Congressional Record, Volume 144 Issue 100 (Thursday, July 23, 1998)

[Congressional Record Volume 144, Number 100 (Thursday, July 23, 1998)]
[Senate]
[Pages S8815-S8825]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 1999

The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of the Commerce-Justice-State appropriations bill,
S. 2260, which the clerk will report.
The assistant legislative clerk read as follows:

A bill (S. 2260) making appropriations for the Departments
of Commerce, Justice and State, the Judiciary, and related
agencies for fiscal year ending September 30, 1999, and for
other purposes.

The Senate resumed consideration of the bill.
Pending:

Kyl/Bryan amendment No. 3266, to prohibit Internet
gambling.
Craig modified amendment No. 3268 (to amendment No. 3266),
to clarify that Indian gaming is subject to Federal
jurisdiction.

Amendment No. 3268

The PRESIDING OFFICER. Under the previous order, there will now be 10
minutes for debate, divided in the usual form, on amendment No. 3268,
offered by the Senator from Idaho, Mr. Craig.
Mr. KYL. Mr. President, since Senator Craig is not here, without
impinging on the time, I ask unanimous consent that the Presiding
Officer, Senator Coats, as well as Senators Enzi, Bond, and McConnell,
be added as cosponsors of the amendment of the Senator from Nevada and
myself.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, perhaps Senator Craig would like to call for
a vote on both his amendment and the underlying amendment. I ask for
the yeas and nays on my amendment.
The PRESIDING OFFICER. Without objection, it is in order to request
the yeas and yeas.
Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. CRAIG. Mr. President, I join the Senator and ask for the yeas and
nays on the Craig amendment.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.

[[Page S8816]]

The yeas and nays were ordered.
Mr. CRAIG. Mr. President, I understand each side has 5 minutes. If
the desk will notify me when I have used 2 minutes.
Mr. President, my amendment to the Kyl amendment attempts to clarify
what I think is important that we do. The Indian Affairs Committee has
the authority to hold hearings to move legislation, to bring it to the
floor as it relates to Indian gaming. We created IGRA, the Indian
Gaming Regulatory Act, and the National Indian Gaming Commission for
the purpose of regulating Indian gaming. Indian gaming is regulated.

But the Senator from Arizona, without hearings on this in the
authorizing committee, steps in and makes significant changes in the
Indian gaming law. Now, the Senator from Arizona and I agree that
gaming ought to be regulated; it ought to be controlled, the access
ought to be controlled. We want it limited. But in this case, it isn't
a matter of limiting, it is a matter of outlawing, stopping something
that is already out there, already working, already has stood the test
of officialdom, and we believe it meets those standards, and that is
the National Indian Lottery. So I hope that my colleagues will stand
with me in saying we want regulation and control.
The PRESIDING OFFICER. The Senator has 3 minutes remaining.
Mr. CRAIG. I appreciate that. We don't want this kind of stepping in
and simply wiping out, with the appropriate committee not holding a
hearing to understanding what is exactly going on. That is the intent
of my amendment--to maintain the integrity of the National Indian
Gaming Commission and the recognition of the relationships between the
Indian Nations and the United States itself and the treaty relationship
that is clear and has been well established.
I retain the remainder of my time.
Mr. KYL. Mr. President, I yield time to the Senator from Wyoming.
The PRESIDING OFFICER. The Senator from Wyoming.
Mr. ENZI. Mr. President, I oppose the Craig amendment, which will
change gambling in the United States as we currently know it. It will
give legal validity to the claims that the tribes have that they can
provide gambling all over the United States. They cannot; it is
illegal. This amendment would give them a monopoly on the Internet in
every home in America, without any age discrimination. That is the
reason we require it to be on premises, so we can check to see if kids
are gambling. This will eliminate enforcement in States like mine where
we have had a referendum on gambling.
It was defeated 2-to-1 in every single county in our State. We do not
want gambling in Wyoming. We defeated it soundly. This would allow
gambling in Wyoming. This would give national legal validity. This will
replace lotteries across the State, when they can finally advertise it
to the extent that they really want to do it. This will provide for
eventual, complete electronic gambling for every home in America,
without any State being able to oppose it.
I ask you to oppose the Craig amendment and support the Kyl
amendment.
Mr. KYL. Mr. President, I am pleased to yield 1 minute to the Senator
from New Jersey.
Mr. TORRICELLI. Mr. President, I am in support of Senator Kyl, but I
must state my objection to Senator Craig's amendment.
In my career in the U.S. Congress, representing Atlantic City, I have
never risen on the floor to oppose gaming. But this is too much. All of
our communities have a right to decide when and where we want gaming.
We restricted it to one city in New Jersey. Under Senator Craig's
amendment, every living room, every child's bedroom in America will
become a gaming parlor. The Internet will bring gaming to children, and
it won't be restricted to problem gamers. There will not be any
control. If we want to have Indian tribes having Indian gaming, let
them do it on their reservation. That is their right, their
sovereignty. But my State has sovereignty, too. We have decided not to
allow gaming in every community. Some States, like Utah, and many of
your States, have decided not to have it at all. Now it will be imposed
upon you with a monopoly of gaming on the Internet, available to
everyone. I urge my colleagues to defeat the Craig amendment.
Mr. INOUYE. Mr. President, I rise to address some of the statements
that were made in our debate last evening on Senator Craig's amendment
on Senator Kyl's amendment on internet gaming.
First, Mr. President, I want to make clear that the amendment we
propose absolutely would not exempt Indian tribal governments and
Indian gaming from the purview of the Internet Gaming Prohibition Act.
Rather, the amendment allows only the conduct of those games with the
application of technology--not internet technology--but the application
of television and satellite-generated technology that we envisioned
could be used for the conduct of bingo or games that are subject to a
tribal-state compact under the Indian Gaming Regulatory Act.
The language on page eleven of Senator Kyl's amendment makes it
abundantly clear that each person placing or receiving or otherwise
making a bet or wager must be physically located on Indian land and
that class III games must be conducted consistent with a tribal-state
compact and only in the state to which the compact applies.
So we are not proposing to exempt Indian gaming from the internet
gaming prohibitions outlined in Senator Kyl's amendment.
Secondly, I would want my colleague from Arizona to know that as we
read it, there is an ambiguity in the amendment.
States are authorized to enforce the provisions of this amendment,
should it become law, for violations by a person.
The term ``person'' includes ``any government''--which must refer to
tribal governments, because all other levels of government are
specifically mentioned.
Thus, while one section of the bill would restrict state authority to
what is provided in tribal state compacts, another section of the bill
gives states broad authority to enforce the act as it may relate to the
conduct of tribal governments.
Senator Craig's amendment would simply preserve the status quo and
maintain the integrity of the pervasive federal regulatory scheme in
which federal criminal laws are enforced by the United States on Indian
lands--a framework, which as I said last evening, has been in place for
over one hundred years.
I thank my colleague from Idaho and I wish to assure my colleague
from Arizona that I look forward to continuing to work with him as this
bill proceeds to conference to address these two matters that I have
outlined.
The PRESIDING OFFICER. Who yields time?
Mr. KYL. Mr. President, I inquire how much time remains.
The PRESIDING OFFICER. The Senator has 2 minutes 40 seconds.
Mr. KYL. I yield 1 minute 20 seconds to the Senator from Nevada.
The PRESIDING OFFICER. The Senator from Nevada is recognized.
Mr. BRYAN. Mr. President, I thank my colleague from Arizona.
Mr. President, I rise in opposition to the Craig amendment. Three
million children in America today are on line on the Internet. By the
year 2000, 15 million children will be on the Internet.
Senator Kyl and I have offered an amendment which takes a public
policy which I think every parent in America will support; that is, to
prohibit gambling on the Internet. There simply is no way to control
access to the Internet and to the types of gambling that are offered.
If the Craig amendment is adopted, that policy is effectively
emasculated.
I join with the junior Senator from Arizona in asking this body to
defeat the amendment because every child and every home in America that
is on the Internet will have access to gambling on the Internet.
My view is that there is no public policy that would support, in
effect, a carve-out to say that we prohibit gambling on the Internet in
America for everyone except Indian tribes. That makes no sense, may I
respectfully submit to the Presiding Officer and to my colleagues.
If you believe, as Senator Kyl and I do, that Internet gambling
should be regulated and that we should not have

[[Page S8817]]

access to Internet gambling by children, vote against the Craig
amendment.
I thank the Chair.
Mr. KYL. Mr. President, the Senator from Idaho wishes to close.
Therefore, let me reiterate the key points that the Senator from New
Jersey, and also the Senators from Wyoming and Nevada, have made; that
is, that you cannot have any exceptions to a national prohibition on
Internet gambling if you want the policy to work, because if anyone can
do it, then the gambling can occur in the homes, in the privacy of the
homes around this country by children, by problem gamblers, or by
anyone else if there is any exception because the Internet reaches
across interstate boundaries. It knows no boundaries. It reaches into
any State. And no State can protect its citizens and protect its public
policy of outlawing this activity.
I want to make it very clear that this activity is not being
conducted legally today.
In a letter written by the State attorneys general, including the
attorney general of Idaho on this precise point, the attorneys general
said,

If Internet gaming is allowed to facilitate the remote
placing of bets on an Indian gaming activity, the ultimate
absurdity would result. The logical consequence of such a
position is that any off-reservation telephone, computer with
a modum et cetera, would become a gambling device by which
the consumer could communicate with the tribe for the purpose
of gambling.

And they specifically refer to the Coeur d'Alene Tribe in Idaho,
which is the tribe that the Senator from Idaho wants to permit to
gamble.
I urge a vote against the Craig amendment.
Mr. CRAIG addressed the Chair.
The PRESIDING OFFICER. The Senator from Idaho is recognized.
Mr. CRAIG. Mr. President, the Senator from Arizona quotes a letter
crafted in 1992. Since that time, the tribe in the State of Idaho has a
compact that has been established. The attorney general of the State of
Idaho believes this is significant.
The topic of children is an interesting item. The Presiding Officer,
I and everyone else is very concerned with children's access to the
Internet. We recognize the need to provide legislation to block that,
and we should.
What I am talking about is something that is already official, that
is already underway, and we have not heard a great hue and cry about
the damaging of or the destruction of children.
There is something else that is interesting.
We heard from New Jersey and we heard from Nevada. They are
protecting their big gaming interests. There are already exceptions in
this bill.
There are five exceptions in this bill to use the Internet system to
traffic information about gaming.
The Senator is not pure on this. Let's be real, and let's be honest
about it. Let's use the committees we have. Let's use the law, the
rules, and regulations to govern, control, and regulate Indian gaming
structured in a certain way to protect it so that children don't have
access to it; so that there is an official screening process; that it
is effectively monitored and controlled.
I agree that we ought to control the Internet system, and we ought to
make sure that there is not unlimited access. That is exactly what we
are trying to do here today.
But let's not destroy the laws that we have created for Native
Americans in this country--the controls, and the regulatory system that
is established out there.
We heard from the former chairman of the committee. We have already
heard from the chairman of the committee. He is saying no hearings were
held. A Senator from outside the committee reaches in and changes
substantially the structure of the IGRA law and the National Indian
Gaming Commission law.
What I am telling you this morning is that you have an option to keep
whole the law of the land, which we crafted to control Indian gaming,
while at the same time protecting the Internet from open access from
offshore gaming from the kind of things that the Senator from Arizona
has an absolute right to be concerned about. I, too, am concerned, and
I hope that my colleagues will join with me in voting for the Craig
amendment to protect the integrity of the Indian Gaming Commission, and
the national Indian gaming law that we have established.
With that, I yield the remainder of my time.
Mr. LOTT addressed the Chair.
The PRESIDING OFFICER. The majority leader.
Mr. LOTT. Mr. President, what is the situation now? Are we prepared
to go to that vote unless I use leader time at this point?
The PRESIDING OFFICER. The Senator is correct.
Mr. LOTT. I give myself such leader time as I might use. I will be
brief, because I know Members are expecting to vote right away.
But I rise to speak against the Craig amendment. I have a long
history of being interested in and concerned about the rights and
guarantees that we have given Indian tribes. We have one in my home
State that has been very industrious. They are really good
entrepreneurs and good citizens. I enjoy working with them very much.
But this is something beyond that. This would give them ability to get
into Internet gambling in a way that it could go into every school and
every home all across America.
This is not about tribal rights on their reservation or within their
tribal areas. This goes across America. To have a special carve-out for
Indian tribes on gambling, I think, is just a fundamental mistake.
I understand why the Senator from Idaho feels he must do that. I
understand that there have been some court actions about it. But I also
think there is a fundamental principle here. And this violates that
principle. They should not be given an opportunity that nobody else in
America would have. It touches all Americans.
I am always hesitant to rise in opposition to my friend and my
coleader in the Republican Party. But I think in this instance he is
just fundamentally wrong.
I urge colleagues to vote against the Craig amendment.
I yield the floor.
The PRESIDING OFFICER. The question is on agreeing to the amendment
of the Senator from Idaho. On this question, the yeas and nays have
been ordered, and the clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 18, nays 82, as follows:

[Rollcall Vote No. 228 Leg.]

YEAS--18

Biden
Boxer
Campbell
Cochran
Craig
D'Amato
Daschle
DeWine
Domenici
Harkin
Inouye
Johnson
Kempthorne
Kerrey
McCain
Moynihan
Stevens
Wellstone

NAYS--82

Abraham
Akaka
Allard
Ashcroft
Baucus
Bennett
Bingaman
Bond
Breaux
Brownback
Bryan
Bumpers
Burns
Byrd
Chafee
Cleland
Coats
Collins
Conrad
Coverdell
Dodd
Dorgan
Durbin
Enzi
Faircloth
Feingold
Feinstein
Ford
Frist
Glenn
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Jeffords
Kennedy
Kerry
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lott
Lugar
Mack
McConnell
Mikulski
Moseley-Braun
Murkowski
Murray
Nickles
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Santorum
Sarbanes
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Thomas
Thompson
Thurmond
Torricelli
Warner
Wyden
The amendment (No. 3268) was rejected.
Mr. FORD. Mr. President, I move to reconsider the vote by which the
amendment was rejected.
Mr. BRYAN. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

Amendment No. 3266

The PRESIDING OFFICER. The Senate now will have 2 minutes, under the
previous agreement, for debate on the Kyl amendment.
The Senator from Arizona is recognized.
Mr. KYL. Thank you, Mr. President.
Mr. President, I thank everyone for the last vote.
The point is, if you are going to ban an activity because the public
policy of all 50 States is that their children and

[[Page S8818]]

the families in those States should be protected from this activity, if
you ever allowed one exception, then because of the nature of the
Internet, you wouldn't have a bill.
I appreciate that, and I think that clears the way for passage of the
Internet Gambling Prohibition Act. I note for the Record some of the
organizations that support this legislation: Ralph Nader's Public
Citizen, the Christian Coalition, the Focus on the Family and Family
Research Council, National Coalition Against Legalized Gambling and
Against Gambling Expansion.
Mr. FORD. Mr. President, may we have order?
The PRESIDING OFFICER. The Senator is correct. Will Members please
cease all conversations?
Mr. KYL. Mr. President, sports organizations, in particular, are
obviously very much afraid of the adulteration of professional and
amateur sports. As a result, groups like the National Amateur Athletic
Association, Major League Baseball, NFL, NBA, National Hockey League,
National Soccer League, and, of course, law enforcement and all 50
States attorneys general support this legislation. In fact, it is
because of them that we are proposing it. We can't protect the citizens
of our States unless we have legislation of this kind.
Mr. McCONNELL. Mr. President, I commend Senator Kyl for his hard work
and determination in bringing S. 474 to the floor today. I am most
appreciative that during the process, you have worked closely with
several parimutuel industry groups to make certain that S. 474 does not
unduly restrict Internet commerce. The bill reflects a clear
understanding of this emerging medium and its potential for both honest
and unscrupulous purposes.
Mr. KYL. Thank you, Senator McConnell.
Mr. McCONNELL. Mr. President, I wish to engage the Senator from
Arizona in a short colloquy. This is a complicated bill. It addresses
areas where technology is rapidly evolving. Some of my questions may be
fairly arcane and will be of interest only to those intimately familiar
with the intricacies of the interstate simulcasting of horse racing so
I ask that my fellow members be patient with us as we work our way
through some of these issues.
Senator Kyl, as you are well aware, there are a myriad of federal and
state laws and regulations that impact interstate simulcasting. In
every instance, I will assume that we are addressing only the
application of the language of S. 474 and not the general legality of
any specific example given. With that understanding, I will proceed
with the first of my questions.
Senator Kyl, am I correct that S. 474 does not apply to racetracks
that may advertise or make past performances, how-to-bet, promotional,
and other similar kinds of information available whether via a
racetrack World Wide Web site on the Internet or other technological
media.
Mr. KYL. The Senator is correct.

information assisting in placing a bet or wager

Mr. McCONNELL. Senator Kyl, I now want to discuss the impact of S.
474 on the current practice of the horse racing industry commonly
referred to as ``simulcasting and commingling of parimutuel pools.''
Simulcasting of horse racing across the country and around the world
has grown exponentially in recent years, to the point that simulcasting
now accounts for as much as 60 percent of the industry's total
wagering.
To foster growth in the simulcasting market, tracks now routinely
merge or commingle the parimutuel pools from several tracks and off
track parimutuel facilities into common parimutuel pools. Current odds
and winning payoffs are then calculated using a totalizator system.
Commingling is a practice preferred by bettors because it increases
pool sizes and thus helps to minimize the fluctuation of odds and
payoffs.
Any diminution in its current ability to simulcast or commingle pools
could have catastrophic effects on the parimutuel industry.
Mr. KYL. Senator McConnell, I assure you S. 474 is not intended to
limit the racing industry's activities in the area of simulcasting and
commingling of parimutuel pools.
Mr. McCONNELL. Senator Kyl, I appreciate your willingness to consider
the parimutuel industry. Now, if I may clarify a few more points.
Section 2 of the bill exempts four categories from the definition of
``information assisting in the placing of a bet or wager.'' My next few
questions relate to the applicability of these provisions.
First, Senator Kyl, as to the first category of exempt information,
found in subsection (8)(C)(i), am I correct in assuming that ``common
pool parimutuel pooling'' and ``commingling of parimutuel pools'' are
two names for the same process--the merging of parimutuel pools from
two or more locations for purposes of calculating the odds and payoffs?
Mr. KYL. Yes, you are correct.
Mr. McCONNELL. Senator Kyl, according to subsection (8)(C)(i) in
section 2 of the bill, information concerning parimutuel pools that is
exchanged between certain racetracks or other parimutuel facilities is
exempted from the prohibition on ``information assisting in the placing
of a bet or wager'' so long as that information is ``used only to
conduct common pool parimutuel pooling.'' Does this mean that a
racetrack or other parimutuel facility may accept wagers on races run
at another facility (known as the Host Track), whether the Host Track
is located within the same state or in another state or foreign
country, and commingle its parimutuel pools into the parimutuel pools
at the Host Track?
Mr. KYL. Yes, commingling of wagers as you describe is permitted by
S. 474. However, each facility that participates in the pools must be
licensed by the state or approved by the laws of the foreign
jurisdiction in which it operates.
Mr. McCONNELL. What if the Host Track located in one state utilizes a
totalizator system located in a second state or even a foreign
country--could a racetrack or parimutuel facility located in either the
host state or a third state commingle wagers on races run at the Host
Track into the parimutuel pools at the Host Track without violating S.
474?
Mr. KYL. Yes, assuming each facility that participates in the pools
is duly licensed by the State or approved by the laws of the foreign
jurisdiction in which it operates. Subsection (8)(C)(ii) states that
``information exchanged between'' certain racetracks or other
parimutuel facilities and ``a support service located in another State
or foreign jurisdiction'' is not considered ``information assisting in
the placing of a bet or wager'' if ``the information is used only for
processing bets or wagers made by or with that facility under
applicable law.''
The location of the totalizator or other similar system used to
process parimutuel pools is irrelevant if the parimutuel pools are
transmitted from and received by facilities each of which is licensed
by the State or approved by the laws of the foreign jurisdiction in
which it operates.
Similarly, commingling may require the use of data transmission or
phone lines that pass through numerous states. In such event, it is
irrelevant whether parimutuel wagering is legal in all such states. The
only relevant inquiry is whether each of which is licensed by the State
or approved by the laws of the foreign jurisdiction in which it
operates.
The term ``support system'' should be read broadly to mean any system
or service necessary to transmit or process information related to the
commingling of parimutuel pools, including totalizator systems,
telephone lines, and other similar technological devices essential to
the commingling process.
Mr. McCONNELL. What if the host for the wagering pools is in one
state or foreign country, the totalizator is in a second state or
foreign country, and the race is actually contested in a third state or
foreign country. Could commingling of pools take place under this
arrangement without violating S. 474?
Mr. KYL. Yes, assuming each facility that participates in the pools
is duly licensed by the State or approved by the laws of the foreign
jurisdiction in which it operates. As I states earlier, the location of
the totalizator or other similar system used to process parimutuel
wagers is irrelevant if the parimutuel pools are transmitted to or from
facilities each of which is licensed by the State or approved by the
laws of

[[Page S8819]]

the foreign jurisdiction in which it operates.
Mr. McCONNELL. Senator Kyl, the phrase ``approved by the foreign
jurisdiction in which the facility is located'' is used throughout
subsection (8)(C). In some foreign countries, the law may simply permit
simulcasting and commingling of pari-mutuel pools without requiring
formal approval by a regulatory authority. I presume that in such
cases, S. 474's approval requirement will be satisfied.
Mr. KYL. Senator McConnell, you are correct.

account and interactive wagering

Mr. McCONNELL. Senator Kyl, I would like to discuss the impact of S.
474 on account wagering. It is presently legal, and operating to
varying degrees, in eight states. Other states are presently
considering this form of wagering on racing. The horse racing industry
wants to be able to continue account wagering and other similar
activities that utilize emerging technologies. A variety of federal and
state statutes and regulations now govern this activity and together,
they form a capable regulatory system for parimutuel wagering. Again,
any restriction on the current regulatory structure might unduly hamper
one of racing's most promising areas for growth.
Mr. KYL. Senator McConnell, what I stated earlier with respect to
simulcasting and commingling of parimutuel pools applies equally to
account wagering. This bill is not intended to hamper the future growth
of horse racing.
Mr. McCONNELL. Senator Kyl, again, I appreciate your willingness to
consider the parimutuel industry. Now, if I may clarify a few more
points.
Section 3 of the bill broadly prohibits both individuals and persons
engaged in a gambling business from placing, receiving, or otherwise
making a bet or wager through the Internet or any other interactive
computer service. Then, subsection (e) of that section grants two
exceptions related to racing: one is an exception for wagers placed by
persons physically present at a racetrack or parimutuel facility; a
second exception is provided for persons placing, making, or receiving
a parimutuel wager on a ``closed-loop subscriber-based service that is
wholly intrastate.''
My first question is this. Am I correct in my analysis that S. 474
does not prohibit or restrict account wagering by telephone?
Mr. KYL. Yes, the bill does not address telephone account wagering.
Mr. McCONNELL. Am I correct that an interactive account wagering
system that uses a variety of communications media and computer
technology to present audio and/or video information about the races to
the home and to communicate wagers from the home to a racetrack or
parimutuel facility constitutes an ``interactive computer service.''
Mr. KYL. Yes.
Mr. McCONNELL. Will such an interactive account wagering system that
accepts wagers only from account holders physically located within the
same state as the facility where the account wagering system originates
pass muster under section 3 of S. 474?
Mr. KYL. Yes, assuming the interactive account wagering system meets
the requirements for a ``closed loop subscriber-based service'' as
defined in section 3 of the bill.
Mr. McCONNELL. Senator Kyl, does a person have to be physically
present at a facility that is open to the public to make a lawful
interactive account wager?
Mr. KYL. Again, so long as the person placing the wager is doing so
using a ``closed-loop subscriber-based service'' the person is not
required to be physically present at a facility that is open to the
public to make a lawful wager.
Mr. McCONNELL. What if the facts are the same as my first interactive
account wagering question (i.e., both customer and facility are
physically present in the same state) but the race on which the account
holder is wagering is being contested in another state or foreign
country and the facility where the account wagering system originates
is commingling its pools, including its account wagering pools, into
the pools of the out-of-state host track where the race is being run.
Will this fit within the exceptions found in Section 3 of S. 474?
Mr. KYL. Yes, assuming of course that the wagering pools are being
commingled in accordance with section 2 of the bill and further
assuming the account wagering system meets the requirements for a
``closed loop subscriber-based service.''
Mr. McCONNELL. Senator Kyl, just a few more questions and we will be
finished.
In section 3, Section 1085(e)(2) of the bill, you prohibit the use of
an agent or proxy to place wagers unless the agent or proxy is acting
on behalf of a licensed parimutuel facility ``in the operation of the
account wagering system owned or operated by the parimutuel facility.''
What if a facility licensed to operate an account wagering system
engages a separate company to provide the technical expertise necessary
to implement an interactive account wagering system on its behalf.
Would such an agency fall within the scope of the permitted agency
provisions of the bill referenced above?
Mr. KYL. Yes, such a system is an allowed agent, assuming, of course,
the interactive account wagering system meets the requirements for a
``closed-loop subscriber-based service that is wholly intrastate.''
Mr. McCONNELL. thinking back to our earlier discussion of a ``support
service,'' what if the facility where the interactive account wagering
system originates chooses to utilize support services such as a
totalizator system or an interactive computer system located in a
second state or even a foreign country to service the account holders.
Mr. KYL. The use of such support services does not change the result
assuming the account wagering system meets the requirements for a
``closed loop subscriber-based service that is wholly intrastate.'' As
stated previously, the location of the totalizator, path of the phone
lines, or the site of other similar support systems is irrelevant.

enforcement

Mr. McCONNELL. Finally, Senator Kyl, section 4 of the bill spells out
in great detail the civil remedies available to U.S. Attorneys and
State Attorneys General to enforce the provisions of S. 474. Section 5
likewise calls for the Secretary of State, in consultation with the
Secretary of the Treasury, the Attorney General of the United States
and the Secretary of Commerce, to commence negotiations with foreign
countries in order to conclude international agreements that would
enable the United States to enforce the bill.
Nonetheless, many are concerned that this legislation will be
difficult to enforce. If the only entities that obey it are the
legitimate, state-licensed parimutuel operators, which they will, while
others outside the jurisdictions of the federal and state authorities
do not, then you still have the potential for consumer fraud while not
producing any revenues for the federal government, state governments or
the racing industry itself.
Mr. KYL. Senator McConnell, I am confident that the Justice
Department and the National Association of Attorneys General will
vigorously enforce this legislation.
Mr. McCONNELL. Senator Kyl, once again I thank you and your staff for
your hard work and tenacity in bringing this issue before the Senate. I
also thank you for your patience in working through these very
complicated issues.
Mr. KYL. Senator McConnell, you are welcome. I am very pleased that
we have been able to work together to protect legitimate, law abiding
interests who make significant contributions to the nation's economy.
Mr. LEAHY. Mr. President, I have long been an advocate for
legislation that ensures that existing laws keep pace with developing
technology. It is for this reason that I have sponsored and supported
over the past few years a host of bills to bring us into the 21st
Century. These bills have included the National Information
Infrastructure (NII) Protection Act of 1995; the Criminal Copyright
Improvement Act of 1997; the WIPO Copyright and Performances and
Phonograms Treaty Implementation Act of 1997; the Digital Millennium
Copyright Act of 1998; and legislation that passed the Senate on June
26, 1998, to authorize the comprehensive independent study of the
effects on trademark and intellectual property rights holders of adding
new generic top-level domains and related dispute resolution
procedures.

[[Page S8820]]

This same impetus underlies my support of legislation to ensure our
nation's gambling laws keep pace with developing technology,
particularly the Internet. The Department of Justice has noted that
``the Internet may have diminished the effectiveness of current
gambling statutes, in part because existing laws may relate only to
sports betting and not the type of interactive gambling (e.g., poker)
that the Internet makes possible.'' Vermonters have spoken very clearly
that they do not want certain types of gambling permitted in the state,
and they do not want current laws to be rendered obsolete by the
Internet. I believe, therefore, that there is considerable value in
updating our Federal gambling statutes, and I have been pleased to work
with Senator Kyl on his legislation intended to accomplish that goal,
the Internet Gambling Prohibition Act of 1998.
The legislation has been improved since it eas reported out of
committee.
The Senate Judiciary Committee reported out the bill on October 23,
1997. Although I voted in favor of the legislation at that time, I
noted that I had several concerns about the bill and that I wished to
work with Senator Kyl and others to address these concerns.
The bill as originally drafted might have inadvertently outlawed the
tri-state lottery that is run by the states of Vermont, New Hampshire
and Maine. Although Vermonters have clearly indicated that they do not
want many other forms of gambling, they do want to maintain this tri-
state lottery, which has been in operation since 1985.
The legislation now under consideration states that the prohibitions
against Internet gambling in the bill shall not apply to any otherwise
lawful bet or wager that is placed, received, or otherwise made for a
multi-state lottery operated jointly between two or more States in
conjunction with State lotteries, if the lottery or activity is
expressly authorized and licensed or regulated under Federal or
applicable State law.
I would like to thank the office of Vermont's Attorney General for
working with Senator Kyl and me to craft this language to ensure that
Vermont, New Hampshire and Maine's tri-state lottery remains a
permissible activity under this bill.
As originally introduced, the bill contained Sense of the Senate
language that the Federal Government should have extraterritorial
jurisdiction over the transmission to or receipt from the United States
of bets or wagers, information assisting in the placing of bets or
wagers, and any communication that entitles the transmitter or
recipient to the opportunity to receive money or credit as a result of
bets or wagers.
That provision was changed, and when the bill was reported out of the
Judiciary Committee, the Sense of the Senate provision was replaced
with a requirement that not later than six months after the date of
enactment, certain Administration officials would be required to
commence negotiations with foreign countries in order to conclude
international agreements that would enable the United States to enforce
the bill.
I was concerned about the constitutionality of this new requirement
mandating that the Executive Branch undertake international
negotiations, particularly in light of the decision of the 1993 U.S.
Court of Appeals for the Ninth Circuit in Earth Island Institute versus
Christopher. The court in this case held unconstitutional a portion of
a statute which directed the Secretary of State to initiate
international negotiations regarding the protection and conservation of
a certain species of sea turtles.
Specifically, the court held this type of directive to intrude upon
the conduct of foreign relations by the Executive Branch on the grounds
that the ``Constitution commits the power to make treaties to the
President.''
The Department of Justice also recommended the deletion of this
section. As Anthony Sutin, Acting Assistant Attorney General, stated in
his May 28, 1998, letter to me on this legislation:

If we request that foreign countries investigate, on our
behalf, conduct that is legal in the foreign state, we must
be prepared to receive and act upon foreign requests for
assistance when the conduct complained of is legal, or even
constitutionally protected, in the United States.
For example, if we ask a foreign country to investigate an
activity (e.g., gambling) that is legal in the foreign state,
that country may, for example, ask us to investigate
constitutionally protected speech originating on computers
based in the United States (e.g., that arguably violates that
nation's ``hate speech'' laws). Considering all of the
challenges facing law enforcement in the information age, we
believe that current efforts should focus on conduct which
either is, or should be, universally condemned.

Senator Kyl agreed to my request that this section of the bill be
deleted, and I believe that the legislation is considerably improved
for that reason.
Another constitutional concern was raised by earlier versions of the
bill that stated that ``information assisting in the placing of a bet
or wager''--``(A) means information that is intended by the sender or
recipient to be used by a person engaged in the business of betting or
wagering to accept or place a bet or wager; (B) includes any
information that invites the information described in subparagraph (A)
to be transmitted;'' and then included some exceptions.
I was concerned, as was the Department of Justice, that this language
was vague and might raise constitutional concerns as it might be
construed to apply to persons who do not have the intent to participate
in or assist illegal gambling transactions. Similarly, these earlier
versions of the legislation could have been interpreted to prohibit
Internet advertising of activities that are entirely legal. This
appeared to be an unintentional result of the earlier versions, but one
that raised serious constitutional issues.
The Department of Justice suggested deleting subsection (B)
altogether, and inserting the phrase ``in violation of state or Federal
law'' at the end of subsection (A). The addition of this latter phrase
would ensure that transmission of information assisting in the placing
of legal bets or wagers would not be criminalized by this legislation.
Senator Kyl agreed to delete subsection (B), but he did not add the
phrase ``in violation of state or Federal law'' at the end of
subsection (A). I hope this later suggestion by the Department of
Justice is accepted as the legislation moves through the legislative
process.
In the bill as originally introduced, an individual bettor who was
found guilty of Internet gambling would have been subject to a penalty
of $5,000, one year of prison or both. I thought that penalty was
extreme. If someone places a $1 bingo bet over the Internet, that might
not be activity we want to encourage, but I also do not think we need
to lock that individual up in prison and charge him or her 5,000 times
that amount in penalties. I expressed my view to Senator Kyl, and as a
result he softened the penalty for individual bettors.
As the bill currently reads, the individual bettor would be subject
to (A) fines not more than the greater of (i) three times the greater
of the total amount that the individual is found to have wagered or
received or (ii) $500; (B) 3 months prison; or (C) both. I hope that
prosecutors and judges will use proper discretion when determining,
even under this more reasonable regime, whether to expend federal
resources prosecuting and imprisoning individuals who place de minimis
bets.
The bill as introduced criminalized the activities of those persons
engaged in the ``business of betting or wagering,'' but the bill did
not define what constituted a ``business of betting or wagering.'' I
believe that it is important that if Congress is going to make certain
activities illegal, and subject the executor of that activity to hefty
monetary fines and imprisonment, we need to be very clear about what
activity, exactly, we are making illegal.
The version of the bill that is now under consideration makes it
unlawful for a person engaged in a gambling business for betting or
wagering to use the Internet or any other interactive computer service.
The bill defines the term ``gambling business'' as a gambling business
that involves one or more persons who conducts, finances, manages,
supervises, directs or owns all or part of such business and has been
or remains in substantially continuous operation for a period in excess
of 10 days or has a gross revenue of $2,000 or more during any 24-hour
period.
Although I preferred to use the definition of an ``illegal gambling
business'' found in 18 U.S.C. 1955, I believe

[[Page S8821]]

the bill as it currently reads is an improvement from the original
version, and I appreciate Senator Kyl's willingness to work with me on
this issue.
In addition, language was inserted into the bill which dictates
special rules that would apply in any proceeding instituted under the
bill in which application is made for a temporary restraining order or
an injunction against an interactive computer service. I was not party
to the negotiations on this language, nor am I convinced that this
language is necessary. Courts, when determining the appropriateness of
equitable relief, generally consider factors such as the significance
of the threat of irreparable harm to a plaintiff if the injunction is
not granted; the state of the balance between this harm and the injury
that granting the injunction would inflict on the defendant; the
probability that the plaintiff will succeed on the merits; and the
public interest. It has not, to date, been demonstrated to me why these
traditional standards are not adequate to address situations involving
interactive computer services, and I fear that this new language in the
bill might cause more mischief than it would cure. I hope that we can
continue to work on this language as the bill advances through the
legislative process.
Finally, the Senate has accepted an amendment by Senator Bryan to
include a provision addressing Internet games known as ``sports fantasy
leagues''. I understand that many of the companies that offer these
sports fantasy league games are concerned about the wording of this
provision. I also understand that they will be seeking refinements in
the language as we move through the legislative process, and I look
forward to working with them as well as Senator Bryan and Senator Kyl
in that regard.
Mr. KYL. Mr. President, I want to note that an interactive computer
service whose facilities or service are used by another person as a
means of communication to engage in an activity prohibited by section
1085, and where the interactive computer service does not have the
intent that such facilities or service be used for such illegal
activity, shall not be considered to violate subsection (b)(1)(B).
Mr. KERRY. Mr. President, I would like to direct a few comments to
Senator Kyl's amendment adding the Internet Gambling Prohibition Act to
S. 2260, the Commerce, Justice, State Appropriations bill. I join with
my colleague in opposing unrestricted gambling on the Internet, and I
support the adoption of his amendment. However, there are often a
variety of reasonable approaches to a problem, and we should be careful
not to over-legislate. This is true especially with respect to a vital
new medium like the Internet which promises to be an engine of growth
for our economy and a source of unprecedented benefits to our citizens
for years to come. We need to think carefully before government
commandeers the electronic network, through online service providers,
in the pursuit of conduct we don't like. While I do not object to
asking service providers to cooperate in ways that do not involve
significant expense or retard the growth and flow of Internet traffic,
I am not convinced that the provisions of the current proposal strike
the proper balance. In addition, there is a high risk that we may
inadvertently sap the vitality of the Internet if we start to require
service providers to serve as an arm of our law enforcement agencies.
It is my hope that we can address these concerns as we go to conference
with the House.
Mr. JOHNSON. Mr. President, I rise today in strong support of the
amendment offered by Senators Kyl and Bryan with respect to gambling on
the Internet. I am an original cosponsor of S. 474, the Internet
Gambling Prohibition Act of 1997, as introduced in March of last year.
I also sponsored the House version of this legislation in the 104th
Congress because I am committed to preventing children's access to
gambling on the Internet and the harm to the American public in general
that is sure to follow unregulated gaming.
Gambling in this country has always been a very regulated activity no
matter where it takes place. Unfortunately, we are now faced with a
potential explosion of unregulated gambling--gambling on the Internet.
States have become so concerned about this problem that state
attorney's general nationwide have filed suits against gambling
operators on the Internet. The Kyl-Bryan amendment clearly defines
objectionable internet activity and establishes guidelines for law
enforcement to crack down on those who solicit wagering on-line. The
bill applies existing laws against telephone betting or wagering to all
electronic communications. This Internet gambling ban will be applied
to those who accept bets and those who do the betting.
While the Internet provides our children with many educational
opportunities, we must closely scrutinize the industry to ensure that
children are not let into the world of unregulated gambling. Preventing
children or addicted gamblers from being able to gamble in an
unregulated fashion on their home computer must be one of our highest
priorities as we venture into the new and dynamic area of regulating
electronic commerce.
However, as important as the Internet gambling ban legislation is to
protecting this nation's children, I feel compelled to state my
concerns about the impact of several provisions included in the pending
version of the Internet gambling ban legislation as they may impact
Indian tribes. I want to take this opportunity to express my strong
support for Senator Craig's second degree amendment aimed at addressing
several of these provisions. Under the Kyl amendment, the Indian Gaming
Regulatory Act (IGRA) would be amended without any involvement or input
by the committee of jurisdiction, the Senate Indian Affairs Committee,
or any tribal consultation.
Senator Craig's amendment would make certain that currently lawful
activities fully regulated by the federal government and permitted
under the IGRA are not impacted by the Kyl amendment. I believe the
Craig amendment is not a carve-out or loophole for Indians, but merely
aims to preserve the IGRA process. The Craig amendment does not allow
for any new type of Indian gaming. Our emphasis today ought to focus on
unregulated internet gaming. To the extent that Congress deals with
regulated Indian gaming, it should do so in separate legislation with
tribal input.
Like Senator Craig, I do not want to encourage special treatment or
special exemptions for Indian tribes. I just expect equitable treatment
of currently lawful gaming activities by tribes and, most importantly,
I expect the Senate to respect the committee of jurisdiction on this
issue and invite the input of impacted Indian tribes.
As the Indian tribes in my state will attest, Indian Gaming is a
regulated industry. Poverty, unemployment, poor health and welfare
dominate much of reservation life across the country. With budget cuts
to the BIA and other federal support programs for Indians, Congress
must continue to encourage economic self sufficiency at the tribal
level. If there are shortcomings with the effectiveness of the current
IGRA, they should be addressed with tribal consultation. I am troubled
at the prospect of Internet gambling sites opened by any entity, but
again, so far as this concern deals with already regulated Indian
gaming, it ought to be addressed in separate legislation.
Nationwide, approximately 98 percent of all tribes use the revenue
generated by casinos and bingo operations to provide housing, health
services, and education to tribal members. Federal law requires tribal
governments to use gaming revenue to fund these essential services. It
is properly up to each tribe to determine for itself whether it wants
to permit regulated gaming within its boundaries. Frankly, I would
prefer that other types of economic activity would take hold in Indian
country, but I also recognize that in the eyes of many tribal leaders,
gaming has proven to be the only successful economic growth option that
has worked. Our nation must have tightly regulated Indian gaming, but
the ultimate decision whether to permit gaming on a particular
reservation should be with the tribe itself. I am committed to
protecting the interests of tribes in my state and across the country
as they explore economic development through lawful gaming ventures.
Like many of my colleagues, I realize that this debate is clear
evidence of the pressing need for Congress to revisit

[[Page S8822]]

existing Indian gaming regulations and law. I will urge the Senate
Indian Affairs Committee to continue moving forward on this matter.
Mr. President, as an original cosponsor of S. 474, I am nevertheless
committed to the Internet Gambling Prohibition Act because the bottom
line of this legislation is protecting our citizens and especially our
kids. I am aware that the Justice Department believes overall
enforcement of this law will be difficult, but I feel strongly that the
time has come for Congress to push this issue and instruct Justice to
develop the necessary enforcement capabilities and end unlawful
Internet gambling. I will support the Senators from Arizona and Nevada,
and will work with the Senators and the conferees on this
appropriations bill to address the remaining issues of concern to
tribes.
The PRESIDING OFFICER. The Senator from Delaware is recognized.
Mr. BIDEN. Mr. President, let's get it straight what this does. All
of you came to me and said, ``I can't vote for the Craig amendment
because it expands gambling on the Internet.'' What the Kyl amendment
does is expands gambling.
Right now it is illegal to use the wire to place a bet. U.S. Code 18,
section 1084, Transmission of Wagering Information Penalties. Read it.
I don't have a minute. It is illegal now.
What the Kyl amendment does is make what is now illegal legal for
certain carved-out exceptions which benefit--and there is nothing wrong
with this, depending on your interests--which benefit certain segments
of the gambling industry. That is what this does.
If I had more than a minute, I would explain in more detail. This
expands gambling. It does not cut back on gambling. It expands it. What
is now illegal in certain areas becomes legal.
The PRESIDING OFFICER. The time allocated to the Senator has expired.
Mr. BRYAN. Mr. President, I ask unanimous consent to speak for 1
minute on this issue.
Mr. BIDEN. Reserving the right to object, only if I have a minute in
response.
The PRESIDING OFFICER. Is there objection to the request?
Mr. McCAIN. Objection.
Mr. BYRD. Mr. President, I suggest the absence of a quorum. I would
like to hear an additional minute----
The PRESIDING OFFICER. Objection is heard. The yeas and nays have
been ordered. The clerk will call the roll.
Mr. BYRD. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll to ascertain the
presence of a quorum.
The legislative clerk proceeded to call the roll.
Mr. GREGG. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GREGG. Mr. President, I ask unanimous consent that a minute be
granted to the Senator from Delaware and a minute to the Senator from
Nevada.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
The Senator from Nevada is recognized for 1 minute.
Mr. BRYAN. Mr. President, let me say in response to my good friend,
the able Senator from Delaware, every States attorneys general in
America supports this amendment. Mr. Freeh, the Director of the Federal
Bureau of Investigation, supports this amendment.
Under the current law, Internet gambling is spreading all over. There
are 140 web sites, $1 billion. We seek to close that door. The Kyl-
Bryan amendment seeks to prohibit Internet gambling for everyone--for
everyone--so it is not an expansion of gaming.
We want to take gambling off the Internet so kids, libraries, and
everybody else who can dial up on the Internet these days will not have
access to an Internet gambling site. There are currently 140. That is
twice as many as the year before. A year from now, there will be 500 if
we don't close this hole. The Christian Coalition, everyone from major
league sports teams to the attorneys general to the consumer groups all
support this amendment.
The PRESIDING OFFICER. The time allocated to the Senator has expired.
The Senator from Delaware has 1 minute.
Mr. BIDEN. Mr. President, that is the first part. Read the second
part. It says, a little phrase says exceptions:

Exceptions--Otherwise lawful bets or wagers that are
placed, received or otherwise made wholly interstate for
State lotteries, racing or parimutuel activity.

Exceptions.
Let me point out one other thing. Under current Federal law, it is
illegal to take a bet using a telephone wire, which means that under
current law, basically all Internet gambling is illegal because you use
a wire.
Under the Kyl amendment, it would become legal to take a bet on the
Internet if the States where the bettor placed and received authorized
the bet and the bettor is a subscriber of a gambling company's network.
This is an expansion. Expansion.
If you want to do something about the Internet, strike exceptions,
and I promise you, the sponsors will vote against this. Strike
exceptions. If you don't want any betting using the wire, strike
``exceptions.''
The PRESIDING OFFICER. The time allocated to the Senator has expired.
The question is on agreeing to amendment No. 3266. The yeas and nays
have been ordered. The clerk will call the roll.
The legislative clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 90, nays 10, as follows:

[Rollcall Vote No. 229 Leg.]

YEAS--90

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

NAYS--10

Biden
Craig
Daschle
Domenici
Feingold
Harkin
Inouye
Moynihan
Stevens
Wellstone
The amendment (No. 3266) was agreed to.
Mr. HOLLINGS. Mr. President, I move to reconsider the vote.
Mr. NICKLES. I move to lay the motion on that table.
The motion to lay on the table was agreed to.

Privilege of the Floor

Mr. HOLLINGS. Mr. President, I ask unanimous consent for floor
privileges for Linn Schulte-Sasse, a staffer for the Senator from
Minnesota, Senator Wellstone.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KYL. Mr. President, I thank the National Association of Attorneys
General, especially Attorney General Dan Lungren and Attorney General
Jim Doyle, and Thomas Gede, Traci Sanders, Alan Kesner, and Stephen
Higgins, of my staff, and Andy Vermilye of Senator Bryan's staff for
their assistance in the bill which we have just passed. I appreciate
their efforts very, very much.
Mr. NICKLES. Mr. President, I compliment my colleague from Arizona
and also Senator Bryan from Nevada for their leadership in and passage
of their amendment. I think it is a very important amendment and not an
easy one. I compliment them for doing it.

Amendment No. 3272

(Purpose: To amend certain criminal laws relating to the compensation
of attorneys.)

Mr. NICKLES. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Oklahoma [Mr. Nickles] for himself, Mr.
Inhofe and Mr. Sessions, proposes an amendment numbered 3272.

[[Page S8823]]

Mr. NICKLES. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place in title II, insert the following:

SEC. 2____. COMPENSATION OF ATTORNEYS.

(a) Controlled Substances Act.--Section 408(q)(10) of the
Controlled Substances Act (21 U.S.C. 848(q)(10)) is amended--
(1) by redesignating subparagraphs (B) and (C) as
subparagraphs (C) and (D), respectively; and
(2) by inserting after subparagraph (A) the following:
``(B)(i) Notwithstanding any other provision of law, the
amount of compensation paid to each attorney appointed under
this subsection shall not exceed, for work performed by that
attorney during any calendar month, an amount determined to
be the amount of compensation (excluding health and other
employee benefits) that the United States Attorney for the
district in which the action is to be prosecuted receives for
the calendar month that is the subject to a request for
compensation made in accordance with this paragraph.
``(ii) The court shall grant an attorney compensation for
work performed during any calendar month at a rate authorized
under subparagraph (A), except that such compensation may not
be granted for any calendar month in an amount that exceeds
the maximum amount specified in clause (i).''.
(b) Adequate Representation of Defendants.--Section
3006A(d)(3) of title 18, United States Code, is amended--
(1) by striking ``Payment'' and inserting the following:
``(A) In general.--Subject to subparagraph (B), payment'';
and
(2) by adding at the end the following:
``(B) Maximum payments.--The payments approved under this
paragraph for work performed by an attorney during any
calendar month may not exceed a maximum amount determined
under section 408(q)(10)(B) of the Controlled Substances Act
(21 U.S.C. 848(q)(10)(B)).''.
The PRESIDING OFFICER. There are 10 minutes equally divided on this
amendment. The Senator from Oklahoma is recognized.
Mr. NICKLES. The amendment I send to the desk on behalf of myself,
Senator Inhofe, and Senator Sessions would try to bring some balance on
what we pay for court-appointed attorneys in Federal death penalty
cases. Right now, we find out that in a case conducted in Colorado, the
so-called McVeigh case, Oklahoma City bombing case, the defense
attorneys--these are court-appointed, taxpayer-financed attorneys--are
compensated at a rate much higher than we pay U.S. attorneys.
I wasn't aware of this. I didn't know about it until the U.S.
attorneys from Oklahoma mentioned to me that in some cases court-
appointed defenders are paid at rates maybe three, four, or maybe five
times as much as they are paid.
Just to give you the figures, the U.S. attorneys in most places
around the country are paid $118,000.
A court-appointed defense attorney is paid $125 an hour. In some of
these cases, like the Oklahoma City bombing case, it is not
unreasonable that they might work 80 hours or more per week. That means
they make $10,000 a week. A U.S. attorney makes $10,000 a month--
actually, a little less than that. So the essence of this amendment is
that we should not compensate court-appointed attorneys more than we
pay U.S. attorneys. I might mention that in the Oklahoma City case, we
had a court-appointed attorney and I think 13 assistants, all of whom
would be eligible to receive these large sums.
So I thank my colleague, Senator Sessions, who is a former U.S.
attorney, and also my colleague, Senator Inhofe. I hope we can adopt
this amendment.
Mr. GREGG. Mr. President, I rise in support of the amendment. I think
it is an excellent amendment. It is an issue that we have raised a
number of times at the subcommittee level with the judges. We are not
only concerned about the reimbursement schedules being skewed, but we
are especially concerned about the fact that in capital crimes we are
spending an extraordinary amount of money on defense counsel--over a
million dollars in many instances. That comes right out of the
taxpayers' pockets. It is very difficult and it skews the entire
ability to do other defense work because of how much money is pouring
into the capital crime area.
This specific amendment is right on target. I strongly support it. I
hope we will not have to go to a vote on it, but if we do, I hope we
can agree to this.
Mr. HOLLINGS. Mr. President, Senator Leahy of Vermont is presently
conducting a hearing, and he is in opposition to this. He is unable to
be here to speak at this time.
I am persuaded by the Senator from Oklahoma.
I yield whatever time is necessary to the Senator from New Mexico.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, let me just state my understanding of
this. When I was in private practice--and I don't pretend to know the
details of all the circumstances the Senator from Oklahoma is talking
about, but when I was court appointed to handle a case, I was expected,
through that hourly fee that was granted to me, to cover all of my
costs, which meant the costs of my office, costs of my assistants, the
costs of everything.
Frankly, the hourly fee I got for court-appointed work was
substantially less than the hourly fee I got for any other work. And I
assume that is still the case. So I think to make the comparison he is
making and say the U.S. attorney gets $118,000 and the court-appointed
attorney gets $125 per hour, and that we should try to make a
comparison there, I think it is really very much apples to tangerines
because, in fact, the U.S. attorney has a tremendous office
arrangement, with support of all kinds, in addition to his salary,
whereas the court-appointed attorney gets none of that.
Mr. NICKLES. If the Senator will yield, I want to make clear that
what we are talking about is compensation. We are talking about
payments, not about overhead. The Senator from New Hampshire mentioned
that in these Federal cases expenses are allowed. I am talking about
compensation. I also might mention that, in Oklahoma, I compared what
we pay in Oklahoma for a capital case; there is a $20,000 cap--$20,000
to the lead attorney, and for co-counsel, $5,000.
I might mention, on other cases on the Federal level--for a felony
case, we have caps at $3,500. All I am talking about is having a cap
equal to the salary. So we are talking salaries, not about other
benefits.
Mr. BINGAMAN. Mr. President, if I could ask the Senator, does his
amendment contain a cap as to each case? Is he saying that each capital
case will be limited to a certain amount that can be spent on the
defense attorney?
Mr. NICKLES. To respond to my colleague, we are talking about so
much, not per case, but per attorney. We didn't limit the number of
attorneys. We just didn't want to be in a situation where a U.S.
attorney is hiring additional counsel and to have the defense counsel
say, ``Hey, we can pay three or four times more. Come fight on our side
of the case.''
Right now, in the case of the Oklahoma City bombing case, the defense
attorneys made--I am not talking about expenses--they individually made
probably three or four times as much as U.S. attorneys. I think that is
inequitable. I am talking about what they receive in take-home pay, per
attorney.
Mr. BINGAMAN. Let me just clarify. When you are talking about the
take-home pay for the court-appointed counsel, you are talking about
the amount of funds they take with which to pay for their law firm's
ability to participate in the case. I think that is clearly a figure
that bears very little resemblance to what the U.S. attorney gets in
salary and the paycheck that he takes home at the end of each month. I
think you are trying to put an artificial limit on what the court-
appointed counsel can get, which I think is a real disservice to the
criminal justice system. If we are going to continue with the notion
that we are going to have court-appointed counsel for people who are
accused of crimes and who can't afford their own counsel, we have to
have some reasonable way of compensating them and not expect that
court-appointed counsel to work for nothing half of the time, or more,
during each month.
Mr. President, based on my understanding of the amendment, I oppose
the amendment. I understand that Senator Leahy is opposed to the
amendment, but he is not able to be here right now to make a statement.
I think this will artificially limit the amount

[[Page S8824]]

of work that court-appointed counsel are able to do on behalf of
criminal defendants. To that extent, I think it subverts the criminal
justice system. I oppose it.
Mr. NICKLES. Mr. President, how much time remains?
The PRESIDING OFFICER. The Senator from Oklahoma has 1 minute 48
seconds.
Mr. NICKLES. Mr. President, certainly, my colleague has a right to
oppose the amendment. Let me capsulize it again. We have a situation
where Federal death penalty cases--most of them are handled in the
States and most States have caps. My State has a cap of $20,000 for the
lead attorney. We are not doing that. We are not capping what somebody
can pay for their private attorneys. They can pay their private
attorney anything they want to.
Since we are talking about court-appointed attorneys, they are going
to be paid for by the taxpayers, like we pay U.S. attorneys. I am
saying that we should not pay that individual--their compensation, not
their overhead or expenses; those are other items--three or four times
as much as we pay the U.S. attorneys.

I didn't even say we would limit the number of attorneys. I want
people to have an adequate defense. In the McVeigh case, the defense
counsel had 13 or 14 attorneys. The expenses are going to come out and
be public, and people will be outraged. I am trying to have basic
equity. I don't think they should make more than a U.S. attorney. I
think that is a real outrage. Then when you find out they might have
made three or four times as much money as a U.S. attorney--and again, I
am not talking about expenses, I am talking about what they make--that
is an injustice. We need equity and balance. That is why I have
proposed this amendment. I hope my colleagues will vote for it.
Mr. President, my colleague from South Carolina says U.S. attorneys
almost make as much as U.S. Senators. Most of us work a little more
than 40 hours a week. Again, I just urge my colleagues to support the
amendment. I will ask for the yeas and nays if my colleague from New
Mexico wants them.
Mr. BINGAMAN. I don't require the yeas and nays. I would like to be
reported as voting against the amendment.
Mr. NICKLES. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. Under the order, the amendment will be stacked
to be voted on later.
Who seeks recognition?
Mr. BINGAMAN addressed the Chair.
The PRESIDING OFFICER. The Senator from New Mexico.

Amendment No. 3273

(Purpose: To prohibit from trademark the flag, coat of arms or other
insignia of any federally recognized Indian tribes)

Mr. BINGAMAN. Mr. President, I send an amendment to the desk and ask
for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Mew Mexico [Mr. Bingaman], for himself and
Mr. Domenici, proposes an amendment numbered 3273.

Mr. BINGAMAN. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place, insert:
Notwithstanding any rights already conferred under the
Trademark Act, Section 2 of the Act entitled ``An Act to
provide for the registration and protection of trademarks
used in commerce, to carry out the provisions of certain
international conventions, and for other purposes,'' approved
July 5, 1946, commonly referred to as the Trademark Act of
1946 (15 U.S.C. 1052(b)), is amended in subsection (b) by
inserting ``or of any federally recognized Indian tribe,''
after ``State or municipality,''.

Mr. BINGAMAN. Mr. President, the amendment is a simple amendment to
correct a longstanding error in what is known as the Lanham Act, the
statute that controls what can and what cannot be trademarked.
In doing so, let me indicate my appreciation to Senator Leahy and
Senator Inouye for their support and, of course, my colleague Senator
Domenici.
Mr. President, the Lanham Act of 1946, the primary statute governing
what can and cannot be trademarked, protects flags, coats of arms, and
official insignia of the United States, States, municipalities, and
foreign nations.
It essentially says those cannot be trademarked. However, the act
neglects to protect the insignias which belong to American Indian
tribes. I believe strongly that this was an oversight. It is time we
corrected the oversight.
Significantly, I want to be clear that in offering this amendment, I
do not intend to affect existing trademark rights that may already have
been conferred under this act. This amendment also does not have any
affect on any current existing, non-trademarked usage of these tribal
insignia but only sets out to prohibit the trademarking of tribal
insignia in the same way a State's, municipality's, foreign nation's,
and the United States' insignia currently is protected.
A key point that must be made here is that tribal governments are
recognized as forms of government listed under the Act and should be
treated in the same way that State, municipal, county, and of course
the United States governments are considered. The Lanham Act originally
was passed in 1946, and at that time, there was not as much recognition
of the governmental status that federally-recognized Indian tribes
hold. Today, however, we understand more than ever that tribal
governments are sovereign and should be respected as such. Thus, it is
an appropriate time to include federally recognized tribes for
protection under the Lanham Act.
Significantly, tribal insignia often are considered sacred by a
respective Indian tribe, and for that reason they should be prohibited
from trademark. The Lanham Act protects from trademark anything that
would disparage a belief. For example, if someone wanted to trademark a
crucifix, Star of David, or Madonna and Child, in such a way that would
disparage any one of those significant symbols, the trademark office is
directed by law to deny that application for trademark.
However, there are is no similar protections for the many symbols
that American Indian people hold very sacred. For example, the Zia
pueblo, which is located in New Mexico, holds very sacred a symbol they
refer to as the ``sun symbol.'' This symbol is probably familiar to
many people because it appears on the flag of the State of New Mexico.
It is a very popular symbol among businesses and artisans. The Pueblo
of Zia generally does not take particular issue with the use of the
symbol unless there is an attempt to have the symbol trademarked, the
use of which would disparage their religious beliefs. Clearly they have
a real interest in seeing that someone else does not come along and
trademark the insignia that the tribe has always claimed as its
own. Unless you are a tribal member, you could not appreciate the
significance of the symbol. In fact, Zia Pueblo holds the symbol so
sacred that it would be against their religious beliefs to disclose to
anyone outside of the tribe how they use the symbol in their sacred
rituals.

Indeed, applications have been submitted to the Office of Patent and
Trademarks, and each time an application is submitted, the Pueblo must
contest the application. This involves substantial legal costs to the
Pueblo, and the Pueblo Tribe is not in a financial circumstance where
it can take on those legal costs in an indefinite future.

The Pueblo is located in a very isolated, desolate area of the state
and has very high unemployment. I admire the Pueblo because they hold
fast the centuries-old traditions and beliefs in spite of that great
economic hardship. They are a non-gaming tribe and have few resources
for water treatment facilities, schools or other vital services.
Nonetheless, they are willing to contest the trademarking of a symbol
that they hold very sacred. The problem is pervasive among all twenty-
two tribes in New Mexico and among all American Indian tribes
nationwide.
Yet we have a statute in place that protects every form of
government, even foreign nations, but it does not protect American
Indian governments.

[[Page S8825]]

By simply inserting ``federally recognized Indian tribes'' in a list
that already includes ``United States,'' ``States,'' ``municipality,''
and ``foreign nation,'' my amendment finally will offer protection from
trademark to tribes the same protection that already is conferred upon
any other form of government. My amendment does not affect any existing
trademark rights that may already have been conferred under the Lanham
Act.
What we are saying here is that we should take the Lanham Act where
it provides for exceptions and says that you cannot trademark the
insignia of the United States, States, municipalities, and foreign
nations. We are saying we should assert federally recognized Indian
tribes as another one of the categories that enjoys this same
protection.
To me, it is a very straightforward amendment. I see no real basis
for anyone opposing the amendment. I hope that it will be agreed to. I
urge my colleagues to support this amendment.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Chair would like to clarify that the time
remaining to the proponents is 5 minutes 58 seconds, and for the
opponents, 10 minutes.
Does anyone seek recognition?
Mr. BINGAMAN. Mr. President, I ask unanimous consent that the time be
evenly charged against the two sides, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BINGAMAN. Mr. President, I yield the remainder of my time.
Mr. GREGG. Mr. President, we yield the remainder of our time, and ask
for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
The PRESIDING OFFICER. The vote will be postponed.
Mr. GREGG. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GREGG. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GREGG. Mr. President, we are waiting for one or two Senators to
come down. I simply advise my colleagues that progress is being made.
We now have two votes ordered. We have a number of amendments still
pending under the unanimous consent agreement, and we are trying to
work out a number of them. Hopefully, we will soon have the next
amendment in order to be offered.
While we are waiting for that, though, I would like to speak on
another subject. I ask unanimous consent to speak as if in morning
business for 5 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

____________________