar to 
the standard adopted last Congress when we amended the Foreign Service 
Immunities Act to permit actions against terrorist States to proceed in 
this country.
  Secondly, we provide for worldwide service of process. Presently, a 
big problem with service of process is that each nation requires 
different methods for process. A uniform worldwide service will fix 
this problem, and is consistent with our other laws like the Clayton 
Act, and the securities laws permitting service wherever the defendant 
can be found.
  Finally, my amendment ensures that foreign persons are subject to the 
same rules of discovery as our own citizens and corporations when they 
are sued for wrongdoing. Currently, Americans are subject to a 
cumbersome discovery process which requires involvement of foreign 
courts and is subject to foreign laws that are designed to thwart 
discovery process.
  Let us continue to create a level playing field so that our American 
companies are not, in fact, disadvantaged by foreign competitors. It 
will also help ensure justice for U.S. citizens that might be harmed by 
a foreign product.
  When a foreign automobile is defective, or when fruit imported from 
out of the country causes widespread disease, or when a halogen lamp 
made overseas but used in this country explodes, we need to make sure 
that there is some form of accountability, whether the defendant is 
located within the United States or not.
  So I urge, again, for the favorable consideration of the amendment.
  Mr. CANADY of Florida. Mr. Chairman, I move to strike the last word.
  Mr. Chairman, I rise in opposition to the amendment offered by the 
gentleman from Michigan. This is an amendment which was considered by 
the full Committee on the Judiciary and was not adopted. It is also an 
amendment that was considered by the full House 3 years ago, I 
understand, when it was offered as an amendment to the product 
liability reform bill. It was defeated then. I understand there may 
have been a conflicting action on a motion to instruct conferees.
  I think it is important for the Members to focus on the potential 
impact of this amendment. I share the concern of the gentleman from 
Michigan that we act in such a way that we can help ensure that 
American companies are not subjected to unfair foreign competition. But 
I think we also have to be very concerned about the potential 
retaliation by foreign nations if we adopt a provision such as this, 
that that is a primary concern, I think, that should move us to oppose 
the gentleman's amendment and see that it is not adopted.
  The extent to which American statutes apply to foreign nationals 
already is a serious point of contention in our foreign relations. I 
believe it is important that we proceed cautiously in this area. I 
think additional caution is indicated due to the fact that this 
amendment has not been the subject of full consideration in hearings.
  I agree with the gentleman that this is an area for us to look at, 
but I do not think that we have adequately evaluated this in order to 
make sure that we are striking an appropriate balance that is not going 
to end up actually harming American interests.
  I respect the intentions of the gentleman from Michigan. I understand 
that he is trying to protect American interests. But it is my concern 
for which I believe that there is a strong basis that the actual impact 
of this could actually be to harm American interests around the world 
and to subject American companies, American citizens doing business in 
other countries to retaliatory action in response to our enactment of 
this amendment.
  In light of those concerns, and with the recognition of the 
gentleman's good faith in offering this, I would strongly urge the 
Members of the House to reject the amendment, but I would for myself 
certainly offer to the gentleman to work with him on this issue and to 
see if there may be a way that we can strike an appropriate balance 
where we can help protect American interests without inviting 
retaliation that could be harmful.
  Mr. SKAGGS. Mr. Chairman, will the gentleman yield?
  Mr. CANADY of Florida. I am happy to yield to the gentleman from 
Colorado.
  Mr. SKAGGS. Mr. Chairman, I just was curious because I was tracking, 
I think, the gentleman's logic in this. It seems to me it might extend 
then to, for instance, opposing the Helms-Burton legislation which has 
certain extraterritorial effects that run into serious opposition from 
our friends around the world.
  Mr. CANADY of Florida. Mr. Chairman, I thank the gentleman for his 
insight on that issue. I would suggest to the gentleman from Colorado 
that there are extraordinary considerations involved there which the 
House has debated. The House has spoken on that issue along with the 
Senate, and I might also add along with the administration.
  Mr. SKAGGS. Mr. Chairman, I move to strike the requisite number of 
words.
  Mr. Chairman, I yield to the distinguished gentleman from Michigan 
(Mr. Conyers), the ranking member.
  Mr. CONYERS. Mr. Chairman, I would want to say to my friend from 
Florida, we need to work on this some more, but what more work does the 
gentleman have in mind? This is no different from the committee 
amendment. We have gone through this in the Committee on the Judiciary. 
That is the only way it got out to the floor.
  Mr. CANADY of Florida. Mr. Chairman, will the gentleman yield?
  Mr. SKAGGS. I yield to the gentleman from Florida.
  Mr. CANADY of Florida. Mr. Chairman, it is true we went through it in 
the Committee on the Judiciary, and the amendment was defeated. It was 
rejected by the committee. Obviously, that is why we are here debating 
it today.
  Mr. CONYERS. Yes, it was defeated in the committee; but with no 
derogatory reflection on the committee. It was passed in the House by a 
vote of 258 to 166, and then it was approved by an even larger motion 
to instruct conferees by 256 to 142, February 29, 1996.

[[Page H2281]]

  If the gentlemen are suggesting that I have got to pass an amendment 
in the Committee on the Judiciary before I can pass an amendment that 
has already passed on the floor, we maybe ought to reconsider the way 
that Congress works. Notwithstanding the Members in the committee, this 
is a very popular motion.
  Let us talk about the problems that one might examine here. First of 
all, I do not want to put the gentleman into a not wanting to protect 
American interests like the majority of us do. I know he does. I would 
argue that for anybody. But there is no retaliation. We are the ones 
that are being disadvantaged already.
  What I am doing is trying to level the playing field. The fact of the 
matter is that Americans cannot reach foreign corporations because we 
are tied up by their laws of service, their laws of discovery, their 
laws of bringing them into litigation.
  All I am saying is that foreign corporations, if and when they may be 
the subject of litigation, would be subject to no less rules of 
procedure than American corporations.
  How that would antagonize a foreign corporation benefiting from 
American sales, and by the way, guess who buys the most from everybody 
in the world? So there is no way that we could make them angry and they 
would take their products away from us. I do not think that is going to 
really work. So please, please, sir, realize that this is very critical 
to American citizens, our constituents, who are trying to seek some 
recovery.
  Now, it just occurred to me, I mentioned halogen lamps. You know, the 
greatest jazz musician in America, aged 90, Lionel Hampton, had his 
whole apartment destroyed because of a halogen lamp. I do not know 
whether it was made in or out of the U.S., but there was going to be a 
big suit, and they, fortunately, resolved it.
  But if it had gone to litigation, if it had been a foreign 
corporation, Lionel Hampton may not live long enough to ever see 
anything happen to it, because he would have to go along with the civil 
rules of procedure for whatever company, for whatever country the 
company originated in.
  All I am saying is let us have everybody play by the same set of 
rules. So if we could get another vote on it, and everyone is of the 
same opinion that they were 2 years ago, 1 year ago, I would be very 
grateful.
  The CHAIRMAN pro tempore. The question is on the amendment offered by 
the gentleman from Michigan (Mr. Conyers).
  The question was taken; and the Chairman pro tempore announced that 
the noes appeared to have it.
  Mr. CONYERS. Mr. Chairman, I demand a recorded vote, and pending 
that, I make the point of order that a quorum is not present.
  The CHAIRMAN pro tempore. Pursuant to House Resolution 408, further 
proceedings on the amendment offered by the gentleman from Michigan 
will be postponed.
  The point of no quorum is considered withdrawn.

                              {time}  1630


                   Amendment Offered by Mr. Aderholt

  Mr. ADERHOLT. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Aderholt:
       Page 8, line 15, insert ``or to disburse any funds to 
     remedy the deprivation of a right under the Constitution,'' 
     after ``tax,''.
       Page 8, line 21, strike ``or assessment'' and insert 
     ``assessment, or disbursement''.
       Page 9, strike lines 1 through 24 and insert the following:
       ``(C) the tax or assessment will not contribute to or 
     exacerbate the deprivation intended to be remedied, including 
     through its effect on property valves or otherwise;
       ``(D) plans submitted to the court by State and local 
     authorities will not effectively redress the deprivations at 
     issue; and
       ``(E) the interests of State and local authorities in 
     managing their affairs are not usurped, in violation of the 
     Constitution, by the proposed imposition, increase, levying, 
     or assessment.
       ``(2) The limitation contained in paragraph (1) shall apply 
     only to any order or settlement which--
       ``(A) expressly directs any State, or political subdivision 
     of a State, to impose, increase, levy, or assess any tax or 
     disburse any funds to remedy the deprivation of a right under 
     the Constitution; or
       ``(B) will necessarily require a State, or political 
     subdivision of a State, to impose, increase, levy, or assess 
     any tax or disburse any funds to remedy the deprivation of a 
     right under the Constitution.
       ``(3) If the court finds that the conditions set forth in 
     paragraph (1) have been satisfied, it shall enter an order 
     incorporating that finding, and that order shall be subject 
     to immediate interlocutory de novo review.
       Page 10, line 7, insert after ``tax,'' the following: ``and 
     any person or entity that is a resident of the State or 
     political subdivision that would be required to disburse 
     funds under paragraph (1) shall have the right to intervene 
     in any proceeding concerning such disbursement,''.
       Page 10, line 16, insert ``, or disburse the funds,'' after 
     ``tax''.
       Page 10, line 21, insert ``, or the disbursement of 
     funds,'' after ``tax''.
       Page 10, line 25, insert ``or the disbursement of funds, as 
     the case may be'' after ``tax''.
       Page 11, line 10, insert ``, or a disbursement of funds 
     that is made,'' after ``imposed''.
  Mr. ADERHOLT (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as read and printed in the 
Record.
  The CHAIRMAN pro tempore (Mr. Rogers). Is there objection to the 
request of the gentleman from Alabama?
  There was no objection.
  Mr. ADERHOLT. Mr. Chairman, today I have come to the House floor to 
call for an end to the unlimited power of Federal judges to legislate 
from the Federal bench and then send State and local taxpayers the 
bill. I want to make certain that Federal judges like some in Alabama, 
like Judge Ira DeMent, so they cannot use the people's hard-earned tax 
dollars for things like court-appointed prayer monitors and sensitivity 
training for teachers on how to keep prayer out of schools.
  In Dekalb County, Alabama, which I am privileged to represent, the 
Fourth Congressional District, Judge DeMent has been decided to be a 
legislator and appropriate from the Federal bench. He ordered county 
school funds that should be going to the classrooms to go to pay for 
court-appointed monitors who will go into the schools and to make sure 
that there is no prayer.
  Although I disagree with Judge DeMent's ruling, there may be some 
here today who agree with it, but when a Federal judge has free rein to 
take control and take local school funds away from local officials and 
then use them to pay for whatever he deems necessary, that is going too 
far. We need to have checks and balances. Our Nation was founded on 
this principle, and unfortunately we have drifted far away from this. 
Taxation without representation has been a cause for revolt in this 
country since the beginning of the American Revolution, and we are 
still fighting this battle today.
  This amendment that I am offering today would re-insert and clarify 
the original language in section 5 of H.R. 1252 to ensure that certain 
criteria are met before the courts can disburse existing local and 
State taxpayer dollars in constitutional cases. The underlying bill has 
stated that a judge must meet certain criteria in order to raise or 
assess taxes. My amendment will give Federal judges the same pause for 
thought before using existing State and local revenues in 
constitutional cases.
  This amendment does not say a Federal judge can never use State and 
local funds, it merely states that before he acts he must make sure 
that he is doing the right thing.
  An unelected official should not be allowed to impose a tax on the 
people without first giving careful consideration to their actions. 
Likewise, if a Federal judge takes away local resources to enforce a 
ruling, especially in constitutional cases, there need to be 
protections built into the system to ensure that judges do not overstep 
their bounds and make decisions that are clearly out of the scope of 
their authority.
  Using existing funds collected from honest taxpaying citizens for 
purposes that a judge who has clearly over stepped his bounds, they 
should be prohibited, and that is what my amendment aims to do.
  I urge my colleagues to put a stop to the court systems in America 
that are running amok and vote in favor of my amendment to H.R. 1252.
  The CHAIRMAN pro tempore. The question is on the amendment offered by 
the gentleman from Alabama (Mr. Aderholt).
  The question was taken; and the Chairman pro tempore announced that 
the ayes appeared to have it.
  Mr. SKAGGS. Mr. Chairman, I demand a recorded vote.

[[Page H2282]]

  The CHAIRMAN pro tempore. Pursuant to House Resolution 408, further 
proceedings on the amendment offered by the gentleman from Alabama (Mr. 
Aderholt) will be postponed.


                    Amendment Offered by Mr. Skaggs

  Mr. SKAGGS. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Skaggs:
       At the end of the bill, add the following new section:

     SEC.    COURT SETTLEMENT SUNSHINE.

       (a) Short Title.--This section may be cited as the 
     ``Federal Court Settlements Sunshine Act of 1998.''
       (b) Requirements Regarding Settlement of Cases.--Chapter 
     111 of Title 28, United States Code, is amended by adding at 
     the end the following:

     ``SEC. 1661. PUBLIC AVAILABILITY OF SETTLEMENTS OF CASES.

       ``Any settlement made of a civil action to which the United 
     States, an agency or department thereof, or an officer or 
     employee thereof in his or her official capacity, is a real 
     party in interest, shall not be sealed, but shall be made 
     available for public inspection, unless the court determines 
     that there is a compelling public interest in limiting such 
     availability. Any such determination shall be made in writing 
     and shall explain the basis for the determination.''
       (c) Conforming Amendment.--The table of sections at the 
     beginning of chapter 111 of title 28, United States Code, is 
     amended by adding at the end the following new item:

``Sec. 1661. Public availability of settlements of cases.''

  Mr. SKAGGS (during the reading). Mr. Chairman, I ask unanimous 
consent that the amendment be considered as having been read and 
printed in the Record.
  The CHAIRMAN pro tempore. Is there objection to the request of the 
gentleman from Colorado?
  There was no objection.
  Mr. SKAGGS. Mr. Chairman, I appreciate the opportunity to bring this 
issue to my colleagues, but in doing so I want first to apologize to 
particularly the chairmen of the committee and the subcommittee for not 
having brought this to them before we started debate on this on the 
floor today. It is not a process that I would normally want to follow 
and certainly not one that they want to have followed.
  But this is a matter that actually was heard in a Judiciary 
subcommittee a few years ago and reported out. It basically would 
provide that in any civil case in which the United States, an agency of 
the United States or a officer of the United States is a party in 
interest, that any settlement entered into in such a case would in the 
normal course have to be made available to the public, public 
information, unless the presiding judge entered an order finding that 
there was a compelling public interest in sealing the settlement papers 
and making them secret.
  Certainly at a time when there is a lot of discussion about the need 
for more open and accountable government, I believe that moving in this 
direction with the Federal courts is an appropriate thing to do.
  We are all well aware that agencies in the United States Government 
are involved in litigation routinely around the country involving all 
manner of important public issues, whether Superfund matters, consumer 
products issues, whatever. Frequently these cases are settled and the 
judge considering the settlement is requested to seal the settlement; 
that is, block any public disclosure. The reason for sealing these 
settlements can range from just avoiding embarrassment to protecting 
trade secrets and a number of things, some of them quite legitimate and 
offering a compelling public interest reason for sealing the 
information.
  But I think it is important and therefore this amendment would create 
a presumption that in cases in which the United States Government is a 
party, that the public's right to know should be respected, again 
absent a presentation of reasons to seal a settlement and absent a 
determination by the court on a reasonable basis that there is good 
reason to withhold the terms of the settlement from the public. This is 
the public's business. Often large sums of money or important matters 
of public policy can be at stake, so I think it is only right that we 
all have a chance to see what kind of settlement arrangements our 
national government has entered into.
  I know my colleagues may recall back to the savings and loan debacle 
days. In Colorado there was a settlement in the old Silverado case 
involving something like a billion dollars, but that settlement was 
sealed and the people of Colorado and the country never had any 
opportunity to find out exactly what was going on there. I do not think 
that is the kind of presumption that creates and supports public trust 
and confidence in the courts, so I hope that this is an amendment that 
is reasonably drawn for a good purpose and can earn the support of my 
colleagues.
  In the hearing that was held on this amendment some years ago before 
it was passed out of the same subcommittee that brings this bill to the 
floor, one Federal district judge who testified in support of the bill 
characterized this kind of public accountability as, quote, the very 
essence of justice is that it is public. I think that ought to inform 
our treatment of this matter, and I ask my colleagues' favorable 
consideration.
  Mr. CANADY of Florida. Mr. Chairman, I rise in opposition to the 
amendment offered by the gentleman from Colorado (Mr. Skaggs).
  Mr. Chairman, I am sorry to disappoint my friend and colleague from 
Colorado in opposing the amendment, but as the gentleman noted at the 
outset, this is an amendment which we on the Committee on the Judiciary 
have really not had an opportunity to fully evaluate.
  I am sympathetic to the concerns underlying the amendment, and 
although I will have to say that this debate to a certain extent has 
already taken place in connection with the Jackson-Lee amendment that 
was offered earlier, obviously the gentleman's amendment is more 
restricted in that it focuses on settlements involving the Government 
of the United States, whereas the Jackson-Lee amendment was much 
broader than that. But, notwithstanding that, I am concerned that this 
amendment would in its present form serve to discourage settlement of 
cases by the government and could result in the disclosure of 
information which should not be disclosed, which could cause 
unnecessary embarrassment to innocent individuals.
  There is also a potential, as the gentleman recognized, for 
disclosure of proprietary information. I believe the gentleman's 
position would be that his amendment would not require the disclosure 
of proprietary information. I am not certain that that is clear from 
the terms of the amendment, however, so that is a concern.
  I think another point to make in connection with this is that the 
Civil Rules Advisory Committee of the Judicial Conference has 
recommended that there be no changes to rule 26(c) regarding protective 
orders, and I do not always agree with the Judicial Conference.
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
  Mr. CANADY of Florida. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. I would just note that the gentleman 
never agrees with the Judicial Conference.
  Mr. CANADY of Florida. Well, occasionally.
  Mr. FRANK of Massachusetts. Except now.
  Mr. CANADY of Florida. Occasionally we agree with the Judicial 
Conference. The Judicial Conference has looked at this, and they have 
decided that there is no compelling need for a change in the rule.
  Another point that I think we should consider is that the sort of 
public matters and settlements by government agencies that the 
gentleman is concerned about are subject to ongoing oversight by the 
Congress of the United States. I think that that is an appropriate area 
for us to be involved, and I believe that to the extent that there may 
be problems with respect to settlements that are entered into by 
government agencies, it is our responsibility in the Congress to 
conduct oversight with respect to those matters. I believe that that 
avenue of bringing public scrutiny to settlements is a valuable check 
on potential abuses in this area.
  So for all of these reasons I would urge the Members of the House to 
reject the gentleman's amendment. Again, as with the earlier 
amendments, I as a member of the Subcommittee on Crime would be happy 
to work with the gentleman in addressing his concerns.
  There may be a way that could be more narrowly tailored and targeted 
which would help ensure that the public interest is protected, and that 
all

[[Page H2283]]

the other concerns that we have are adequately covered so that we are 
not compromising the values that we seek to protect. We may be able to 
craft an approach that would take all those things into account and 
would be balanced and would deserve passage by the House, but I do not 
think we are there yet with this particular amendment, so I would urge 
the Members of the House to reject the amendment.
  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the 
requisite number of words.
  Mr. Chairman, as it has been said that patriotism is sometimes the 
last refuge of scoundrels, invocation of the Judicial Conference is the 
last refuge of my friend from Florida. He is rarely to be found on the 
same side of an issue as the Judicial Conference, he is rarely to be 
found on the same side of the hemisphere as the Judicial Conference, 
and when the gentleman from Florida invokes the Judicial Conference it 
is a simple affirmation of the principle that nature abhors a vacuum. 
Into the vacuum of arguments that my friend had rushes a reference to 
the Judicial Conference. The fact that he who ordinarily disagrees with 
it invokes it shows this is a pretty good idea. Not only is it a pretty 
good idea, but it is one that is hard to object to.
  The gentleman's amendment is quite moderate, the gentleman from 
Colorado. It says if a judge decides there is a compelling reason not 
to make this public, the judge can do that. But the rule ought to be, 
the assumption ought to be that the public will know about public 
business.
  I am surprised, frankly, at some of my conservative friends. 
Conservatives have traditionally distrusted the executive. For them to 
be not wanting to require the executive to make clear the terms of any 
settlement which in the nature of the case would exclude the 
legislative body but be an executive decision surprises me. So I rise 
in support of the amendment.
  Mr. Chairman, I yield to the gentleman from Colorado (Mr. Skaggs) the 
author of the amendment.

                              {time}  1645

  Mr. SKAGGS. Mr. Chairman, I appreciate the comments made by my friend 
from Florida about other ways of getting at the problem. I think it is 
a bit not quite sufficient to the issue to suggest that any problems 
along these lines, of course, would be susceptible to Congressional 
oversight and intervention by us. That can happen in a fairly haphazard 
fashion, as I think the gentleman is aware.
  But this really comes down to a pretty fundamental question, which is 
do you think the business of the United States courts, when involving 
the United States itself as a party, ought to be presumptively public 
business or not, yes or no, subject to the discretion of a judge, 
employing a reasonable standard to determine whether there are 
countervailing interests to that presumption of the public business of 
the public courts being public?
  If the gentleman is uncomfortable with that proposition, obviously he 
will vote against the amendment. But I think it is a fairly 
straightforward one, and one I was quite proud, for instance, to have 
the cosponsorship and support of the now chairman of the Committee on 
the Judiciary when this was reported out of the subcommittee that the 
gentleman is now a member of a couple of years ago.
  The CHAIRMAN. The question is on the amendment offered by the 
gentleman from Colorado (Mr. Skaggs).
  The amendment was rejected.


          Sequential Votes Postponed In Committee of the Whole

  The CHAIRMAN. Pursuant to House Resolution 408, proceedings will now 
resume on those amendments on which further proceedings were postponed 
in the following order:
  The amendment offered by the gentleman from Michigan (Mr. Conyers), 
and the amendment offered by the gentleman from Alabama (Mr. Aderholt).
  The Chair will reduce to 5 minutes the time for any electronic vote 
after the first vote in this series.


                    Amendment Offered by Mr. Conyers

  The CHAIRMAN. The pending business is the vote on the amendment 
offered by the gentleman from Michigan (Mr. Conyers) on which further 
proceedings were postponed, and on which the noes prevailed by voice 
vote.
  The Clerk will designate the amendment.
  The Clerk designated the amendment.


                             Recorded Vote

  The CHAIRMAN. A recorded vote has been demanded.
  A recorded vote was ordered.
  The vote was taken by electronic device, and there were--ayes 200, 
noes 216, not voting 16, as follows:

                             [Roll No. 107]

                               AYES--200

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baesler
     Baldacci
     Ballenger
     Barcia
     Barrett (WI)
     Becerra
     Bentsen
     Berman
     Berry
     Bishop
     Blagojevich
     Blumenauer
     Bonior
     Borski
     Boswell
     Boucher
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Capps
     Cardin
     Carson
     Chabot
     Clayton
     Clement
     Clyburn
     Condit
     Conyers
     Costello
     Coyne
     Cummings
     Danner
     Davis (FL)
     Davis (IL)
     Deal
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Dicks
     Dingell
     Doggett
     Dooley
     Doyle
     Duncan
     Edwards
     Ehrlich
     Engel
     English
     Ensign
     Eshoo
     Etheridge
     Evans
     Farr
     Fazio
     Filner
     Ford
     Frank (MA)
     Franks (NJ)
     Frost
     Furse
     Gejdenson
     Gephardt
     Green
     Gutierrez
     Hall (OH)
     Hamilton
     Harman
     Hefner
     Hilleary
     Hinchey
     Holden
     Hooley
     Hoyer
     Hunter
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     John
     Johnson (WI)
     Johnson, E. B.
     Kanjorski
     Kaptur
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Klink
     Kucinich
     LaFalce
     Lampson
     Lantos
     Lee
     Levin
     Lewis (GA)
     LoBiondo
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Manton
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McDermott
     McGovern
     McHale
     McHugh
     McIntyre
     McKinney
     McNulty
     Meehan
     Meeks (NY)
     Menendez
     Millender-McDonald
     Miller (CA)
     Minge
     Mink
     Moakley
     Mollohan
     Moran (VA)
     Morella
     Nadler
     Neal
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Pallone
     Pappas
     Pascrell
     Pastor
     Payne
     Pelosi
     Pomeroy
     Price (NC)
     Rahall
     Rangel
     Reyes
     Rivers
     Rodriguez
     Roemer
     Roybal-Allard
     Rush
     Sabo
     Salmon
     Sanchez
     Sanders
     Sandlin
     Sawyer
     Schumer
     Scott
     Serrano
     Sherman
     Skaggs
     Skelton
     Slaughter
     Smith (MI)
     Smith, Adam
     Snyder
     Spratt
     Stabenow
     Stark
     Stearns
     Stokes
     Strickland
     Stupak
     Tauscher
     Taylor (MS)
     Thompson
     Thurman
     Tierney
     Torres
     Towns
     Traficant
     Velazquez
     Vento
     Visclosky
     Wamp
     Waters
     Watt (NC)
     Waxman
     Weygand
     Wise
     Woolsey
     Wynn
     Yates

                               NOES--216

     Aderholt
     Archer
     Armey
     Bachus
     Baker
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bass
     Bereuter
     Bilbray
     Bilirakis
     Bliley
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boyd
     Brady
     Bryant
     Bunning
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Cannon
     Castle
     Chambliss
     Chenoweth
     Christensen
     Coburn
     Collins
     Combest
     Cook
     Cooksey
     Cox
     Cramer
     Crane
     Crapo
     Cubin
     Cunningham
     Davis (VA)
     DeLay
     Diaz-Balart
     Dickey
     Doolittle
     Dreier
     Dunn
     Ehlers
     Emerson
     Everett
     Ewing
     Fawell
     Foley
     Forbes
     Fossella
     Fowler
     Frelinghuysen
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goode
     Goodlatte
     Goodling
     Gordon
     Goss
     Graham
     Granger
     Greenwood
     Gutknecht
     Hall (TX)
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Herger
     Hill
     Hilliard
     Hobson
     Hoekstra
     Horn
     Hostettler
     Houghton
     Hulshof
     Hutchinson
     Hyde
     Inglis
     Jenkins
     Johnson (CT)
     Johnson, Sam
     Jones
     Kasich
     Kelly
     Kim
     King (NY)
     Kingston
     Klug
     Knollenberg
     Kolbe
     LaHood
     Largent
     Latham
     LaTourette
     Lazio
     Leach
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     Livingston
     Lucas
     Manzullo
     McCollum
     McCrery
     McDade
     McInnis
     McIntosh
     McKeon
     Metcalf
     Mica
     Moran (KS)
     Murtha
     Myrick
     Nethercutt
     Neumann
     Ney
     Northup
     Norwood
     Nussle
     Oxley
     Packard
     Parker
     Paul
     Pease
     Peterson (MN)
     Peterson (PA)
     Petri
     Pickering
     Pickett
     Pitts
     Pombo
     Porter
     Portman
     Pryce (OH)
     Quinn
     Radanovich
     Ramstad
     Redmond
     Regula
     Riley
     Rogan
     Rogers
     Rohrabacher
     Ros-Lehtinen
     Rothman
     Roukema
     Royce
     Ryun
     Sanford
     Saxton
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shays
     Shimkus
     Shuster
     Sisisky
     Skeen

[[Page H2284]]


     Smith (NJ)
     Smith (OR)
     Smith (TX)
     Smith, Linda
     Snowbarger
     Solomon
     Souder
     Spence
     Stenholm
     Stump
     Sununu
     Talent
     Tauzin
     Taylor (NC)
     Thomas
     Thornberry
     Thune
     Tiahrt
     Turner
     Upton
     Walsh
     Watkins
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Wexler
     White
     Whitfield
     Wicker
     Wolf
     Young (AK)
     Young (FL)

                             NOT VOTING--16

     Bateman
     Clay
     Coble
     Dixon
     Fattah
     Fox
     Gonzalez
     Hastings (FL)
     Hinojosa
     Istook
     Meek (FL)
     Miller (FL)
     Paxon
     Poshard
     Riggs
     Tanner

                              {time}  1709

  Messrs. FOLEY, YOUNG of Alaska, and CAMPBELL changed their vote from 
``aye'' to ``no.''
  Messrs. OWENS, KUCINICH, STUPAK, McHUGH, HILLEARY, MINGE and HUNTER 
changed their vote from ``no'' to ``aye.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.


                Announcement by the Chairman pro tempore

  The CHAIRMAN pro tempore. Pursuant to House Resolution 408, the Chair 
announces that he will reduce to a minimum of 5 minutes the period of 
time within which a vote by electronic device will be taken on the 
additional amendment on which the Chair has postponed further 
proceedings.


                   Amendment Offered by Mr. Aderholt

  The CHAIRMAN pro tempore. The pending business is the demand for a 
recorded vote on the amendment offered by the gentleman from Alabama 
(Mr. Aderholt) on which further proceedings were postponed and on which 
the ayes prevailed by voice vote.
  The Clerk will designate the amendment.
  The Clerk designated the amendment.


                             Recorded Vote

  The CHAIRMAN pro tempore. A recorded vote has been demanded.
  A recorded vote was ordered.
  The CHAIRMAN pro tempore. This is a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 174, 
noes 236, not voting 22, as follows:

                             [Roll No. 108]

                               AYES--174

     Aderholt
     Archer
     Armey
     Bachus
     Baker
     Ballenger
     Barr
     Barrett (NE)
     Bartlett
     Barton
     Bereuter
     Bilirakis
     Bliley
     Blunt
     Boehner
     Bonilla
     Bono
     Brady
     Bryant
     Bunning
     Burr
     Burton
     Callahan
     Calvert
     Canady
     Cannon
     Chabot
     Chambliss
     Chenoweth
     Christensen
     Coburn
     Collins
     Combest
     Condit
     Cook
     Cooksey
     Cramer
     Crane
     Crapo
     Cubin
     Cunningham
     Danner
     Deal
     DeLay
     Dickey
     Doolittle
     Dreier
     Duncan
     Dunn
     Ehrlich
     Emerson
     Ensign
     Everett
     Foley
     Fossella
     Fowler
     Gallegly
     Gekas
     Gibbons
     Gillmor
     Goode
     Goodlatte
     Goodling
     Goss
     Graham
     Granger
     Hall (TX)
     Hansen
     Hastert
     Hastings (WA)
     Hayworth
     Hefley
     Hefner
     Herger
     Hill
     Hilleary
     Hoekstra
     Hostettler
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Inglis
     Jenkins
     Johnson, Sam
     Jones
     Kasich
     Kim
     King (NY)
     Kingston
     Knollenberg
     Kolbe
     Largent
     Latham
     Lewis (CA)
     Lewis (KY)
     Linder
     Livingston
     Lucas
     Manzullo
     McCollum
     McCrery
     McHugh
     McInnis
     McIntosh
     McIntyre
     McKeon
     Metcalf
     Mica
     Moran (KS)
     Myrick
     Nethercutt
     Neumann
     Northup
     Norwood
     Nussle
     Packard
     Parker
     Paul
     Pease
     Peterson (MN)
     Peterson (PA)
     Pickering
     Pickett
     Pitts
     Pombo
     Portman
     Radanovich
     Redmond
     Riley
     Rogan
     Rogers
     Rohrabacher
     Royce
     Ryun
     Salmon
     Sanford
     Scarborough
     Schaefer, Dan
     Schaffer, Bob
     Sensenbrenner
     Sessions
     Shadegg
     Shaw
     Shimkus
     Shuster
     Sisisky
     Skeen
     Smith (MI)
     Smith (OR)
     Smith (TX)
     Smith, Linda
     Snowbarger
     Solomon
     Spence
     Stearns
     Stenholm
     Stump
     Talent
     Tauzin
     Taylor (NC)
     Thomas
     Thornberry
     Thune
     Tiahrt
     Traficant
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Wicker
     Wolf
     Young (AK)
     Young (FL)

                               NOES--236

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baesler
     Baldacci
     Barcia
     Barrett (WI)
     Bass
     Becerra
     Bentsen
     Berman
     Berry
     Bilbray
     Bishop
     Blagojevich
     Blumenauer
     Boehlert
     Bonior
     Borski
     Boswell
     Boucher
     Boyd
     Brown (CA)
     Brown (FL)
     Brown (OH)
     Campbell
     Capps
     Cardin
     Carson
     Castle
     Clayton
     Clement
     Clyburn
     Conyers
     Costello
     Coyne
     Cummings
     Davis (FL)
     Davis (VA)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Diaz-Balart
     Dicks
     Dingell
     Doggett
     Dooley
     Doyle
     Edwards
     Ehlers
     Engel
     English
     Eshoo
     Etheridge
     Evans
     Ewing
     Farr
     Fawell
     Fazio
     Filner
     Forbes
     Ford
     Frank (MA)
     Franks (NJ)
     Frelinghuysen
     Frost
     Furse
     Ganske
     Gejdenson
     Gephardt
     Gilchrest
     Gilman
     Gordon
     Green
     Greenwood
     Gutierrez
     Gutknecht
     Hall (OH)
     Hamilton
     Harman
     Hilliard
     Hinchey
     Hobson
     Holden
     Hooley
     Horn
     Houghton
     Hoyer
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     John
     Johnson (CT)
     Johnson (WI)
     Johnson, E. B.
     Kanjorski
     Kelly
     Kennedy (MA)
     Kennedy (RI)
     Kennelly
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Klink
     Klug
     Kucinich
     LaFalce
     LaHood
     Lampson
     Lantos
     LaTourette
     Lazio
     Leach
     Lee
     Levin
     Lewis (GA)
     Lipinski
     LoBiondo
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Manton
     Markey
     Martinez
     Mascara
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McDade
     McDermott
     McGovern
     McHale
     McKinney
     McNulty
     Meehan
     Meeks (NY)
     Menendez
     Millender-McDonald
     Miller (CA)
     Minge
     Mink
     Moakley
     Mollohan
     Moran (VA)
     Morella
     Murtha
     Nadler
     Neal
     Ney
     Oberstar
     Obey
     Olver
     Ortiz
     Owens
     Oxley
     Pallone
     Pappas
     Pascrell
     Pastor
     Payne
     Pelosi
     Petri
     Pomeroy
     Porter
     Price (NC)
     Pryce (OH)
     Quinn
     Rahall
     Ramstad
     Rangel
     Regula
     Reyes
     Rivers
     Rodriguez
     Roemer
     Ros-Lehtinen
     Rothman
     Roukema
     Roybal-Allard
     Rush
     Sabo
     Sanchez
     Sanders
     Sandlin
     Sawyer
     Saxton
     Schumer
     Scott
     Serrano
     Shays
     Sherman
     Skaggs
     Skelton
     Slaughter
     Smith (NJ)
     Smith, Adam
     Snyder
     Spratt
     Stabenow
     Stark
     Stokes
     Strickland
     Stupak
     Sununu
     Tauscher
     Taylor (MS)
     Thompson
     Thurman
     Tierney
     Torres
     Towns
     Turner
     Upton
     Velazquez
     Vento
     Visclosky
     Walsh
     Waters
     Watt (NC)
     Waxman
     Weldon (PA)
     Weller
     Wexler
     Weygand
     White
     Whitfield
     Wise
     Woolsey
     Wynn
     Yates

                             NOT VOTING--22

     Bateman
     Buyer
     Camp
     Clay
     Coble
     Cox
     Davis (IL)
     Dixon
     Fattah
     Fox
     Gonzalez
     Hastings (FL)
     Hinojosa
     Istook
     Kaptur
     Meek (FL)
     Miller (FL)
     Paxon
     Poshard
     Riggs
     Souder
     Tanner

                              {time}  1718

  Messrs. GREEN, McDADE, PETRI and MILLER of California changed their 
vote from ``aye'' to ``no.''
  So the amendment was rejected.
  The result of the vote was announced as above recorded.


                          personal explanation

  Mr. CAMP. Mr. Chairman, on rollcall no. 108, my voting card did not 
register, although I voted no.
  (By unanimous consent, Mr. Solomon was allowed to speak out of 
order.)


 Amendment Process for H.R. 6, The Higher Education Amendments of 1998

  Mr. SOLOMON. Mr. Chairman, I move to strike the last word for the 
purposes of making an announcement.
  Mr. Chairman, the Committee on Rules is planning to meet the week of 
April 27th, this coming week, to grant a rule which may limit the 
amendment process on H.R. 6, the Higher Education Amendments of 1998.
  The rule may, at the request of the Committee on Education and the 
Workforce, include a provision requiring amendments to be preprinted in 
the amendment section of the Congressional Record. Amendments to be 
preprinted should be signed by the Member and submitted at the 
Speaker's table. Amendments should be drafted to the text of the bill 
as reported by the Committee on Education and the Workforce.
  Mr. Chairman, Members should use the Office of Legislative Counsel to 
ensure that their amendments are properly drafted and should check with 
the Office of the Parliamentarian to make certain that their amendments 
comply with the rules of the House.
  Mr. MANZULLO. Mr. Chairman, I ask unanimous consent that the Clerk be 
directed to strike section 5 of the bill.
  The CHAIRMAN pro tempore (Mr. Rogers). Is there objection to the 
request of the gentleman from Illinois?
  Mr. ADERHOLT. Mr. Chairman, reserving the right to object, and I do 
not intend to object, but I would like to engage in a colloquy with the 
distinguished gentleman from Florida (Mr.

[[Page H2285]]

Canady) chairman of the Subcommittee on the Constitution of the 
Committee on the Judiciary.
  Mr. Chairman, I would like to request that the Committee on the 
Judiciary study the situation in DeKalb County, Alabama, which has 
occurred as a result of Judge DeMent's ruling. I do not object to the 
unanimous consent at this time, but I would like to ask that that be 
studied.
  Mr. CANADY of Florida. Mr. Chairman, will the gentleman yield?
  Mr. ADERHOLT. I yield to the gentleman from Florida.
  Mr. CANADY of Florida. Mr. Chairman, I certainly understand the 
gentleman's concerns and I share the concerns regarding certain matters 
with respect to the judge's order, and that is a matter which we will 
consider.
  Mr. ADERHOLT. Mr. Chairman, reclaiming my time, I withdraw my 
reservation of objection.
  The CHAIRMAN pro tempore. Is there objection to the request of the 
gentleman from Illinois?
  There was no objection.
  The CHAIRMAN pro tempore. Section 5, as amended, is stricken.
  Are there other amendments?


                    Amendment Offered by Mr. Coburn

  Mr. COBURN. Mr. Chairman, I offer an amendment.
  The Clerk read as follows:

       Amendment offered by Mr. Coburn:
       Add the following at the end:

     SEC. 12 LIMITATION ON RACKETEERING

       (a) In General.--Chapter 99 of title 28, United States 
     Code, is amended by adding at the end the following new 
     section:

     ``SECTION 1633. LIMITATION ON RACKETEERING''

       ``(a) Limitation.--Notwithstanding any other provision of 
     law, in an action under section 1964 of title 18, no court of 
     the United States or other court listed in section 610 of 
     this title shall have jurisdiction to enter or carry out any 
     order against the defendant, unless the defendant has engaged 
     in a profit-seeking purpose or committed a criminal offense 
     under state law or under this title.''.
       (b) Conforming Amendment.--The table of sections for 
     chapter 99 of title 26, United States Code, is amended by 
     adding at the end the following:
       ``1633. Limitation on racketeering.''.

  Mr. COBURN. Mr. Chairman, everyone knows what a racketeer is and what 
a racketeer-influenced corrupt organization is. These words refer to 
organized criminals, to people who form gangs for the purpose of 
hurting other people and stealing from them.
  Declaring people racketeers simply because they engage in activities 
and activism on behalf of a cause does something very serious to our 
form of self-government and our sense of civil liberties. It puts 
citizens at risk of losing everything they have if they support a cause 
that happens to not be popular in the eyes of some court. It frightens 
citizens against the kind of civil activism that has been a hallmark of 
our democracy. It undercuts the very foundations of our government by 
the people.
  This amendment has no effect on the prosecution of criminals. It 
affects only civil actions under RICO. It offers no loophole of any 
sort for those who would attempt to steal the property of others or for 
those who would hurt innocent people.
  There is only one class of people who benefit from this amendment: 
citizens lawfully exercising their rights to speak out on issues of 
public concern.
  Mr. Chairman, it is my hope that we can support this amendment.
  Mr. SHADEGG. Mr. Chairman, will the gentleman yield?
  Mr. COBURN. I yield to the gentleman from Arizona.
  Mr. SHADEGG. Mr. Chairman, I rise in support of the gentleman's 
amendment and do so on the basis that the law needs to provide that the 
purpose of the crime has to have been a profit-seeking motive.
  The Arizona RICO law is written in a fashion to parrot the 
gentleman's amendment. It provides that the crime, the RICO offense, in 
order to be a predicate under the law, must have been pursued for 
financial gain.
  What the gentleman's amendment does is simply clarify that and 
provide that unless there was either a profit-seeking purpose or a 
criminal offense as defined under State law or under Federal law, a 
RICO action cannot be brought.
  That is consistent, Mr. Chairman, with both the intent of the authors 
and of the experts that help write the law, specifically, I believe, 
law professor G. Robert Blakey. I think the gentleman's amendment 
clarifies the law and is a step in the right direction, and I support 
the amendment wholeheartedly.
  Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last 
word.
  Mr. Chairman, we will now find out if on the Republican side sauce 
for the goose is sauce for the gander.
  I opposed an amendment that was offered before by the gentleman from 
California that would have created a brand-new privilege, a parent-
child privilege, not on the grounds that it was an unthinkable idea but 
that dealing with a subject of that complexity and that impact for the 
first time on the floor of the House without having gone through any of 
our procedure was not a good idea.

                              {time}  1730

  The majority agreed with me. I make the same argument here. Actually, 
this is not so much an amendment as it is a periodical. I have gotten 
four versions of it. I understand that. I am holding all four versions.
  First, it said earlier today it would only apply if the defendant was 
not primarily engaged in a profit-seeking purpose. Then we got profit-
seeking purpose or committed bodily injury. Then we got, we struck 
bodily injury, and we got criminal offense. Then we got a conforming 
amendment.
  I do not criticize the drafters. They are doing a very good job, but 
this is a work in progress. We have gotten four versions of it because 
they are trying to deal with a complex subject. I understand that this 
is a response to a decision that was just made, but let me make a point 
that I thought was clear. You run the place. You control the 
committees. You could schedule a hearing next week. You could schedule 
a markup the week after. You can bring the bill to the floor. Do not 
work in such haste on this issue.
  Now, Members quoted Professor Blakey as saying that the RICO statute 
goes too far. Many of us agree. But do my colleagues know it does not 
just go too far for nonprofits. There are profit-making entities that 
have been unfairly dealt with under RICO.
  You leave them alone, because my colleague from California did not 
like what Kenneth Starr did with regard to Monica Lewinsky and her 
mother, and came in with a bill right to the floor of the House. My 
colleagues here do not like what a court did with regard to a right-to-
life group, and they come right to the floor of the House. This is not 
a place for instant therapy. If you do not like something you read in 
the paper, please do not come right up with an amendment. Let us use 
the procedures.
  I agree in both cases; legislative action is appropriate, but not 
right away; not version four of the amendment. Let us have a hearing 
and a markup, and let us not say that we are only going to protect 
nonprofits. If you vote for this amendment, are you then going to tell 
people that as far as profit-making entities are concerned, RICO does 
not go too far?
  Mr. SHADEGG. Mr. Chairman, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from Arizona.
  Mr. SHADEGG. Mr. Chairman, I simply want to point out that the 
language as offered by the gentleman from Oklahoma does not limit this 
exemption to nonprofits. It will apply to profits or nonprofits. What 
it does is limit the activity to whether or not the activity was 
profit-making activity.
  Mr. FRANK of Massachusetts. I agree with that. That is exactly what I 
said. In fact, if you are a corporation trying to make a profit, which 
most corporations do, you are not covered by this amendment. That is 
true. If you have a profit-making corporation that is selling girl 
scout cookies, they could not be RICO'd for selling girl scout cookies. 
But under this amendment if they are a profit-seeking corporation 
seeking a profit, which profit-seeking corporations are wont to do, 
they do not get the benefit of this.
  Mr. SHADEGG. Again, Mr. Chairman, if the gentleman will continue to 
yield, I want to try to make this clear. It does not matter whether the 
entity is a profit-making entity or a nonprofit-making entity. If a 
profit-making entity is not engaged in a profit-making activity, they 
are engaged in a charitable activity.

[[Page H2286]]

  Mr. FRANK of Massachusetts. Mr. Chairman, I understand that. 
Reclaiming my time, the gentleman is limited in the amount of time he 
can state the obvious. Yes, if you are a profit-making corporation and 
you are going about the business of trying to make a profit, this 
amendment does not protect you. You could be subject to RICO. I agree.
  If General Motors was accused of trying to sell girl scout cookies in 
a racketeering way, you have come to their defense. But if someone 
said, corporation X is guilty of racketeering in its profit-making 
corporate entity, they are not protected. I do not think that ought to 
be the case. I do think there have been abuses of RICO, but against 
profit-making entities trying to make a profit. Indeed, if you look at 
the pattern of RICO, it is more often used by one civil plaintiff 
against a civil defendant and a profit-making corporation.
  I do not know what play they are going to call in the huddle, but we 
may be about to see version five. I have four versions and seven people 
working on amendment 5.
  Let us go to a hearing. Let us go to a markup. I do not think we 
should have the markup right here. It is not polite. I think we ought 
to do this in the regular order. But this amendment says, if you are 
engaging in profit-making activity, and you have a profit-making 
purpose, you get no benefit. You are covered by RICO.
  RICO says you cannot get together for racketeering purposes. I would 
not suggest that that is what is going on over there, Mr. Chairman. 
What they are trying to do is what we should do in the regular 
legislative process. Let us have a hearing and do this in a sensible 
way.
  Mr. COBURN. Mr. Chairman, I ask unanimous consent to strike the last 
word.
  The CHAIRMAN pro tempore (Mr. Rogers). Is there objection to the 
request of the gentleman from Oklahoma?
  There was no objection.
  Mr. COBURN. Mr. Chairman, I recognize the pertinent comments of the 
gentleman from Massachusetts, and would say that many of his comment 
are accurate, and that given his comments being accurate, I ask 
unanimous consent to withdraw the amendment.
  Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?
  Mr. COBURN. I yield to the gentleman from Massachusetts.
  Mr. FRANK of Massachusetts. Mr. Chairman, I would look forward, as I 
think many on our side would, and I know the ranking member would, we 
would love to reexamine the RICO statute across the board and deal with 
abuses, and on that basis I thank the gentleman and we will be 
cooperative.
  Mr. HYDE. Mr. Chairman, will the gentleman yield?
  Mr. COBURN. I yield to the gentleman from Illinois.
  Mr. HYDE. Mr. Chairman, I want to suggest to the gentleman from 
Oklahoma (Mr. Coburn) that he has performed a signal service by 
bringing this matter to our attention. Yes, it is in the wake of a jury 
verdict and a court case that happened in Chicago, but he is 
highlighting a problem this Congress has wrestled with for years; 
namely, trying to make some sense out of the RICO statute.
  There are abuses where it is applied where it was never intended to 
be applied. That is recognized by the gentleman from Massachusetts (Mr. 
Frank) and the gentleman from Michigan (Mr. Conyers) and conservatives 
on this side. We need to look at RICO. And so if the gentleman is 
generous enough, and he has been, to withdraw his amendment, I pledge 
the Committee on the Judiciary will take a hard look at revising the 
RICO statute, hold hearings, working in a bipartisan way with the 
minority, and try to come up with a bill that does something 
substantive and correct what we all agree is an egregious flaw.
  Mr. COBURN. Mr. Chairman, I thank the gentleman.
  Mr. FRANK of Massachusetts. Mr. Chairman, if the gentleman will 
continue to yield, we may wind up invoking that great quote from Edward 
G. Robinson in the civil situation, ``is this the end of RICO?''
  Mr. HYDE. That is from Little Caesar, and I remember it well. The 
gentleman and I are the only two.
  Mr. COBURN. Mr. Chairman, I ask unanimous consent that the amendment 
be withdrawn.
  The CHAIRMAN pro tempore. Is there objection to the request of the 
gentleman from Oklahoma?
  There was no objection.
  The CHAIRMAN pro tempore. Are there further amendments to the bill?
  If not, the question is on the committee amendment in the nature of a 
substitute, as modified.
  The amendment in the committee nature of a substitute, as modified, 
was agreed to.
  The CHAIRMAN pro tempore. Under the rule, the Committee rises.
  Accordingly, the Committee rose; and the Speaker pro tempore (Mr. 
Snowbarger) having assumed the Chair, Mr. Rogers, Chairman pro tempore 
of the Committee of the Whole House on the State of the Union, reported 
that that Committee, having had under consideration the bill (H.R. 
1252) to modify the procedures of the Federal courts in certain 
matters, and for other purposes, pursuant to House Resolution 408, he 
reported the bill back to the House with an amendment adopted by the 
Committee of the Whole.
  The SPEAKER pro tempore. Under the rule, the previous question is 
ordered.
  Is a separate vote demanded on any amendment to the committee 
amendment in the nature of a substitute adopted by the Committee of the 
Whole? If not, the question is on the amendment.
  The amendment was agreed to.
  The bill was ordered to be engrossed and read a third time, was read 
the third time, and passed, and a motion to reconsider was laid on the 
table.

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