[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.

                          ____________________