Congressional Record, Volume 146 Issue 113 (Thursday, September 21, 2000)

[Congressional Record Volume 146, Number 113 (Thursday, September 21, 2000)]
[Senate]
[Pages S8942-S8958]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. SPECTER:
S. 3086. A bill to permit the televising of Supreme Court
proceedings; to the Committee on the Judiciary.

opening the supreme court to television

Mr. SPECTER. Mr. President, I have sought recognition today to
introduce legislation on behalf of Senator Biden and myself, a bill
which, succinctly stated, would provide the following: The Supreme
Court of the United States shall permit television coverage of all open
sessions of the Court unless the Court decides by a vote of the
majority of Justices that allowing such coverage in a particular case
will constitute a violation of the due process rights of one or more of
the parties before the Court.
I will summarize that lengthy statement because of time limitations.
The statement contains the citations of the cases referred to and the
specific quotations which I shall cite.
The purpose of this legislation is to open to public view what the
Supreme Court of the United States does in rendering important
decisions. It is grounded on the proposition that since the Supreme
Court of the United States has assumed the power to decide the cutting-
edge questions on public policy today and has in effect become
virtually a ``super legislature'' in taking on the decisions on these
public policy issues, that the public has a right to know what the
Supreme Court is doing, and that right would be substantially enhanced
by televising the oral arguments of the Court so that the public would
be able to see and hear the kinds of issues which the Court is
deciding. The public would then have an insight into those issues to be
able to follow what the Court decides after the due course of the
Court's deliberations.
In a very fundamental sense, the televising of the Supreme Court has
been implicitly recognized--perhaps even sanctioned--by a 1980 decision
of the Supreme Court of the United States in a case captioned Richmond
Newspapers v. Virginia, where the Supreme Court noted that a public
trial belongs not only to the accused, but to the public and the press
as well; and that people now acquire information on court procedures
chiefly through the print and electronic media.

That decision, in referencing the electronic media, perhaps might be
said to anticipate televising court proceedings, although I do not mean
to suggest that the Supreme Court is in agreement with this
legislation. It might be appropriate to note at this juncture that the
Court could, on its own motion, televise its proceedings but has chosen
not to do so, which presents, in my view, the necessity for legislation
on this subject.
If one goes to the chambers of the Supreme Court, which are right
across the green here in the Capitol complex, one may enter and observe
the Court's arguments because they are public. Newspaper reporters are
permitted to be in the Court. No cameras are permitted in the Court, of
even still pictures, so when television wishes to characterize an
argument, they have to send in an artist to have an artist's
renderings.
When I argued the case of the Navy Yard back in 1964, the Court
proceedings were illustrated by an artist's drawings. But in the year
2000, when the public gets a substantial portion, if not most, of its
information from television, the availability strictly to the print
media, is insufficient to give the public a real idea as to what is
going on in the Supreme Court of the United States.
The Supreme Court has traditionally had an agenda. It is really
nothing new. The Warren Court vastly expanded criminal rights. In the
year 2000, I think no one would question at least some of the Warren
Court's decisions, saying that anybody who is being prosecuted in a
criminal proceeding has a right to counsel. It is really surprising to
note that before 1963, the case of Gideon v. Wainwright, the defendant
in a criminal case did not have a right to counsel except in murder
cases.
There is no doubt that the Supreme Court of the United States in the
1930s had an agenda in striking down New Deal legislation. And then, in
a historic move, President Franklin Delano Roosevelt, an enormously
popular President in the mid- to late 1930's, very unhappy about the
Supreme Court's activism in striking down New Deal legislation by five
to four decisions--President Roosevelt suggested packing the Court by
adding six additional Justices. There was quite a public reaction
adverse to that proposal. Perhaps the Supreme Court of the United
States had more public attention at that particular time than at any
other time in its history.
In the face of what was happening, a Supreme Court Justice, Owen J.
Roberts, who happened to be from Philadelphia, my hometown, decided to
change his position and to support and hold constitutional the New Deal
legislation leading to the famous phrase ``a switch in time saves
nine,'' from the old adage about ``a stitch in time saves nine.'' The
switch by Supreme Court Justice Owen Roberts, it is said, saved the
nine-person constituency of the Supreme Court.
The Rehnquist Court, I submit, is unusually activist in pursuing its
agenda. The Court has stricken acts of Congress, saying:

No Congressman or Senator purported to present a considered
judgment,

Or striking acts of Congress saying there was a:

lack of legislative attention to the statute at issue,

Or striking an act of Congress saying the legislation was:

* * * an unwarranted response to perhaps an inconsequential
problem,

Or declaring an act of Congress unconstitutional saying:

Congress had virtually no reason to believe [that the
statute was well founded.]

There is no effort here to challenge the authority of the Supreme
Court of the United States to have the final word. That has been
established since Marbury v. Madison in 1803. I believe it is necessary
that the Supreme Court of the United States have the final word on
interpreting the Constitution and beyond that on saying what is a
constitutional question. But given the breadth of the Court's authority
and given the sweeping scope of what the Court is doing, the point is
that there ought to be public knowledge and there ought to be a public
response. Because I think it is fair to say that the Court is aware and
does watch the public response, and it ought to really be a factor in
whatever the Court decides to do--again, recognizing that the Court has
the final say.

In June of 1999, the Supreme Court curtailed congressional authority
in favor of the rights of States to sovereign immunity on patents and
copyrights, not withstanding the express constitutional grant of
authority to Congress to regulate patents and copyrights. Those cases
led former Solicitor General Walter Dellinger, formerly a professor and
a leading constitutional scholar, to describe these cases as:

* * * one of the three or four major shifts in
constitutionalism we have seen in the last three centuries.

Those particular cases were subject to very substantial criticism by
Professor Rebecca Eisenberg of the University of Michigan Law School,
commenting on Florida Prepaid Postsecondary Education v College Savings
Bank:

* * * the decision makes no sense,

Asserting that it arises from a:

* * * bizarre States' rights agenda that really has nothing
to do with intellectual property.

The Court's decisions have moved, as I have noted, really onto the
cutting edge of so many of the critical issues which are matters of
great national concern. The Court has decided issues from birth to
death and the vital issues in between, making the decision on the
constitutional right to an abortion; making decisions on how the death
penalty will be imposed; making decisions on the questions of freedom
of religion, as illustrated by the case of City of Boerne v. Flores,
where the Court struck down the Religious Freedom Restoration Act.
Freedom of religion, of online speech, in Reno v. ACLU, the Court
struck down two provisions of the Communications Decency Act of 1998;
Prince v. United States, the Court, by a 5-to-4 decision, reversed some
six decades of firmly established constitutional authority on the
supremacy of Federal laws over States under the commerce clause. And,
in the Lopez case in 1995, the Supreme Court of the United

[[Page S8943]]

States invalidated congressional authority, which had been intact for
some 60 years under the commerce clause.
So we have seen the expansion of the authority of the Supreme Court
of the United States in so many lines, really, taking on the aura and
the perspective of a superlegislature.
Justice Felix Frankfurter perhaps anticipated the day when the
Supreme Court arguments would be televised when he said that he longed
for a day when:

The news media would cover the Supreme Court as thoroughly
as it did the World Series, since the public confidence in
the judiciary hinges on the public's perception of it, and
that perception necessarily hinges on the media's portrayal
of the legal system.

It is interesting to note that the columns of the Senate match up
exactly with the columns of the Supreme Court of the United States.
In the early deliberations on the Constitution, there were proposals
that Supreme Court Justices ought to be appointed by the Senate. I am
not sure quite how that would have worked out given our large groupings
and how we would go about making those decisions, but that was once
thought about.
There was a constitutional amendment proposed that would have allowed
Supreme Court decisions to be overruled by a two-thirds vote of the
Senate, a proposal which I think would have been very unwise and did
not get very far.
The Senate does have the constitutional authority on confirmation of
Supreme Court Justices, perhaps our most important function as so many
major decisions have been decided by a single vote on 5-4 decisions: 79
such decisions in the past 5 years; 20 such decisions in the last term
of the Court.
The Court has been a strong point in our historical development, but
as the Court has expanded into areas traditionally reserved for
Congress, functioning virtually as a superlegislature, without in any
way challenging the independence of the Court, the independence of the
Federal judiciary, I do believe it is appropriate for the Congress to
speak on the operation of the Court.
The Congress has the authority to establish the number of Justices so
that if the Congress chose, we could expand the number beyond nine or
curtail it. The Congress has established the number six as a quorum for
the Court. The Congress has the authority to establish the jurisdiction
of the Supreme Court of the United States and, in the landmark case of
Ex parte McCardle, decided that the jurisdiction of the Court could be
curtailed even on constitutional grounds. Frankly, I do not think that
1868 decision would stand today as to the authority of the Congress to
curtail the jurisdiction of the Court on constitutional grounds, but
during confirmation proceedings when those questions are asked, the
nominees choose to leave that as an open question. It does remain an
open question.
Televising, of course, is vastly different and a far range from the
issue of jurisdiction. The Congress of the United States has
established the time limits for Federal trials under the speedy trial
limit and has established time limits for consideration of habeas
corpus cases. So there is ample authority for the Congress to call for
the opening of the Supreme Court for television.
Obviously, there are issues of separation of power which I think this
legislation respects. Obviously, the final decision will be for the
Court. I do not expect a rush to judgment on this very complex
proposition, but I do believe the day will come when the Supreme Court
of the United States will be televised. That day will come, and it will
be decisively in the public interest so the public will know the
magnitude of what the Court is deciding and its role in our democratic
process.
The public's interest would be significantly promoted by televising
the proceedings of the Supreme Court of the United States. Given the
enormous importance of the decisions made by the Court, and the fact
that so many of these decisions are really public policy choices rather
than strictly legal decisions, the public deserves as much access as
possible to the Court's proceedings.
This proposed legislation to televise sessions of the Supreme Court
fully respects the authority of the Supreme Court to make the ultimate
decision on Constitutional questions. It seeks to impose greater
accountability upon a body which decides so many matters of the
greatest importance to our country, often by a single vote.
In the normal course of events, the Supreme Court often renders
opinions which, at their core, decide cutting-edge issues which are
really within the legislative domain under the Constitutional doctrine
of Separation of Powers. In recent years the Supreme Court has
exaggerated this policy role by explicitly substituting its judgment
for that of Congress and striking down legislation which it has found
is not based upon a ``considered judgment.''
In our Constitutional scheme, who are the justices of the Supreme
Court to substitute their judgment for that of Congress on these issues
of public policy? By what right do the Justices decide that Congress
has not exercised a ``considered judgment''? When it rules on this
basis, the Court goes far beyond its role as final Constitutional
arbiter and becomes a super legislature.
Senator Biden cogently addressed this issue in a July 26, 2000 floor
statement. After discussing a number of recent Supreme Court opinions
in which the Court exceeded its authority to strike down laws passed by
Congress, Senator Biden noted that:

It is crucial . . . that the American people understand the
larger pattern of the Supreme Court's recent decisions and .
. . the disturbing direction in which the Supreme Court is
moving because the consequences of these may well impact upon
the ability of American citizens to ask their elected
representatives in Congress to help them solve national
problems that have national impact. . . .
Make no mistake, what is at issue here is the question of
power . . . basically whether power will be exercised by an
insulated judiciary or by the elected representatives of the
people.

The public has a right to know how, why and what the Court is doing.
In particular, the deliberations of the Court should be open to the
sunshine of public scrutiny. Television coverage would be a significant
step to provide a meaningful opportunity for public to observe and
understand what the Court is doing.
Beyond educating the public, enhanced public scrutiny may very well
have the effect of discouraging judicial activism and overreaching. The
example of Justice Owen Roberts is instructive. In the mid-1930's, the
Supreme Court struck down many significant pieces of New Deal
legislation by votes of 5 to 4. President Roosevelt went to great
lengths to publicize this episode of judicial activism, culminating in
his infamous proposal to pack the Supreme Court by adding six new
members. Notwithstanding FDR's enormous popularity, that proposal
raised a storm of protest and failed. In the midst of that controversy,
a swing justice, Owen J. Roberts, shifted his position to support the
New Deal programs. Accordingly, a majority of the Court then supported
and upheld New Deal legislation. Justice Robert's change in position
led to the famous phrase, ``a switch in time saves nine.''
The current Court broke with sixty years of tradition in curtailing
Congress's authority under the Commerce Clause in Lopez, which
invalidated Federal legislation creating gun-free school zones. In June
1999 in three far-reaching decisions, the Supreme Court curtailed
Congressional authority in favor of the right of states to sovereign
immunity on patent, copyright and other intellectual property
infringement matters. These cases are: College Savings Bank v. Florida
Prepaid, 527 U.S. 666, Florida Prepaid v. College Savings Bank, 527
U.S. 627, and Alden v. Maine, 527 U.S. 706.
The June 1999 patent and copyright infringement cases have been
roundly criticized by the academicians. Stanford University historian
Jack Rakove, author of ``Original Meanings'', a Pulitzer Prize winning
account of the drafting of the Constitution, characterizes Justice
Kennedy's historical argument in Alden v. Maine as ``strained, even
silly''.
Professor Rebecca Eisenberg of the University of Michigan Law School,
in commenting on Florida Prepaid Postsecondary Education Expense Board
vs. College Savings Bank, said:

``The decision makes no sense'', asserting that it arises
from ``a bizarre states' rights agenda that really has
nothing to do with intellectual property.

Harvard Professor Laurence Tribe commented:

[[Page S8944]]

``In the absence of even a textual hint in the
Constitution, the Court discerned from the constitutional
`ether' that states are immune from individual lawsuits.''
(These decisions are) ``scary''. ``They treat states' rights
in a truly exaggerated way, harking back to what the country
looked like before the civil war and, in many ways, even
before the adoption of the Constitution.''

College Savings Bank v. Florida Prepaid 1999 U.S. LEXIS 4375, Florida
Prepaid v. College Savings Bank 1999 U.S. LEXIS 4376 and Alden v.
Maine, 1999 U.S. LEXIS 4374.
In addition to treating the Congress with disdain, the five person
majority in all three cases demonstrated judicial activism and
exhibited what can only be viewed as a political agenda in drastically
departing from long-standing law. Former Solicitor General Walter
Dellinger described these cases as:

``one of the three or four major shifts in constitutionalism
we've seen in two centuries.''

A commentary in the Economist on July 3, 1999 emphasized the Court's
radical departure from existing law stating:

``The Court's majority has embarked on a venture as
detached from any constitutional moorings as was the liberal
Warren Court of the 1960's in its most activist mood.''

In its two opinions in College Savings Bank v. Florida Prepaid and
Florida Prepaid v. College Savings Bank, the Court held that the
doctrine of sovereign immunity prevents states from being sued in
Federal court for infringing intellectual property rights. These
decisions leave us with an absurd and untenable state of affairs.
Through their state-owned universities and hospitals, states
participate in the intellectual property marketplace as equals with
private companies. The University of Florida, for example, owns more
than 200 patents. Furthermore, state entities such as universities are
major consumers of intellectual property and often violate intellectual
property laws when, for example, they copy textbooks without proper
authorization.
But now, Florida and all other states will enjoy an enormous
advantage over their private sector competitors--they will be immune
from being sued for intellectual property infringement. Since patent
and copyright infringement are exclusively Federal causes of action,
and trademark infringement is largely Federal, the inability to sue in
Federal court is, practically speaking, a bar to any redress at all.
The right of states to sovereign immunity from most Federal lawsuits
is guaranteed in the Eleventh Amendment to the constitution, which
provides that:

The Judicial Power of the United States shall not be
construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any foreign
state.

It has long been recognized, however, that this immunity from suit is
not absolute. As the Supreme Court noted in one of the Florida Prepaid
opinions, the Court has recognized two circumstances in which an
individual may sue a state:

First, Congress may authorize such a suit in the exercise
of its power to enforce the Fourteenth Amendment--an
Amendment enacted after the Eleventh Amendment and
specifically designed to alter the federal-state balance.
Secondly, a state may waive its sovereign immunity by
consenting to suit. College Savings Bank v. Florida Prepaid
at 7.

Congress' power to enforce the Fourteenth Amendment is contained in
Section Five of the Fourteenth Amendment, which provides that ``The
Congress shall have the power to enforce, by appropriate legislation,
the provisions of this article.'' One of the provisions of the
Fourteenth Amendment, Section One, provides that no State shall,
``deprive any person of . . . property . . . without due process of
law.'' Accordingly, Congress has the power to pass laws to enforce the
rights of citizens not to be deprived of their property--including
their intellectual property--without due process of law.
Employing this power under Section 5 of the Fourteenth Amendment,
Congress passed the Patent Remedy Act and the Trademark Remedy
Clarification Act in 1992. As its preamble states, Congress passed the
Patent Remedy Act to ``clarify that States . . . are subject to suit in
Federal court by any person for infringement of patents and plant
variety protections.'' Congress passed the Trademark Remedy
Clarification Act to subject the States to suits brought under Sec. 43
of the Trademark Act of 1946 for false and misleading advertising.
In Florida Prepaid v. College Savings Bank, the Court held in a 5 to
4 opinion that Congress did not validly abrogate state sovereign
immunity from patent infringement suits when it passed the Patent
Remedy Act. In an opinion by Chief Justice Rehnquist, the Court
reasoned that in order to determine whether a Congressional enactment
validly abrogates the States' sovereign immunity, two questions must be
answered, ``first, whether Congress has unequivocally expressed its
intent to abrogate the immunity . . . and second whether Congress has
acted pursuant to a valid exercise of power.''
The Court acknowledged that in enacting the Patent Remedy Act,
Congress made its intention to abrogate the States' immunity
unmistakably clear in the language of the statute. The Court then held,
however, that Congress had not acted pursuant to a valid exercise of
power when it passed the Patent Remedy Act. The Court wrote that
Congress' enforcement power under the Fourteenth Amendment is
``remedial'' in nature. Therefore, ``for Congress to invoke Section 5
it must identify conduct transgressing the Fourteenth Amendment's
substantive provisions, and must tailor its legislative scheme to
remedy or preventing such conduct.'' Florida Prepaid v. College Savings
Bank at 20.
The Court found that Congress failed to identify a pattern of patent
infringement by the States, let alone a pattern of constitutional
violations. The Court specifically noted that a deprivation of property
without due process could occur only where the State provides
inadequate remedies to injured patent owners. The Court then observed
that:

Congress, however, barely considered the availability of
state remedies for patent infringement and hence whether the
States' conduct might have amounted to a constitutional
violation under the Fourteenth Amendment. . . . Congress
itself said nothing about the existence or adequacy of state
remedies in the statute or in the Senate Report, and made
only a few fleeting references to state remedies in the House
Report, essentially repeating the testimony of the witnesses.
Florida Prepaid v. College Savings Bank at 27-28.

Accordingly, the Court concluded that:

The legislative record thus suggests that the Patent Remedy
Act does not respond to a history of widespread and
persisting deprivation of constitutional rights of the sort
Congress has faced in enacting proper prophylactic Section 5
legislation. Instead, Congress appears to have enacted this
legislation in response to a handful of instances of state
patent infringement that do not necessarily violate the
Constitution. Florida Prepaid v. College Savings Bank at 31-
32.

Not only is the result of this opinion troubling--that states will
enjoy immunity from suit--but also by the reasoning which supports this
result. Here we have a Chief Justice of the Supreme Court choosing to
ignore an act of Congress because he has concluded that Congress passed
the legislation with insufficient justification. In essence, the Chief
Justice is telling us we did a poor job developing our record before
passing the Patent Remedy Act. As we all know, however, many of us
support legislation for reasons that don't make it into the written
record. The record is an important, but imperfect, summary of our
views. This is why past Courts have been reluctant to discuss
Congressional motives in this fashion.

In College Savings Bank v. Florida Prepaid, the Supreme Court decided
in a 5 to 4 opinion that Trademark Remedy Clarification Act (the
``TRCA'') was not a valid abrogation of state sovereign immunity. The
Court, in an opinion by Justice Scalia, noted that Congress passed the
TRCA to remedy and prevent state deprivations of two types of property
rights: (1) a right to be free from a business competitor's false
advertising about its own product, and (2) a more generalized right to
be secure in one's business interests. The Court contrasted these
rights with the hallmarks of a protected property interest, namely the
right to exclude others.
Justice Scalia reached the surprising conclusion that protection
against false advertising secured by Section 43(a) of the Lanham Act
does not implicate property rights protected by the due process clause
so that Congress could not rely on its remedies under Section 5 of the
14th Amendment to abrogate state sovereign immunity. If

[[Page S8945]]

conducting a legitimate business operation with protection from false
advertising is not a ``property right'', it is hard to conceive of what
is business property. That Scalia rationale shows the extent to which
the Court has gone to invalidate Congressional enactments.
The Court then discussed whether Florida's sovereign immunity, though
not abrogated, was voluntarily waived. Here, the Court expressly
overruled its prior decision in Parden v. Terminal R. Co. 377 U.S. 184
(1964) and held that there was no voluntary waiver. In Parden, the
Court had created the doctrine of constructive waiver, which held that
a state could be found to have waived its immunity to suit by engaging
in certain activities, such as voluntary participation in the conduct
Congress has sought to regulate. Since Congress has sought to regulate
interstate commerce, then a state which participated in interstate
commerce by registering and licensing patents would be held to have
voluntarily waived its immunity to a patent infringement suit. By
overruling Parden, however, the Court held that a voluntary waiver of
sovereign immunity must be express. Florida made no such express waiver
of its sovereign immunity.
In other relatively recent cases, the Court has gone out of its way,
almost on a personal basis, to chastise and undercut Congress. The case
of Sable v. FCC, 492 U.S. 115 (1989) provides a striking example of
this trend. In Sable, the Court struck down a ban on ``indecent''
interstate telephone communications passed by Congress in 1988. In
rejecting this provision, the Court focused on whether there were
constitutionally acceptable less restrictive means, short of a total
ban, to achieve its goal of protecting minors. The Court then declared,
in unusually dismissive and critical language, that Congress has not
sufficiently considered this issue:

aside from conclusory statements during the debates by
proponents of the bill . . . that under the FCC regulations
minors could still have access to dial-a-porn messages, the
congressional record presented to us contains no evidence as
to how effective or ineffective the FCC's most recent
regulations were or might prove to be.
The bill that was enacted . . . was introduced on the
floor. . . . No Congressman or Senator purported to present a
considered judgement with respect to how often or to what
extent minors could or would circumvent the rules and have
access to dial-a-porn messages. (Emphasis Added)

If a member of the Congress made a judgment, by what authority does
the Supreme Court superimpose its view that it wasn't a ``considered
judgment''? A fair reading of the statements from the floor debate on
this issue undercuts the Court's disparaging characterization of this
debate. For example, Representative Tom Bliley of Virginia gave a
rather detailed and persuasive discussion of how he concluded that a
legislative ban was necessary. Mr. Bliley noted that in 1983, Congress
first passed legislation which required the FCC to report regulations
describing methods by which dial-a-porn providers could screen out
underage callers. Mr. Bliley then walks us through the repeated failure
of the FCC to pass regulations which could withstand judicial scrutiny.
Finally Mr. Bliley notes that:

it has become clear that there was not a technological
solution that would adequately and effectively protect our
children from the effect of this material. We looked for
effective alternatives to a ban--there were none.

The Court repeats its critique of Congressional action in the case of
Reno v. ACLU, 521 U.S. 844 (1997). Here, the Court struck down the
Communications Decency Act, which prohibited transmission to minors of
``indecent'' or ``patently offensive'' communications. In this opinion,
the Court again discusses whether less restrictive means were available
and again concludes that Congress had not sufficiently addressed the
issue. The opinion notes that:

The Communications Decency Act contains provisions that
were either added in executive committee after the hearings
[on the Telecom Act] were concluded or as amendments offered
during floor debate on the legislation. . . . No hearings
were held on the provisions that became the law.

The Court in Reno later notes that, ``The lack of legislative
attention to the statute at issue in Sable suggests another parallel
with this case.'' (Emphasis Added)
Once again, if Congress passes a law, by what authority does the
Supreme Court conclude that we did not devote sufficient legislative
attention to the law? In the Reno opinion itself the Court noted that
some Members of the House of Representatives opposed the Communications
Decency Act because they thought that less restrictive screening
devices would work. These members offered an amendment intended as a
substitute for the Communications Decency Act, but instead saw their
provision accepted as an additional section of the Act. In light of
this record, how can the Court say that Congress did not consider less
restrictive means?
Most recently, in its January, 2000, opinion in Kimel v. Florida
Board of Regents, 528 U.S. 62, the Supreme court once again took aim at
Congress' judgment. In Kimel, the Court held that a 1974 amendment to
the Age Discrimination in Employment Act (the ``ADEA'') to extend its
application to discrimination by state and local governments was not a
valid abrogation of state sovereign immunity. The Court rejected
Congress' action in truly dismissive tones:

Our examination of the ADEA's legislative record confirms
that Congress' 1974 extension of the Act to the States was an
unwarranted response to a perhaps inconsequential problem.
Congress never identified any pattern of age discrimination
by the States, much less any discrimination whatsoever that
rose to the level of constitutional violation. * * *
(Emphasis Added)
A review of the ADEA's legislative record as a whole * * *
reveals that Congress had virtually no reason to believe that
state and local governments were unconstitutionally
discriminating against their employees on the basis of age.
Congress' failure to uncover any significant pattern of
unconstitutional discrimination here confirms that Congress
had no reason to believe that broad prophylactic legislation
was necessary in this field. Kimel at (Emphasis Added)

Almost every member of Congress had had close working relationships
with employees of the state and local governments back home, and all
members of Congress meet state and local government employees when they
are back in their states or districts. In fact, many members of
Congress were once themselves state employees. Congress is therefore in
a very good position to know that age discrimination by the states is
not an ``inconsequential'' problem. In fact, the absence of an in-depth
debate on this topic likely reflects the fact that this proposition
that state and local governments discriminate on the basis of age was
non-controversial. The Supreme Courts failure to defer to Congress'
experience on this issue and its jaundiced reading of the record are
troubling.
While numerous other instances of judicial activism may be cited, the
decisions during Chief Justice Warren's tenure from 1953 through 1969
are illustrative. While few, if any at this late date, would disagree
with the Warren Court's decision holding segregation unconstitutional
in Brown v. Board of Education, it was a clear-cut case of judicial
activism overturning Pleassey v. Ferguson since neither the legislative
nor executive branches of the federal or state governments would
correct those rank injustices.
The Warren Court significantly expanded the interpretation of the due
process clause of the 14th Amendment to add Constitutional rights to
criminal defendants in state court cases. In Mapp v. Ohio, the Court
rule that unconstitutionally seized evidence could not be introduced in
a state criminal proceeding. In Gideon v. Wainwright, the Supreme Court
required that the State provide a defendant a lawyer when ``hailed''
into criminal court. Miranda v. Arizona, perhaps the Court's most
famous opinion, rule out a defendant's confession or statement unless
five specific warnings were given by police and waivers obtained from
the defendant before incriminating statements could be introduced
against him/her in state court proceedings.
Another era of judicial activism occurred in the mid-1930's. During
this period, the Supreme Court embarked on a very different activist
agenda by striking down many of the core laws passed as part of
President Roosevelt's New Deal. In the 1935 case of A.L.A. Schecter
Poultry Corp. v. United States, the Supreme Court struck down the
National Industrial Recovery Act on the grounds that it exceeded
Congress' power under the Commerce Clause. Also in 1935, in Railroad
Retirement Board v. Alton R.R., the Supreme

[[Page S8946]]

Court struck down the Railroad Retirement Act on the same Commerce
Clause grounds. In the 1936 case of United States v. Butler, the
Supreme Court struck down the agricultural Adjustment Act on the
grounds that it sought to regulate a subject--the production of daily
products--prohibited to Federal government under the 10th Amendment.
Also in 1936, in Carter v. Carter Coal Co., the Court struck down the
Bituminous Coal Conservation Act on the same 10th Amendment grounds.
These decisions, led to the infamous proposal to pack the Supreme
Court by adding six new members. Notwithstanding FDR's enormous
popularity, that proposal raised a storm of protest and failed.
Televised court proceedings better enable the public to understand
the role of the Supreme Court and its impact on the key decisions of
the day. Not only has the Supreme Court invalidated Congressional
decisions where there is, in the views of many, simply a difference of
opinion to what is preferable public policy, but the Court determines
avant-garde issues such as whether aids is a disability under the
Americans with Disabilities Act, whether Congress can ban obscenity
from the Internet, and whether states can impose term limits upon
members of Congress. Just this past term, the Court addressed whether
the FDA has the authority to regulate tobacco products as a drug and
whether states can ban partial birth abortion.
The current Court, like its predecessors, hands down decisions which
vitally affect the lives of all Americans. Since the Court's 1803
historic decision in Marbury v. Madison, the Supreme Court has the
final authority on issues of enormous importance from birth to death.
In Roe v. Wade (1973), the Court affirmed a Constitutional right to
abortion in this country and struck down state statutes banning or
severely restricting abortion during the first two trimesters on the
grounds that they violated a right to privacy inherent in the Due
Process Clause of the Fourteenth Amendment. In the case of Washington
v. Glucksberg (1997), the court refused to create a similar right to
assisted suicide. Here the Court held that the Due Process Clause does
not recognize a liberty interest that includes a right to commit
suicide with another's assistance.
In the Seventies, the Court first struck down then upheld state
statutes imposing the death penalty for certain crimes. In Furman v.
Georgia (1972), the Court struck down Georgia's death penalty statute
under the cruel and unusual punishment clause of the Eighth Amendment
and stated that no death penalty law could pass constitutional muster
unless it took aggravating and mitigating circumstances into account.
This decision lead Georgia and many states to amend their death penalty
statutes and, four years later, in Gregg v. Georgia (1976), the Supreme
Court upheld Georgia's amended death penalty statute.
Over the years, the Court has also played a major role in issues of
war and peace. In its opinion in Scott v. Sanford (1857)--better known
as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a
slave who had been taken into ``free'' territory by his owner, was
nevertheless still a slave. The Court further held that Congress lacked
the power to abolish slavery in certain territories, thereby
invalidating the careful balance that had been worked out between the
North and the South on the issue. Historians have noted that this
opinion fanned the flames that led to the Civil War.
More recently, the Supreme Court played an important role during the
Vietnam War. Prominent opponents of the war repeatedly petitioned the
Court to declare the Presidential action unconstitutional on the
grounds that Congress had never given the President a declaration of
war. The Court decided to leave this conflict in the political arena
and repeatedly refused to grant writs of certiorari to hear these
cases. This prompted Justices Douglas, sometimes accompanied by
Justices Stewart and Harlan, to take the unusual step of writing
lengthy dissents to the denials of cert.
In New York Times Co. v. United States (1971)--the so called
``Pentagon Papers'' case--the Court refused to grant the government
prior restraint to prevent the New York Times from publishing leaked
Defense Department documents which revealed damaging information about
the Johnson Administration and the war effort. The publication of these
documents by the New York Times is believed to have helped move public
opinion against the war.
In its landmark civil rights opinions, the Supreme Court took the
lead in effecting needed social change, helping us to address
fundamental questions about our society in the courts rather than in
the streets. In Brown v. Board of Education, the Court struck down the
principle of ``separate but equal'' education for blacks and whites and
integrated public education in this country. This case was followed by
a series of civil rights cases which enforced the concept of
integration and full equality for all citizens of this country,
including Garner v. Louisiana (1961), Burton v. Wilmington Parking
Authority (1961), and Peterson v. City of Greenville (1963).
When deciding issues of such great national import, the Supreme Court
is rarely unanimous. In fact, a large number of seminal Supreme Court
decisions have been made by a vote of 5-4. Such a close margin reveals
that these decisions are far from foregone conclusions distilled from
the clear meaning of the Constitution and legal precedents. On the
contrary, these major Supreme Court opinions are really policy
decisions reached on the basis of the preferences and views of each
individual justice. In a case that is decided by a vote of 5-4,
individual justices have the power by his or her vote to change the law
of the land.
Given the enormous significance of each vote cast by each justice on
the Supreme Court, it is important that each justice know that they
will be held accountable for their vote. Televising the proceedings of
the Supreme Court will allow the sunlight to shine brightly on these
proceedings and ensure greater accountability.
The following are just a handful of examples of major 5-4 decisions
handed down by the Supreme Court this century:
Lochner v. New York (1905). The Court struck down an early attempt at
labor regulation by holding that a law limiting bakers to a sixty-hour
work week violated the liberty of contract secured by the Due Process
Clause of the Fourteenth Amendment.
Hammer v. Dagenhart (1918). The Court again struck down a labor law,
this time the Keating-Own Federal Child Labor Act, on the grounds that
Commerce Clause did not give Congress the power to completely forbid
certain categories of commerce.
Furman v. Georgia (1972). The Court struck down the death penalty
under the cruel and unusual punishment clause of the Eighth Amendment.
Plyer v. Doe (1982). The Court invoked the Equal Protection Clause of
the Fourteenth Amendment to strike down a Texas statute which denied
state funding for the education of illegal immigrant children.

Webster v. Reproductive Health Services (1989). In this case, which
has been widely viewed as a retreat from Roe v. Wade, the Court upheld
various restrictions on the availability of abortion including a ban on
the use of public funds and facilities for abortions.
United States v. Eichman (1990). The Court invalidated state and
Federal laws prohibiting flag desecration on the grounds that they
violated the First Amendment.
Adarand Constructors, Inc. v. Pena (1995). The Court held that
Federal racial classifications, like those of a state, must be reviewed
under a strict scrutiny standard.
U.S. Term Limits v. Thornton (1995). The Court struck down a state
law imposing term limits upon Members of Congress on the grounds that
states have no authority to change, add to, or diminish the age,
citizenship, and residency requirements for congressional service
enumerated in the Qualifications Clause of the U.S. Constitution.
During the past five years alone, there have been eighty 5 to 4
Supreme Court decisions. Out of the 79 cases decided in the Court's
most recent term, 20 were decided by a single justice on a 5 to 4 vote.
The following are some of the important decisions handed down by the
Court in its last few sessions that were decided by a 5 to 4 vote:
Tobacco regulation. In FDA v. Brown and Williamson Tobacco
Corporation, the Court ruled that the FDA lacks authority under the
Federal Food, Drug, and Cosmetic Act (FDCA) to regulate tobacco
products.

[[Page S8947]]

Abortion. In Stenberg v. Carhart, the Court ruled that Nebraska's
statute criminalizing the performance of ``partial birth abortions'' is
unconstitutional under principles set forth in Roe v. Wade (1973) and
Planned Parenthood v. Casey (1992).
Violence Against Women Act. In United States v. Morrison, the Court
struck down a key provision of the 1994 Violence Against Women Act
(VAWA) that allowed victims of gender-motivated violence to bring
private civil lawsuits against the perpetrators in federal court. The
Supreme Court said that Congress, in enacting the VAWA provision,
overstepped its authority to regulate interstate commerce and enforce
the Constitution's equal-protection guarantee.
HIV infection. In Bragdon v. Abbott, the Court ruled that HIV
infection is a ``disability'' as defined by the American with
Disabilities Act, even if the person who has tested positive for HIV is
asymptomatic.
Fourth Amendment. In Pennsylvania Board of Probation and Parole v.
Scott, the Court limited the exclusionary rule by holding that it does
not apply in parole revocation hearings.
Freedom of Religion. In City of Boerne v. Flores, the Court struck
down the Religious Freedom Restoration Act (``RFRA'') on the grounds
that it exceeded Congressional power under Section 5 of the Fourteenth
Amendment. RFRA had provided that governments can infringe upon
religious practices only if they have health, safety or other
``compelling interest'' in doing so.
Freedom of Speech Online. In Reno v. ACLU, the Court struck down two
provisions of the Communications Decency Act of 1996 prohibiting
transmission of obscene and indecent messages to minors on the grounds
that they violated the First Amendment.
In Printz v. United States, the Court voted 5 to 4 to reverse six
decades of firmly established constitutional authority on the supremacy
of federal laws over states rights under the Commerce Clause.
Specifically, the Court held unconstitutional the provisions of the
Brady Bill that require state and local law enforcement officers to
conduct background checks on prospective handgun purchasers.
In Agostini v. Felton, the Court voted to lower the barrier between
church and state by holding that the Establishment Clause of the First
Amendment does not bar use of public school teachers to provide
remedial education to disadvantaged children in parochial schools.
In Raines v. Byrd, the Court ruled that our colleagues, Senators
Byrd, Levin, Moynihan, and Hatfield, lacked standing to challenge the
constitutionality of the Line Item Veto Act since they failed to
establish a particularized personal injury. The Court's rejection of an
``institutional injury'' to Congress as a basis for standing
significantly limits the ability of legislators to raise constitutional
challenges to legislation in the courts.
Cameras Should be allowed in the Supreme Court on Basic Public Policy
and Constitutional Grounds.
Given the awesome national significance of the decisions made by the
Supreme Court, the right of the public to view the process by which
these decisions are made is self evident. In a democracy, the workings
of the government at all levels should be open to public view. The more
openness, and the more real the opportunity for public observation, the
greater the understanding and trust. As the Supreme Court noted in the
1986 case of Press-Enterprise Co. v. Superior Court, ``People in an
open society do not demand infallibility from their institutions, but
it is difficult for them to accept what they are prohibited from
observing.''
It was in this spirit that the House of Representatives opened its
deliberations to meaningful public observation by allowing C-Span to
begin televising debates in the House chamber in 1979. The Senate
followed the House's lead in 1986 by voting to allow television
coverage of the Senate floor.

Beyond this general policy preference for openness, however, there is
a strong argument that the Constitution requires that television
cameras be permitted in the Supreme Court.
It is well established that the Constitution guarantees access to
judicial proceedings to the press and the public. In 1980, the Supreme
Court relied on this tradition when it held in Richmond Newspapers v.
Virginia that the right of a public trial belongs not just to the
accused, but to the public and the press as well. The Court noted that
such openness has ``long been recognized as an indisputable attribute
of an Anglo-American trial.''
Recognizing that in modern society most people cannot physically
attend trials, the Court specifically addressed the need for access by
members of the media:

Instead of acquiring information about trials by first hand
observation or by word of mouth from those who attended,
people now acquire it chiefly through the print and
electronic media. [emphasis added] In a sense, this validates
the media claim of acting as surrogates for the public.
[Media presence] contributes to public understanding of the
rule of law and to comprehension of the functioning of the
entire criminal justice system.

Today, television is the means by which most Americans get their
information. To exclude television cameras from the court is to
effectively prevent large segments of American society from ever
witnessing what transpires therein. Furthermore, television provides a
level of access to courtroom proceedings far closer to the ideal of
actual attendance in the court than either newspapers or photographs
can provide.
In addition, a strong argument can be made that forbidding television
cameras in the court, while permitting access to print and other media,
constitutes an impermissible discrimination against one type of media
in contravention of the First Amendment. In recent years, the Supreme
Court and lower courts have repeatedly held that differential treatment
of different media is impermissible under the First Amendment absent an
overriding governmental interest. For example, in 1983 the Court
invalidated discriminatory tax schemes imposed only upon certain types
of media in Minneapolis Star & Tribune Co. v. Minnesota commissioner of
Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected
the contention by the two candidates for mayor of New York that they
could exclude some members of the media from their campaign
headquarters by providing access through invitation only. The Court
wrote that:

Once there is a public function, public comment, and
participation by some of the media, the First Amendment
requires equal access to all of the media or the rights of
the First Amendment would no longer be tenable.

In the 1965 case of Estes v. Texas, the Supreme Court rejected the
argument that the denial of television coverage of trials violates the
equal protection clause. In the same opinion, the Court held that the
presence of television cameras in the Court had violated a Texas
defendant's right to due process. Subsequent opinions have cast serious
doubt upon the continuing relevance of both prongs of the Estes
opinion.
In its 1981 opinion in Chandler v. Florida, discussed above, the
court recognized that Estes must be read narrowly in light of the state
of television technology at that time. The television coverage of
Estes' 1962 trial required cumbersome equipment, numerous additional
microphones, yards of new cables, distracting lighting, and numerous
technicians present in the courtroom. In contrast, the court noted,
television coverage in 1980 can be achieved through the presence of one
or two discreetly placed cameras without making any perceptible change
in the atmosphere of the courtroom. Accordingly, the Court held that,
despite Estes, the presence of television cameras in a Florida trial
was not a violation of the rights of the defendants in that case. By
the same logic, the holding in Estes that exclusion of television
cameras from the courts did not violate the equal protection clause
must be revisited in light of the dramatically different nature of
television coverage today.
Given the strength of these arguments, it is not surprising that over
the last two decades there has been a rapidly growing acceptance of
cameras in American courtrooms which has reached almost every court
except for the Supreme Court itself. Ironically, it was a Supreme Court
decision which helped spur the spread of television cameras in the
courts. In 1981, in the case of Chandler v. Florida, the Supreme Court
decided that televising

[[Page S8948]]

criminal proceedings did not inherently interfere with a criminal
defendant's constitutional right to a fair trial, and that there was no
empirical evidence to support a claim that it did. Shortly after the
Chandler decision, the American Bar Association revised its canons to
permit judges to authorize televising civil and criminal proceedings in
their courts.
Following the green lights provided by the Supreme Court and the ABA,
forty-seven states have decided to permit electronic coverage of at
least some portion of their judicial proceedings. In 1990, the federal
Judicial Conference authorized a three-year pilot program allowing
television coverage of civil proceedings in six federal district courts
and two federal circuit courts. The program began in July, 1991 and ran
through December 31, 1994. The Federal Judicial Center monitored the
program and issued a positive final evaluation. In particular, the
Judicial Center concluded that:

Overall, attitudes of judges toward electronic media
coverage of civil proceedings were initially neutral and
became more favorable after experience under the pilot
program.

The Judicial Center also concluded that:

Judges and attorneys who had experience with electronic
media coverage under the program generally reported observing
small or no effects of camera presence on participants in the
proceedings, courtroom decorum, or the administration of
justice.

Despite this positive evaluation, the Judicial Conference voted in
September, 1994, to end the experiment and not to extend the camera
coverage to all courts. This decision was made in the aftermath of the
initial burst of television coverage of O.J. Simpson's pretrial
hearing. Some have argued that the decision was unduly influenced by
this outside event.
In March, 1996, the Judicial Conference revisited the issue of
television cameras in the federal courts and voted to permit each
federal court of appeals to ``decide for itself whether to permit the
taking of photographs and radio and television coverage of appellate
arguments.'' Since that time, two circuit courts have enacted rules
permitting television coverage of their arguments. It is significant to
note that these two circuits were the two circuits which participated
in the federal experiment with television cameras a few years earlier.
It seems that once judges have an experience with cameras in their
courtroom, they no longer oppose the idea.
On September 6, 2000, the Senate Judiciary Committee's Subcommittee
on Administrative Oversight and the Courts held a hearing on ``Allowing
Cameras and Electronic Media in the Courtroom.'' The primary focus of
the hearing was Senate bill 721, legislation introduced by Senators
Grassley and Schumer that would give federal judges the discretion to
allow television coverage of court proceedings. One of the witnesses at
the hearing, Judge Edward Becker, Chief Judge U.S. Court of Appeals for
the Third Circuit, spoke in opposition to the legislation and the
presence of television cameras in the courtroom. The remaining five
witnesses, however, including a federal judge, a state judge, a law
professor and other legal experts, all testified in favor of the
legislation. They argued that cameras in the courts would not disrupt
proceedings but would provide the kind of accountability and access
that is fundamental to our system of government.
In my judgment, Congress, with the concurrence of the President, or
overriding his veto, has the authority to require the Supreme Court to
televise its proceedings. Such a conclusion is not free from doubt and
is highly likely to be tested with the Supreme Court, as usual, having
the final word. As I see it, there is no constitutional prohibition
against such legislation.
Article 3 of the Constitution states that the judicial power of the
United States shall be vested ``in one Supreme Court and such inferior
Courts as the Congress may from time to time ordain and establish.''
While the Constitution specifically creates the Supreme Court, however,
it left it to Congress to determine how the Court would operate. For
example, it was congress that fixed the number of justices on the
Supreme Court at nine. Likewise, it was Congress that decided that any
six of these justices are sufficient to constitute a quorum of the
Court. It was Congress that decided that the term of the Court shall
commence on the first Monday in October of each year, and it was
Congress that determined the procedures to be followed whenever the
Chief Justice is unable to perform the duties of his office.
Beyond such basic structural and operational matters, Congress also
controls more substantive aspects of the Supreme Court. Most
importantly, it is Congress that in effect determines the appellate
jurisdiction of the Supreme Court. Although the Constitution itself
sets out the appellate jurisdiction of the Court, it provides that such
jurisdiction exists ``with such exceptions and under such regulations
as the Congress shall make.'' In the early days of the Supreme Court,
Chief Justice Marshall, writing for the Court in Durousseau v. United
States, recognized that the power to make exceptions to the Court's
jurisdiction is the equivalent of the power to grant jurisdiction,
since exceptions can be ``implied from the intent manifested by the
affirmative description [of jurisdiction].''
the Supreme Court recognized the power of Congress to control its
appellate jurisdiction in a dramatic way in the famous 1868 case of Ex
Parte McCardle. In this case, McCardle, a newspaper editor, was being
held in custody by the military for trial on charges stemming from the
publication of articles alleged to be libelous and incendiary. McCardle
petitioned the Supreme Court for a writ of habeas corpus. The Court
heard his case but, before it rendered its opinion, Congress repealed
the statute that gave the Supreme Court jurisdiction to hear the habeas
appeal. In light of this Congressional action, the Supreme Court felt
compelled to dismiss the case for lack of jurisdiction.

Congress also exercises broad and significant control over the timing
within which federal courts must act. For example, Congress passed the
Speedy Trial Act to quantify an individual's Sixth Amendment right to a
speedy trial. Specifically, the Act requires that an individual
arrested for a criminal offense be indicted within thirty days of
arrest and be brought to trial within seventy days of an indictment.
Likewise, the habeas corpus reform I authored, which became law as
part of the comprehensive anti-terrorism act of 1996, imposes strict
timetables upon the filing and review of habeas corpus petitions and
appeals. For example, in the case of both death row inmates and other
prisoners, the Act establishes a one-year deadline within which state
and federal prisoners must file their federal habeas petitions. In
capital cases, the Act requires a district court to render a final
determination of a habeas petition not later than 180 days after the
date on which it is filed, and it requires a court of appeals to hear
and render a final determination of any appeal of an order granting or
denying such petition within 120 days after the date on which the reply
brief is filed.
Some objections have been raised to televised proceedings of the
Supreme Court on the ground that it would subject justices to undue
security risks. My own view is such concerns are vastly overstated.
Well-known members of Congress, including such high profile
personalities as Senator Ted Kennedy, walk on a regular basis in public
view in the Capitol complex. Other very well-known personalities,
presidents, vice presidents, cabinet officers, all are on public view
with even incumbent presidents exposed to risks as they mingle with the
public. Such risks are minimal and, in my view, are worth the
relatively minor exposure that Supreme Court justices would undertake
through television appearances.
The Supreme Court could, of course, permit television through its own
rule but has decided not to do so. Congress should be circumspect and
even hesitant to impose a rule mandating the televising of Supreme
Court proceedings and should do so only in the face of compelling
public policy reasons. The Supreme Court has such a dominant role in
key decision-making functions that their proceedings ought to be better
known to the public; and, in the absence of Court rule, public policy
would be best served by enactment of legislation requiring the
televising of Supreme Court proceedings.
______

By Mr. DORGAN (for himself, Mr. Gregg, and Mr. Durbin):

[[Page S8949]]

S. 3087. A bill to amend the Internal Revenue Code of 1986 to
simplify the individual income tax by providing an election for
eligible individuals to only be subject to a 15 percent tax on wage
income with a tax return free filing system, to reduce the burdens of
the marriage penalty and alternative minimum tax, and for other
purposes; to the Committee on Finance.

the fair and simple shortcut tax plan

Mr. DORGAN. Mr. President, for all the talk about taxes in this
chamber, we often overlook one of the worst burdens of the current tax
system. I'm talking about the monumental hassle that taxpayers face to
file their tax returns each year.
It is simply inexcusable that Congress has made it so expensive and
complex for Americans to fulfill this basic civic duty. Taxpayers will
probably spend somewhere around three billion hours and at least $75
billion next year in the effort to meet their federal income tax
obligations. It's no wonder they barrage congressional offices with
letters each spring imploring us to simplify the Tax Code.
They are right. Each little provision in the tax code has a
justification, but together they add up to a big headache for the
American taxpayer. We can't blame the IRS for the misery endured this
past year or in the years ahead. There's no way to truly simplify tax
day unless Congress changes the underlying law.
That's why I'm pleased to be joined by Senators Gregg and Durbin in
introducing a tax reform proposal that we call the ``Fair and Simple
Shortcut Tax'' (FASST) plan. Our plan would give most taxpayers the
opportunity to pay their federal income taxes without having to prepare
a tax return if they so choose. Some thirty countries already enable
their citizens to pay their federal taxes in this way. We believe tax
simplification along these lines can work in this country, too. Our
approach would also be less costly than other major tax simplification
plans that have been proposed in Congress in the past several years.
Our bill is based on a principle that both sides of the aisle
generally are eager to espouse--namely, choice. The bill would allow
taxpayers to choose to pay their taxes without complexity, paperwork
and hassle. Those who prefer to use the current system, with its
complexity and expenses, could do so if they wanted. But if they want
something simpler, they could choose that instead.
Under FASST, most taxpayers could forget about filing a federal tax
return on April 15th. Instead, their entire income tax liability would
be withheld at work. There would be no more deciphering statements from
mutual funds, no more frantic search for records and receipts, and no
last minute dash to the Post Office in order to meet the midnight
deadline. According to Treasury Department officials who have studied
it, the FASST plan would give up to 70 million Americans the
opportunity to elect the no-return option.
Specifically, under the FASST plan, most taxpayers could choose the
no-filing option by filling out a slightly modified W-4 form at work.
Using tables prepared by the IRS, their employers would determine the
employee's exact tax obligation at a single rate of 15 percent
on wages--after several major adjustments--and withhold that amount.
This amount would satisfy the taxpayer's entire federal income tax
obligation for the year, absent some unforeseeable changes in
circumstances or fraud.

The FASST plan would be available for couples earning up to $100,000
in wages and no more than $5,000 in other income such as interest,
dividends or capital gains. In the case of individual taxpayers, the
wage and non-wage income limits would be $50,000 and $2,500,
respectively. Popular deductions would continue under this plan: the
standard deduction, personal exemptions, the child care credit and
Earned Income Tax Credit, along with a deduction for home mortgage
interest expenses and property taxes. Our bill would include critical
savings incentives for average Americans by exempting up to $5,000 of
all interest, dividends and capital gains income from taxation for
couples, $2,500 for singles. Moreover, savings contributions made
through employers would be excluded from the wage calculations in the
beginning.
Consider some of the advantages of this hassle-free plan:
No taxpayers would lose. If a taxpayer prefers to file an ordinary
return, he or she would still have that choice, and no one would be
forced to lose a tax deduction that he or she wants to keep.
Wages would be taxed at a single, low rate of 15 percent.
A deduction for home mortgage interest expenses, the Earned Income
Tax Credit, and other popular parts of our current tax code would be
preserved. Other major tax reform plans would eliminate those
deductions, which many people count on.
The alternative minimum tax, AMT and the marriage penalty would be
eliminated.
Compliance costs for taxpayers and government alike would fall. If 70
million Americans chose the FASST option, hundreds of millions of
dollars now spent on paper pushing could be used in more productive
ways.
Those taxpayers who continued to file under the old system would get
relief too. The plan would reduce the marriage penalty by making the
standard deduction for married couples double the amount available for
single filers. Also, it would virtually eliminate the complicated AMT
for most sole proprietors, farmers and other small businesses by
exempting the first $1 million in self-employment income from the AMT
calculations. This legislation also would provide a 50 percent credit
for up to $1,000 in expenses that businesses might incur implementing
the FASST plan. In addition, it would grant taxpayers who continue to
use the current system a 50 percent tax credit for up to $200 in tax
preparer expenses, provided they file their returns electronically.
Finally, the bill would offer individuals a substantial incentive for
savings and investment by exempting up to $500 of dividend and interest
income, $1,000 for couples.
Mr. President, millions of Americans in this country are tired of
spending countless hours wading through complex forms and instruction
books. Our bill is both simple and fair, and it gives most taxpayers
the choice to avoid the annual nightmare that the federal tax system
has become.
In testimony before a Senate subcommittee earlier this year, IRS
Commissioner Rossotti testified that it's ``unquestionable that this
bill provides significant tax simplification.'' Imagine how much better
life would be if April 15th were just another day. Under the FASST
plan, for millions of Americans, that could be true. We urge our
colleagues to support this important legislation, which we think will
go a long way toward eliminating the burden of ``tax day'' for tens of
millions of taxpayers in the future.
I ask unanimous consent that the full text of this legislation be
inserted in the Record immediately following my statement.
There being no objection, the bill was ordered to be printed in the
Record as follows:

S. 3087

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; AMENDMENT OF 1986 CODE.

(a) Short Title.--This Act may be cited as the ``Fair and
Simple Shortcut Tax Plan''.
(b) Amendment of 1986 Code.--Except as otherwise expressly
provided, whenever in this Act an amendment or repeal is
expressed in terms of an amendment to, or repeal of, a
section or other provision, the reference shall be considered
to be made to a section or other provision of the Internal
Revenue Code of 1986.

TITLE I--FAIR AND SIMPLE SHORTCUT TAX PLAN

SEC. 101. FAIR AND SIMPLE SHORTCUT TAX PLAN.

(a) In General.--Subchapter A of chapter 1 (relating to
determination of tax liability) is amended by adding at the
end the following:

``PART VIII--FAIR AND SIMPLE SHORTCUT TAX PLAN

``Sec. 60. Tax on individuals electing FASST.
``Sec. 60A. Computation of applicable taxable income.
``Sec. 60B. Credit against tax.
``Sec. 60C. Election.
``Sec. 60D. Liability for tax.

``SEC. 60. TAX ON INDIVIDUALS ELECTING FASST.

``(a) Tax Imposed.--If an individual who is an eligible
taxpayer has an election in effect under this part for a
taxable year, there is hereby imposed a tax equal to 15
percent of the taxpayer's applicable taxable income.
``(b) Coordination With Other Taxes.--The tax imposed by
this section shall be in

[[Page S8950]]

lieu of any other tax imposed by this subchapter. The
preceding sentence shall not apply to taxes described in
section 26(b)(2) other than subparagraph (A) thereof.

``SEC. 60A. COMPUTATION OF APPLICABLE TAXABLE INCOME.

``(a) In General.--For purposes of this part, the term
`applicable taxable income' means the taxpayer's applicable
wage income, minus--
``(1) the standard deduction,
``(2) the deductions for personal exemptions provided in
section 151, and
``(3) the homeowner expense deduction allowable under
subsection (c).
``(b) Applicable Wage Income.--For purposes of this part--
``(1) In general.--The term `applicable wage income' means,
with respect to an individual, wages received by such
individual for the taxable year for services performed as an
employee of an employer.
``(2) Employment.--The term `employment' has the meaning
given such term in section 3121(b).
``(3) Wages.--The term `wages' has the meaning given such
term in section 3401(a).
``(c) Homeowner Expense Deduction Allowed.--
``(1) In general.--For purposes of subsection (a), there
shall be allowed as a deduction for the taxable year an
amount equal to the product of--
``(A) $5,000, and
``(B) a fraction, the numerator of which is the number of
months in such year in which the taxpayer owned and used
property as the taxpayer's principal residence (within the
meaning of section 121) and the denominator of which is 12.
``(2) Special rules.--For purposes of this subsection--
``(A) Married individuals.--In the case of a married
individual, the ownership and use requirements of paragraph
(1) shall be treated as met for any month if either spouse
meets them.
``(B) Divorce; cooperative housing.--Rules similar to the
rules of paragraphs (3) and (4) of section 121(d) shall
apply.
``(C) Out-of-residence care.--If a taxpayer becomes
physically or mentally impaired while owning and using
property as a principal residence, then the taxpayer shall be
treated as meeting the ownership and use requirements of
paragraph (1) during any period the taxpayer owns the
property and resides in any facility (including a nursing
home) licensed by a State or political subdivision to care
for an individual in the taxpayer's condition.

``SEC. 60B. CREDITS AGAINST TAX.

``No credit shall be allowed against the tax imposed by
this part other than--
``(1) the credit allowable under section 24 (relating to
child tax credit),
``(2) the credit allowable under section 32 (relating to
earned income credit), and
``(3) the credit for overpayment of tax under section 6402.

``SEC. 60C. ELECTION.

``(a) Election.--An eligible taxpayer may elect to have
this part apply for any taxable year.
``(b) Eligible Taxpayer.--
``(1) In general.--For purposes of this part, the term
`eligible taxpayer' means, with respect to any taxable year,
a taxpayer who receives--
``(A) applicable wage income in an amount not in excess
of--
``(i) $100,000, in the case of a taxpayer described in
section 1(a), and
``(ii) 50 percent of the amount in effect under clause (i)
for the taxable year, in the case of any other taxpayer, and
``(B) gross income (determined without regard to applicable
wage income) in an amount not in excess of--
``(i) $5,000, in the case of a taxpayer described in
section 1(a), and
``(ii) 50 percent of the amount in effect under clause (i)
for the taxable year, in the case of any other taxpayer.
``(2) Exclusions.--The term `eligible taxpayer' shall not
include--
``(A) a married individual unless the individual and the
spouse both have the same taxable year and both make the
election,
``(B) a nonresident alien individual, or
``(C) an estate or trust.
``(3) Inflation adjustments.--In the case of a taxable year
beginning after 2001, each dollar amount under paragraph (1)
shall be increased by an amount equal to--
``(A) such dollar amount, multiplied by
``(B) the cost-of-living adjustment determined under
section 1(f)(3) for the calendar year in which the taxable
year begins, determined by substituting `calendar year 2000'
for `calendar year 1992' in subparagraph (B) thereof.
``(b) Form of Election.--
``(1) In general.--An individual shall make an election to
have this part apply for any taxable year by furnishing an
election certificate to such individual's employer not later
than the close of the first payroll period after the
individual commences work for such employer or January 1 of
the taxable year to which such election relates, whichever is
later.
``(2) Contents of certificate.--The election certificate
furnished under paragraph (1) shall--
``(A) contain such information as the Secretary requires to
enable the Secretary to carry out this part and enable the
employer to withhold the appropriate amount of wages under
section 3402, and
``(B) contain a certification by the employee under penalty
of perjury that the information furnished is correct.
``(3) Amendment of certificate.--A new election certificate
shall be filed within 30 days after the date of any change in
the information required under paragraph (2).
``(4) Election certificate.--For purposes of this section,
the term `election certificate' means the withholding
exemption certificate used for purposes of chapter 24.
``(5) Advance payment of earned income amount.--The
Secretary shall prescribe such regulations as may be
necessary to allow an eligible taxpayer to treat an election
certificate furnished under this section as including an
earned income eligibility certificate under section 3507 in
the case of an eligible individual claiming the earned income
credit under section 32.

``(c) Period Election In Effect.--
``(1) In general.--Except as provided in paragraph (2), an
election under this section shall be effective for the
taxable year for which it is made and all subsequent taxable
years.
``(2) Termination.--An election under this part shall
terminate with respect to an individual for any taxable year
and all subsequent taxable years if at any time during such
taxable year such individual--
``(A) is no longer an eligible taxpayer,
``(B) elects to terminate such individual's election, or
``(C) commits fraud with respect to any information
required to be provided under this section.
``(d) Safe Harbor for Ineligibility.--In the case of an
individual who has a termination under subsection (c)(2)(A),
no addition to tax under section 6654 shall apply to any
underpayment attributable to eligible wage income of such
individual for such taxable year if such underpayment was not
due to fraud, negligence, or disregard of rules or
regulations (within the meaning of section 6662).
``(e) Marital Status.--For purposes of this part, marital
status shall be determined under section 7703.

``SEC. 60D. LIABILITY FOR TAX.

``(a) Amount Withheld Treated as Satisfaction of
Liability.--Except as provided in this section, any amount
withheld as tax under section 3402(t) for an eligible
individual with an election in effect under section 60C for
the taxable year shall be treated as complete satisfaction of
liability for the tax imposed by section 60(a) for such
taxable year.
``(b) Exceptions.--Notwithstanding subsection (a)--
``(1) Overpayment.--If the amount withheld as tax under
section 3402(t) for an eligible taxpayer with an election in
effect under section 60C for the taxable year exceeds the tax
imposed under section 60(a) for the taxable year, the excess
amount shall be treated as an overpayment for purposes of
section 6402.
``(2) Underpayment.--
``(A) In general.--If the Secretary determines that the
amount withheld as tax under section 3402(t) for an eligible
taxpayer is less than the tax imposed under section 60(a) and
such underpayment is not due to fraud, the Secretary may
assess and collect such underpayment in the same manner as if
such underpayment were on account of a mathematical or
clerical error appearing on a return of the individual for
the taxable year.
``(B) De minimis exception.--If the amount by which the tax
imposed by section 60(a) exceeds the amount withheld as tax
under section 3402(t) by less than the lesser of $100 or 10
percent of the tax so imposed, the taxpayer shall be treated
as having no underpayment.
``(c) Regulations.--The Secretary shall prescribe such
regulations as may be necessary to carry out the provisions
of this section, including regulations--
``(1) to allow a refund of an overpayment under subsection
(b)(1) to a taxpayer without requiring additional filing of
information by the taxpayer, and
``(2) to notify taxpayers of eligibility for credits
allowable under section 60B and allow a claim and refund of
any credit not claimed by an eligible taxpayer during the
taxable year.''.
(b) Withholding From Wages.--Section 3402 (relating to
income tax collected at source) is amended by adding at the
end the following new subsection:
``(t) Withholding Under the Fair and Simple Shortcut Tax
Plan.--
``(1) In general.--An employer making payment of wages to
an individual with an election in effect under section 60C
shall deduct and withhold upon such wages a tax (in lieu of
the tax required to be deducted and withheld under subsection
(a)) determined in accordance with tables prescribed by the
Secretary in accordance with paragraph (2).
``(2) Withholding tables.--The Secretary shall prescribe 1
or more tables which set forth amounts of wages and income
tax to be deducted and withheld based on information
furnished to the employer in the employee's election form and
to ensure that the aggregate amount withheld from such
employee's wages approximates the tax liability of such
individual for the taxable year. Any tables prescribed under
this paragraph shall--
``(A) apply with respect to the amount of wages paid during
such periods as the Secretary may prescribe, and
``(B) be in such form, and provide for such amounts to be
deducted and withheld, as the

[[Page S8951]]

Secretary determines to be most appropriate to carry out the
purposes of this chapter and to reflect the provisions of
chapter 1 applicable to such periods, including taking into
account any credits allowable under section 24 or 32.
The Secretary shall provide that any other provision of this
section shall not apply to the extent such provision is
inconsistent with the provisions of this subsection.
``(2) Election Certificate.--
``(A) In general.--In lieu of a withholding exemption
certificate, an employee shall furnish the employer with a
signed election certificate and any amended election
certificate at such time and containing such information as
required under section 60C.
``(B) When certificate takes effect.--
``(i) First certificate furnished.--An election certificate
furnished to an employer in cases in which no previous such
certificate is in effect shall take effect as of the
beginning of the first payroll period ending, or the first
payment of wages made without regard to a payroll period, on
or after the date on which such certificate is so furnished.
``(ii) Replacement certificate.--An election certificate
furnished to an employer which replaces an earlier
certificate shall take effect as of the beginning of the 1st
payroll period ending (or the 1st payment of wages made
without regard to a payroll period) on or after the 30th day
after the on which the replacement certificate is so
furnished.''.
(c) Waiver of Requirement to File Return of Income.--
Subsection (a)(1)(A) of section 6012 (relating to persons
required to make return of income) is amended by striking
``or'' at the end of clause (iii), by striking the period at
the end of clause (iv) and inserting ``, or'', and by
inserting after clause (iv) the following new clause:
``(v) who is an eligible taxpayer with an election in
effect for the taxable year under section 60C.''
(d) Technical and Conforming Amendments.--
(1) The table of parts for subchapter A of chapter 1 is
amended by adding at the end the following new item:

``Part VIII. Fair and Simple Shortcut Tax Plan.''
(2) Section 6654(a) is amended by inserting ``and section
60C(d)'' after ``this section''.
(e) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2000.

SEC. 102. TAX CREDIT FOR EMPLOYER FASST PLAN STARTUP COSTS.

(a) In General.--Subpart D of part IV of subchapter A of
chapter 1 (relating to business related credits) is amended
by adding at the end the following new section:

``SEC. 45D. FASST PLAN EMPLOYER START-UP CREDIT.

``(a) Credit Allowed.--
``(1) In general.--For purposes of section 38, the Fair and
Simple Shortcut Tax plan start-up credit determined under
this section for the taxable year is an amount equal to the
lesser of--
``(A) 50 percent of eligible start-up costs of the taxpayer
for the taxable year, or
``(B) $1,000.
``(2) Maximum credit.--The maximum credit allowed with
respect to a taxpayer under this subsection for all taxable
years shall not exceed the amount determined under paragraph
(1) for all taxable years.
``(b) Eligible start-up costs.--For purposes of this
section, the term `eligible start-up costs' means amounts
paid or incurred by an employer (or any predecessor) during
the 1 year period beginning on the date on which the employer
first employs 1 or more employees with an election in effect
under section 60C for the taxable year, in connection with
carrying out the withholding requirements of section 3402.
``(c) Credit Available for Each Worksite.--If a taxpayer
maintains a separate worksite for employees, such person
shall be treated as a single employer with respect to such
worksite for purposes of the credit allowable under
subsection (a).''
(b) Conforming Amendments.--
(1) Section 38(b) is amended--
(A) by striking ``plus'' at the end of paragraph (11),
(B) by striking the period at the end of paragraph (12),
and inserting a comma and ``plus'', and
(C) by adding at the end the following new paragraph:
``(13) the Fair and Simple Shortcut Tax plan start-up
credit determined under section 45D.''
(2) The table of sections for subpart D of part IV of
subchapter A of chapter 1 is amended by adding at the end the
following new item:

``Sec. 45D. Fair and Simple Shortcut Tax plan start-up credit.''
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2000.

TITLE II--PROVISIONS TO SIMPLIFY THE TAX CODE

SEC. 201. REDUCTION IN MARRIAGE PENALTY IN STANDARD
DEDUCTION.

(a) In General.--Section 63(c)(2) (relating to basic
standard deduction) is amended to read as follows:
``(2) Basic standard deduction.--For purposes of paragraph
(1), the basic standard deduction is--
``(A) 200 percent of the amount under subparagraph (C) for
the taxable year, in the case of a joint return or a
surviving spouse (as defined in section 2(a)),
``(B) 150 percent of such amount, in the case of a head of
household (as defined in section 2(b)), and
``(C) $3,000, in the case of an individual who is not
married and who is not a surviving spouse or head of
household or a married individual filing a separate return.''
(b) Effective Date.--The amendment made by this section
shall apply to taxable years beginning after December 31,
2000.

SEC. 202. ALTERNATIVE MINIMUM TAX EXCLUSION OF SELF-
EMPLOYMENT INCOME AND CERTAIN ITEMS OF
PREFERENCE AND ADJUSTMENTS.

(a) Increased Exemption for Self-Employment Income.--
Section 55(d)(1) (relating to exemption amount for taxpayers
other than corporations) is amended to read as follows:
``(1) Exemption amount for taxpayers other than
corporations.--In the case of a taxpayer other than a
corporation, the term `exemption amount' means the sum of--
``(A) an amount equal to--
``(i) $45,000 in the case of--

``(I) a joint return, or
``(II) a surviving spouse,

``(ii) $33,750 in the case of an individual who--

``(I) is not a married individual, or
``(II) is not a surviving spouse, and

``(iii) $22,500 in the case of--

``(I) a married individual who files a separate return, or
``(II) an estate or trust, and

``(B) an amount equal to the lesser of--
``(i) the self employment income (as defined in section
1402(b)) of the taxpayer for the taxable year, or
``(ii) $1,000,000.
For purposes of this paragraph, the term `surviving spouse'
has the meaning given to such term by section 2(a), and
marital status shall be determined under section 7703.''.
(b) Exclusion of Certain Items of Preference and
Adjustments.--Section 55 (relating to alternative minimum tax
imposed) is amended by adding at the end the following new
subsection:
``(f) Special Rule for Small Businesses.--
``(1) In general.--For purposes of this part, in computing
the alternative minimum taxable income of a taxpayer to which
this subsection applies for any taxable year--
``(A) no adjustments provided in section 56 which are
attributable to a trade or business of the taxpayer shall be
made, and
``(B) taxable income shall not be increased by any item of
tax preference described in section 57 which is so
attributable.
``(2) Application.--
``(A) In general.--This subsection shall apply to a
taxpayer for a taxable year if the taxpayer is not a
corporation and the gross receipts of the taxpayer for the
taxable year from all trades or businesses do not exceed
$1,000,000.
``(B) Special rules.--Rules similar to the rules of
paragraphs (2), (3)(B), and (3)(C) of section 448(c) shall
apply for purposes of this subsection.''.
(c) Conforming Amendments.--Section 55(d)(3) is amended--
(1) by striking ``paragraph (1)(A)'' and inserting
``paragraph (1)(A)(i)'' in subparagraph (A),
(2) by striking ``paragraph (1)(B)'' and inserting
``paragraph (1)(A)(ii)'' in subparagraph (B),
(3) by striking ``paragraph (1)(C)'' and inserting
``paragraph (1)(A)(iii)'' in subparagraph (C), and
(4) by striking ``paragraph (1)(C)(i)'' and inserting
``paragraph (1)(A)(iii)(I)'' in the second sentence.
(d) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2000.

SEC. 203. NONREFUNDABLE TAX CREDIT FOR TAX PREPARATION
EXPENSES.

(a) In General.--Subpart A of part IV of subchapter A of
chapter 1 (relating to nonrefundable personal credits) is
amended by adding at the end the following new section:

``SEC. 25B. TAX PREPARATION EXPENSES.

``(a) Allowance of Credit.--In the case of an individual,
there shall be allowed as a credit against the tax imposed by
this chapter for the taxable year an amount equal to the
lesser of--
``(1) 50 percent of the qualified tax preparation expenses
of the taxpayer for the taxable year, or
``(2) $100.
``(b) Qualified Tax Preparation Expenses.--For purposes of
this section, the term `qualified tax preparation expenses'
means expenses paid or incurred during the taxable year by an
individual in connection with the preparation of the
taxpayer's Federal income tax return for such taxable year,
but only if such return is electronically filed. Such term
shall include any expenses related to an income tax return
preparer.
``(c) Denial of Deduction.--No deduction shall be allowed
under this chapter for any amount taken into account in
determining the credit under this section.''.
(b) Conforming Amendment.--The table of sections for
subpart A of part IV of subchapter A of chapter 1 is amended
by adding at the end the following new item:

``Sec. 25B. Tax preparation expenses.''
(c) Effective Date.--The amendments made by this section
shall apply to expenses paid or incurred for taxable years
beginning after December 31, 2000.

SEC. 204. EXEMPTION OF CERTAIN INTEREST AND DIVIDEND INCOME
FROM TAX.

(a) In General.--Part III of subchapter B of chapter 1
(relating to amounts specifically

[[Page S8952]]

excluded from gross income) is amended by inserting after
section 115 the following new section:

``SEC. 116. PARTIAL EXCLUSION OF DIVIDENDS AND INTEREST
RECEIVED BY INDIVIDUALS.

``(a) Exclusion From Gross Income.--In the case of an
individual who does not have an election in effect under
section 60C for the taxable year, gross income does not
include dividends and interest otherwise includible in gross
income which are received during the taxable year by such
individual.
``(b) Limitations.--
``(1) Maximum amount.--The aggregate amount excluded under
subsection (a) for any taxable year shall not exceed $500
($1,000 in the case of a joint return).
``(2) Certain dividends excluded.--Subsection (a) shall not
apply to any dividend from a corporation which for the
taxable year of the corporation in which the distribution is
made is a corporation exempt from tax under section 521
(relating to farmers' cooperative associations).
``(c) Special Rules.--For purposes of this section--
``(1) Exclusion not to apply to capital gain dividends from
regulated investment companies and real estate investment
trusts.--

``For treatment of capital gain dividends, see sections 854(a) and
857(c).
``(2) Certain nonresident aliens ineligible for
exclusion.--In the case of a nonresident alien individual,
subsection (a) shall apply only in determining the taxes
imposed for the taxable year pursuant to sections 871(b)(1)
and 877(b).
``(3) Dividends from employee stock ownership plans.--
Subsection (a) shall not apply to any dividend described in
section 404(k).''.
(b) Conforming Amendments.--
(1) Subparagraph (C) of section 32(c)(5) is amended by
striking ``or'' at the end of clause (i), by striking the
period at the end of clause (ii) and inserting ``; or'', and
by inserting after clause (ii) the following new clause:
``(iii) interest and dividends received during the taxable
year which are excluded from gross income under section
116.''.
(2) Subparagraph (A) of section 32(i)(2) is amended by
inserting ``(determined without regard to section 116)''
before the comma.
(3) Subparagraph (B) of section 86(b)(2) is amended to read
as follows:
``(B) increased by the sum of--
``(i) the amount of interest received or accrued by the
taxpayer during the taxable year which is exempt from tax,
and
``(ii) the amount of interest and dividends received during
the taxable year which are excluded from gross income under
section 116.''.
(4) Subsection (d) of section 135 is amended by
redesignating paragraph (4) as paragraph (5) and by inserting
after paragraph (3) the following new paragraph:
``(4) Coordination with section 116.--This section shall be
applied before section 116.''.
(5) Paragraph (2) of section 265(a) is amended by inserting
before the period ``, or to purchase or carry obligations or
shares, or to make deposits, to the extent the interest
thereon is excludable from gross income under section 116''.
(6) Subsection (c) of section 584 is amended by adding at
the end the following new flush sentence:

``The proportionate share of each participant in the amount
of dividends or interest received by the common trust fund
and to which section 116 applies shall be considered for
purposes of such section as having been received by such
participant.''.
(7) Subsection (a) of section 643 is amended by
redesignating paragraph (7) as paragraph (8) and by inserting
after paragraph (6) the following new paragraph:
``(7) Dividends or interest.--There shall be included the
amount of any dividends or interest excluded from gross
income pursuant to section 116.''.
(8) Section 854(a) is amended by inserting ``section 116
(relating to partial exclusion of dividends and interest
received by individuals) and'' after ``For purposes of''.
(9) Section 857(c) is amended to read as follows:
``(c) Restrictions Applicable to Dividends Received From
Real Estate Investment Trusts.--
``(1) Treatment for section 116.--For purposes of section
116 (relating to partial exclusion of dividends and interest
received by individuals), a capital gain dividend (as defined
in subsection (b)(3)(C)) received from a real estate
investment trust which meets the requirements of this part
shall not be considered as a dividend.
``(2) Treatment for section 243.--For purposes of section
243 (relating to deductions for dividends received by
corporations), a dividend received from a real estate
investment trust which meets the requirements of this part
shall not be considered as a dividend.''.
(10) The table of sections for part III of subchapter B of
chapter 1 is amended by inserting after the item relating to
section 115 the following new item:

``Sec. 116. Partial exclusion of dividends and interest received by
individuals.''.
(c) Effective Date.--The amendments made by this section
shall apply to taxable years beginning after December 31,
2000.
______

By Mr. LEVIN:
S. 3088. A bill to require the Secretary of Health and
Human Services to promulgate regulations regarding allowable
costs under the Medicaid Program for school based services
provided to children with disabilities; to the Committee on
Finance.

administrative services adjustment

Mr. LEVIN. Mr. President, today I am introducing legislation which
provides fair relief to schools in Michigan and other states.
In 1993, the state of Michigan and our school districts worked out an
agreement which would provide schools a portion of Federal Medicaid
dollars based on school based health related activities that were being
provided to eligible children receiving special education services.
When these school superintendents looked around in 1996, they saw a
similarly situated state which was providing administrative services to
help special needs kids, and they decided to follow suit for children
in Michigan. Michigan then implemented the Administrative Outreach
component of school based services based on a program that had been in
operation in that state for the previous two years.
Recently, HCFA disallowed $103.6 million in claims submitted by the
state of Michigan to reimburse the schools for services already
rendered in this effort. It is simply unfair that these school
districts are now being penalized when they have been trying to provide
health services through the schools for special needs kids in ways used
in other states and after relying on HCFA regional guidance.
I have met with a large group of Michigan school superintendents and
their staff and I know how committed they are to helping children with
special needs. Apparently, the rules need to be clarified, and in a
meeting with HCFA that the Michigan superintendents had this week, HCFA
committed to sitting down with the education community by the end of
this month to finalize an administrative guide regarding claims for
reimbursement. That is surely an appropriate goal, but in the meantime,
Michigan claims have been disallowed although the state relied on
regional HCFA guidance. While national guidance is being clarified, we
should not penalize states who have acted reasonably based on existing
guidance.
I believe Michigan school superintendents when they say they believed
they were acting appropriately in providing services for children with
special educational needs. These are honest hardworking people trying
to run school districts on tight budgets. I am introducing this
legislation because I believe any attempt to penalize schools who acted
in good faith will ultimately hurt special needs kids as well as our
schools themselves.
______

By Mr. ALLARD (for himself and Mr. Campbell):
S. 3090. A bill to establish the Rocky Flats National
Wildlife Refuge in the State of Colorado, and for other
purposes; to the Committee on Armed Services.

rocky flats national wildlife refuge act of 2000

Mr. ALLARD. Mr. President, I rise today, with Senator Ben Nighthorse
Campbell, to introduce a very important piece of legislation for my
state of Colorado and this nation--The Rocky Flats National Wildlife
Refuge Act. My colleague, Representative Mark Udall, is introducing
companion legislation in the House cosponsored by the entire Colorado
delegation.

Today we begin a new chapter in the history of Rocky Flats. This
legislation will permanently designate the Rocky Flats Environmental
Technology Site as a National Wildlife Refuge following the cleanup and
closure of the site. It ensures that the Federal Government will retain
full liability and ownership of this former nuclear weapons facility.
This legislation will transform Rocky Flats from producing weapons to
protecting wildlife. It will ensure that our children and grandchildren
will be able to enjoy the wildlife and open space that currently exists
at Rocky Flats.
This is a tremendous achievement. Once the bill is enacted, we will
see Rocky Flats move from being an active nuclear weapons site into an
active refuge for wildlife and wild flowers in less than two decades.
An accomplishment which no one thought was possible.
My vested interest in Rocky Flats began during the 1980's when I was
the

[[Page S8953]]

Chairman of the State Senate Committee on Health, Environment, Welfare
and Institutions. Although I supported the national security mission of
the Rocky Flats site prior to closure, I believe that the Department of
Energy must also ensure the safety and health of all Coloradans and the
environment. When the Rocky Flats site was shut down in 1990, cleaning
up and closing down the site became one of my top legislative
priorities and will remain so until this project is complete.
So where did the idea come from to turn Rocky Flats, a former nuclear
weapons production facility, into a National Wildlife Refuge?
My experience with wildlife refuge designations began with
Congresswoman Schroeder at the Rocky Mountain Arsenal in 1992. We
worked on a bill very similar to the one we are here to discuss today,
which designated the Arsenal as a National Wildlife Refuge. Given the
success we experienced at the Rocky Mountain Arsenal, I am confident
this is an appropriate designation for Rocky Flats.
Last year, I became the Strategic Subcommittee Chairman of the Senate
Armed Services Committee, which has direct oversight of former DoE
weapons facilities including Rocky Flats. This is the first site in the
DoE complex to receive funding for cleanup and closure, and will
therefore be a role model for other sites in the complex. As Chairman
of the Subcommittee, I will continue to work closely with my colleagues
to educate them on the importance of cleaning up and closing down Rocky
Flats so it can be utilized as a National Wildlife Refuge. This
education extends beyond the cleanup and closure of Rocky Flats to the
importance of cleaning up and closing of all the former DoE weapons
sites.
To this end, Congressman Udall and I have worked in a bipartisan
manner, with the Department of Energy, the EPA, the State of Colorado,
the local governments and the Rocky Flats stakeholders to produce the
proposed Rocky Flats National Wildlife Refuge Act. It has been hard
work and with many discussion drafts, but in the end I believe we have
produced a bill that the communities surrounding Rocky Flats can and
will be proud of.
It is important to understand that this legislation maintains that
the Rocky Flats site will remain in permanent Federal ownership, and
that the administrative transfer of this site from DoE to the Fish and
Wildlife Service will take place after the cleanup and closure of the
site is complete. While cleanup is still our top priority,
determination of official closure is determined by the Environmental
Protection Agency's signing of the final on-site record of decision.
There are many components of this bill which I will summarize as
follows:
The sponsors of the legislation recognize the historic importance of
the Lindsay Ranch homestead facilities and this legislation guarantees
the ranch's preservation.
Additionally, this bill ensures that the site will remain a unified
site, therefore disallowing the annexation of land to any local
government, or for the construction of through roads. The only roads
that may be constructed on the site would be by the Fish and Wildlife
Service for the management of the refuge.
Currently, there is a provision in this legislation to allow the
Secretary of Energy and the Secretary of the Interior to authorize a
transportation right of-way on the eastern boundary of the site for
transportation improvements along Indiana Street. We are aware of the
continued evaluation of this issue and want this section of the bill to
be consistent with the needs of the State of Colorado and the local
governments.
With respect to the transfer of management responsibilities and
jurisdiction over Rocky Flats, this bill requires the Department of
Energy and the Fish and Wildlife Service to publish in the Federal
Register a Memorandum of Understanding one year after the enactment of
this Act. This Memorandum of Understanding will address administrative
matters such as the division of responsibilities between the two
agencies until the official transfer of the site occurs. This
legislation clearly states that no funding designated for cleanup and
closure of the site will be used for these activities.
It is important that the transfer of the site from the Department of
Energy to the Fish and Wildlife Service exclude any property that must
be retained by DoE for future onsite monitoring, as well as property
which must be retained for protection of human health and safety.

The improvements necessary for the site to be managed as a wildlife
refuge will be completed at no cost to the Secretary of the Interior.
Therefore, the Secretary of Interior will need to identify appropriate
improvement needs and submit this request to the Secretary of Energy in
writing. This legislation also clarifies that in the event of future
cleanup activities, this action will take priority over wildlife
management. These two agencies must continue to work with each other
towards their missions.
One of the most important directives in this Act states that
``nothing in this Act affects the level of cleanup and closure at the
Rocky Flats site required under the Rocky Flats Cleanup Agreement or
any Federal or State law.'' Through the ongoing discussions that
Congressman Udall and I have had with the Rocky Flats stakeholders we
believe it is important to reiterate that this bill should not be used
as a mechanism to drive the level of cleanup. We are confident that
this language clarifies this issue. Our primary goal remains and will
continue to remain the on-going cleanup and closure of Rocky Flats.
And, nothing in this bill affects the on-going cleanup and closure
activities at the Rocky Flats.
Once the site is transferred to the Fish and Wildlife Service, the
refuge will be managed in accordance with the National Wildlife Refuge
System Act to preserve wildlife, enhance wildlife habitat, conserve
threatened and endangered species, provide education opportunities and
scientific research, as well as recreation.
We recognize the importance of the locally elected officials and
stakeholders in the effectiveness and success of this bill. Therefore,
we want to ensure their continued contribution at Rocky Flats. Through
this bill we direct the Fish and Wildlife Service to convene a public
process to include input on the management of the site. The public
process will provide a forum for recommendations to be given to the
Fish and Wildlife Service on issues including the site operations,
transportation improvements, leasing land to the National Renewable
Energy Laboratory, perimeter fences, the development of a Rocky Flats
museum and visitors center. Upon the completion of this report by the
Fish and Wildlife Service, a report will be submitted to Congress to
identify the recommendations resulting from the public process.
We have received a lot of input with respect to private property
rights. This legislation recognizes and preserves these property and
access rights, which include mineral rights, water and easement rights,
and utility rights-of-ways. This legislation does direct the Secretary
of Energy to seek to purchase mineral rights from willing sellers. For
management purposes, this Act provides the Secretary of Energy and the
Secretary of Interior the authority to impose reasonable conditions on
the access to private property rights for cleanup and refuge management
purposes.
Additionally, this bill provides the Secretary of Energy with the
authority to allow Public Service Company of Colorado to construct an
extension from an existing extension line on the site.
As a tribute to the Cold War and those who worked at Rocky Flats both
prior to and after the site closure, Congressman Udall and I, through
this legislation, authorize the establishment of a Rocky Flats museum
to commemorate the site. This bill requires that the creation of the
museum shall be studied, and a report shall be submitted to Congress
within three years following the enactment of this act.
Lastly, this bill directs the Department of Energy and the Fish and
Wildlife Service to inform Congress on the costs associated with the
implementation of this Act.
This process has moved forward successfully thanks to the hard work
of the local governments and the Rocky Flats stakeholders. I also want
to thank Representative Udall for the bi-partisan manner in which he
and his staff worked with me and my office. Rocky Flats, like all other
cleanup sites, is bigger than partisan politics and this effort proves
it.

[[Page S8954]]

Once clean up and closure is accomplished in 2006, I look forward to
returning to Rocky Flats for the dedication of new Rocky Flats National
Wildlife Refuge.
I ask unanimous consent that the bill be printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record as follows:

S. 3090

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Rocky Flats National
Wildlife Refuge Act of 2000''.

SEC. 2. FINDINGS AND PURPOSE.

(a) Findings.--Congress finds the following:
(1) The Federal Government, through the Atomic Energy
Commission, acquired the Rocky Flats site in 1951 and began
operations there in 1952. The site remains a Department of
Energy facility. Since 1992, the mission of the Rocky Flats
site has changed from the production of nuclear weapons
components to cleanup and closure in a manner that is safe,
environmentally and socially responsible, physically secure,
and cost-effective.
(2) The site has generally remained undisturbed since its
acquisition by the Federal Government.
(3) The State of Colorado is experiencing increasing growth
and development, especially in the metropolitan Denver Front
Range area in the vicinity of the Rocky Flats site. That
growth and development reduces the amount of open space and
thereby diminishes for many metropolitan Denver communities
the vistas of the striking Front Range mountain backdrop.
(4) Some areas of the site contain contamination and will
require further remediation. The national interest requires
that the ongoing cleanup and closure of the entire site be
completed safely, effectively, and without unnecessary delay
and that the site thereafter be retained by the United States
and managed so as to preserve the value of the site for open
space and wildlife habitat.
(5) The Rocky Flats site provides habitat for many wildlife
species, including a number of threatened and endangered
species, and is marked by the presence of rare xeric
tallgrass prairie plant communities. Establishing the site as
a unit of the National Wildlife Refuge System will promote
the preservation and enhancement of those resources for
present and future generations.
(b) Purpose.--The purpose of this Act is to provide for the
establishment of the Rocky Flats site as a national wildlife
refuge while creating a process for public input on refuge
management and ensuring that the site is thoroughly and
completely cleaned up.

SEC. 3. DEFINITIONS.

In this Act:
(1) Cleanup and closure.--The term ``cleanup and closure''
means the remedial actions and decommissioning activities
being carried out at Rocky Flats by the Department of Energy
under the 1996 Rocky Flats Cleanup Agreement, the closure
plans and baselines, and any other relevant documents or
requirements.
(2) Coalition.--The term ``Coalition'' means the Rocky
Flats Coalition of Local Governments established by the
Intergovernmental Agreement, dated February 16, 1999, among--
(A) the city of Arvada, Colorado;
(B) the city of Boulder, Colorado;
(C) the city of Broomfield, Colorado;
(D) the city of Westminster, Colorado;
(E) the town of Superior, Colorado;
(F) Boulder County, Colorado; and
(G) Jefferson County, Colorado.
(3) Hazardous substance.--The term ``hazardous substance''
has the meaning given the term in section 101 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601).
(4) Pollutant or contaminant.--The term ``pollutant or
contaminant'' has the meaning given the term in section 101
of the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601).
(5) Refuge.--The term ``refuge'' means the Rocky Flats
National Wildlife Refuge established under section 7.
(6) Response action.--The term ``response action'' has the
meaning given the term ``response'' in section 101 of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601) or any similar
requirement under State law.
(7) RFCA.--The term ``RFCA'' means the Rocky Flats Cleanup
Agreement, an intergovernmental agreement, dated July 19,
1996, among--
(A) the Department of Energy;
(B) the Environmental Protection Agency; and
(C) the Department of Public Health and Environment of the
State of Colorado.
(8) Rocky flats.--The term ``Rocky Flats'' means the Rocky
Flats Environmental Technology Site, Colorado, a defense
nuclear facility, as depicted on the map entitled ``Rocky
Flats Environmental Technology Site'', dated July 15, 1998.
(9) Rocky flats trustees.--The term ``Rocky Flats
Trustees'' means the Federal and State of Colorado entities
that have been identified as trustees for Rocky Flats under
section 107(f)(2) of the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9607(f)(2)).
(10) Secretary.--The term ``Secretary'' means the Secretary
of Energy.

SEC. 4. FUTURE OWNERSHIP AND MANAGEMENT.

(a) Federal Ownership.--Unless Congress provides otherwise
in an Act enacted after the date of enactment of this Act,
all right, title, and interest of the United States, held on
or acquired after the date of enactment of this Act, to land
within the boundaries of Rocky Flats shall be retained by the
United States.
(b) Lindsay Ranch.--The structures that comprise the former
Lindsay Ranch homestead site in the Rock Creek Reserve area
of the buffer zone, as depicted on the map referred to in
section 3(8), shall be permanently preserved and maintained
in accordance with the National Historic Preservation Act (16
U.S.C. 470 et seq.).
(c) Prohibition on Annexation.--The Secretary of the
Interior shall not allow the annexation of land within the
refuge by any unit of local government.
(d) Prohibition on Through Roads.--Except as provided in
subsection (e), no public road shall be constructed through
Rocky Flats.
(e) Transportation Right-of-Way.--
(1) In general.--
(A) Availability of land.--On submission of an application
meeting each of the conditions specified in paragraph (2),
the Secretary and the Secretary of the Interior may make
available land along the eastern boundary of Rocky Flats for
the sole purpose of transportation improvements along Indiana
Street.
(B) Boundaries.--Land made available under this paragraph
may not extend more than 150 feet from the west edge of the
Indiana Street right-of-way, as that right-of-way exists as
of the date of enactment of this Act.
(C) Easement or sale.--Land may be made available under
this paragraph by easement or sale to 1 or more appropriate
entities.
(D) Compliance with applicable law.--Any action under this
paragraph shall be taken in compliance with applicable law.
(2) Conditions.--An application for land under this
subsection may be submitted by any county, city, or other
political subdivision of the State of Colorado and shall
include documentation demonstrating that--
(A) the transportation project is compatible with the
management of Rocky Flats as a wildlife refuge; and
(B) the transportation project is included in the Regional
Transportation Plan of the Metropolitan Planning Organization
designated for the Denver metropolitan area under section
5303 of title 49, United States Code.

SEC. 5. TRANSFER OF MANAGEMENT RESPONSIBILITIES AND
JURISDICTION OVER ROCKY FLATS.

(a) In General.--
(1) Memorandum of understanding.--
(A) In general.--Not later than 1 year after the date of
enactment of this Act, the Secretary and the Secretary of the
Interior shall publish in the Federal Register a draft
memorandum of understanding under which the Secretary shall
transfer to the Secretary of the Interior administrative
jurisdiction over Rocky Flats.
(B) Required elements.--
(i) In general.--Subject to clause (ii), the memorandum of
understanding shall--

(I) provide for the timing of the transfer;
(II) provide for the division of responsibilities between
the Secretary and the Secretary of the Interior for the
period ending on the date of the transfer; and
(III) provide an appropriate allocation of costs and
personnel to the Secretary of the Interior.

(ii) No reduction in funds.--The memorandum of
understanding shall not result in any reduction in funds
available to the Secretary for cleanup and closure of Rocky
Flats.
(C) Deadline.--Not later than 18 months after the date of
enactment of this Act, the Secretary and Secretary of the
Interior shall finalize and implement the memorandum of
understanding.
(2) Exclusions.--The transfer under paragraph (1) shall not
include the transfer of any property or facility over which
the Secretary retains jurisdiction, authority, and control
under subsection (b)(1).
(3) Condition.--The transfer under paragraph (1) shall
occur not later than 10 business days after the signing by
the Regional Administrator for Region VIII of the
Environmental Protection Agency of the Final On-site Record
of Decision for Rocky Flats.
(4) Cost; improvements.--The transfer--
(A) shall be completed without cost to the Secretary of the
Interior; and
(B) may include such buildings or other improvements as the
Secretary of the Interior may request in writing for refuge
management purposes.
(b) Property and Facilities Excluded From Transfers.--
(1) In general.--The Secretary shall retain jurisdiction,
authority, and control over all real property and facilities
at Rocky Flats that are to be used for--
(A) any necessary and appropriate long-term operation and
maintenance facility to intercept, treat, or control a
hazardous substance, radionuclide, or other pollutant or
contaminant; and
(B) any other purpose relating to a response action or any
other action that is required to be carried out at Rocky
Flats.

[[Page S8955]]

(2) Consultation.--
(A) With environmental protection agency and state.--The
Secretary shall consult with the Administrator of the
Environmental Protection Agency and the State of Colorado on
the identification and management of all property to be
retained under this subsection to ensure the continuing
effectiveness of response actions.
(B) With secretary of the interior.--
(i) In general.--The Secretary shall consult with the
Secretary of the Interior on the management of the retained
property to minimize any conflict between the management of
property transferred to the Secretary of the Interior and
property retained by the Secretary for response actions.
(ii) Conflict.--In the case of any such conflict,
implementation and maintenance of the response action shall
take priority.
(3) Access.--As a condition of the transfer under
subsection (a), the Secretary shall be provided such
easements and access as are reasonably required to carry out
any obligation or address any liability.
(c) Administration.--
(1) In general.--On completion of the transfer under
subsection (a), the Secretary of the Interior shall
administer Rocky Flats in accordance with this Act subject
to--
(A) any response action or institutional control at Rocky
Flats carried out by or under the authority of the Secretary
under the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.); and
(B) any other action required under any other Federal or
State law to be carried out by or under the authority of the
Secretary.
(2) Conflict.--In the case of any conflict between the
management of Rocky Flats by the Secretary of the Interior
and the conduct of any response action or other action
described in subparagraph (A) or (B) of paragraph (1), the
response action or other action shall take priority.
(3) Continuing actions.--Except as provided in paragraph
(1), nothing in this subsection affects any response action
or other action initiated at Rocky Flats on or before the
date of the transfer under subsection (a).
(4) Liability.--The Secretary shall retain any obligation
or other liability for land transferred under subsection (a)
under--
(A) the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. 9601 et seq.); or
(B) any other applicable law.

SEC. 6. CONTINUATION OF ENVIRONMENTAL CLEANUP AND CLOSURE.

(a) Ongoing Cleanup and Closure.--
(1) In general.--The Secretary shall carry out to
completion cleanup and closure at Rocky Flats.
(2) No restriction on use of new technologies.--Nothing in
this Act, and no action taken under this Act, restricts the
Secretary from using at Rocky Flats any new technology that
may become available for remediation of contamination.
(b) Rules of Construction.--
(1) No relief from obligations under other law.--
(A) In general.--Nothing in this Act, and no action taken
under this Act, relieves the Secretary, the Administrator of
the Environmental Protection Agency, or any other person from
any obligation or other liability with respect to Rocky Flats
under the RFCA or any applicable Federal or State law.
(B) No effect on rfca.--Nothing in this Act impairs or
alters any provision of the RFCA.
(2) Required cleanup levels.--
(A) In general.--Except as provided in subparagraph (B),
nothing in this Act affects the level of cleanup and closure
at Rocky Flats required under the RFCA or any Federal or
State law.
(B) No effect from establishment as national wildlife
refuge.--
(i) In general.--The requirements of this Act for
establishment and management of Rocky Flats as a national
wildlife refuge shall not affect the level of cleanup and
closure.
(ii) Cleanup levels.--The Secretary is required to conduct
cleanup and closure of Rocky Flats to the levels hereafter
established for soil, water, and other media, following a
thorough review, by the parties to the RFCA and the public,
of the appropriateness of the interim levels in the RFCA.
(3) No effect on obligations for measures to control
contamination.--Nothing in this Act, and no action taken
under this Act, affects any long-term obligation of the
United States relating to funding, construction, monitoring,
or operation and maintenance of--
(A) any necessary intercept or treatment facility; or
(B) any other measure to control contamination.
(c) Payment of Response Action Costs.--Nothing in this Act
affects the obligation of a Federal department or agency that
had or has operations at Rocky Flats resulting in the release
or threatened release of a hazardous substance or pollutant
or contaminant to pay the costs of response actions carried
out to abate the release of, or clean up, the hazardous
substance or pollutant or contaminant.
(d) Consultation.--In carrying out a response action at
Rocky Flats, the Secretary shall consult with the Secretary
of the Interior to ensure that the response action is carried
out in a manner that, to the maximum extent practicable,
furthers the purposes of the refuge.

SEC. 7. ROCKY FLATS NATIONAL WILDLIFE REFUGE.

(a) Establishment.--Not later than 30 days after the
transfer of jurisdiction under section 5(a)(3), the Secretary
of the Interior shall establish at Rocky Flats a national
wildlife refuge to be known as the ``Rocky Flats National
Wildlife Refuge''.
(b) Composition.--The refuge shall consist of the real
property subject to the transfer of jurisdiction under
section 5(a)(1).
(c) Notice.--The Secretary of the Interior shall publish in
the Federal Register a notice of the establishment of the
refuge.
(d) Administration and Purposes.--
(1) In general.--The Secretary of the Interior shall manage
the refuge in accordance with applicable law, including this
Act, the National Wildlife Refuge System Administration Act
of 1966 (16 U.S.C. 668dd et seq.), and the purposes specified
in that Act.
(2) Specific management purposes.--To the extent consistent
with applicable law, the refuge shall be managed for the
purposes of--
(A) restoring and preserving native ecosystems;
(B) providing habitat for, and population management of,
native plants and migratory and resident wildlife;
(C) conserving threatened and endangered species (including
species that are candidates for listing under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.));
(D) providing opportunities for compatible environmental
scientific research; and
(E) providing the public with opportunities for compatible
outdoor recreational and educational activities.

SEC. 8. PUBLIC INVOLVEMENT.

(a) Establishment of Process.--Not later than 90 days after
the date of enactment of this Act, in developing plans for
the management of fish and wildlife and public use of the
refuge, the Secretary of the Interior, in consultation with
the Secretary, the members of the Coalition, the Governor of
the State of Colorado, and the Rocky Flats Trustees, shall
establish a process for involvement of the public and local
communities in accomplishing the purposes and objectives of
this section.
(b) Other Participants.--In addition to the entities
specified in subsection (a), the public involvement process
shall include the opportunity for direct involvement of
entities not members of the Coalition as of the date of
enactment of this Act, including the Rocky Flats Citizens'
Advisory Board and the cities of Thornton, Northglenn,
Golden, Louisville, and Lafayette, Colorado.
(c) Dissolution of Coalition.--If the Coalition dissolves,
or if any Coalition member elects to leave the Coalition
during the public involvement process under this section--
(1) the public involvement process under this section shall
continue; and
(2) an opportunity shall be provided to each entity that is
a member of the Coalition as of September 1, 2000, for direct
involvement in the public involvement process.
(d) Purposes.--The public involvement process under this
section shall provide input and make recommendations to the
Secretary and the Secretary of the Interior on the following:
(1) The long-term management of the refuge consistent with
the purposes of the refuge described in section 7(d) and in
the National Wildlife Refuge System Administration Act of
1966 (16 U.S.C. 668dd et seq.).
(2) The identification of any land described in section
4(e) that could be made available for transportation
purposes.
(3) The potential for leasing any land in Rocky Flats for
the National Renewable Energy Laboratory to carry out
projects relating to the National Wind Technology Center.
(4) The characteristics and configuration of any perimeter
fencing that may be appropriate or compatible for cleanup and
closure, refuge, or other purposes.
(5) The feasibility of locating, and the potential location
for, a visitor and education center at the refuge.
(6) The establishment of a Rocky Flats museum described in
section 10.
(7) Any other issues relating to Rocky Flats.
(e) Report.--Not later than 2 years after the date of
enactment of this Act, the Secretary of the Interior shall
submit to the Committee on Armed Services of the Senate and
the appropriate committee of the House of Representatives a
report that--
(1) outlines the conclusions reached through the public
involvement process; and
(2) to the extent that any input or recommendation from the
public involvement process is not accepted, clearly states
the reasons why the input or recommendation is not accepted.

SEC. 9. PROPERTY RIGHTS.

(a) In General.--Except as provided in subsection (c),
nothing in this Act limits any valid, existing property right
at Rocky Flats that is owned by any person or entity,
including, but not limited to--
(1) any mineral right;
(2) any water right or related easement; and
(3) any facility or right-of-way for a utility.
(b) Access.--Except as provided in subsection (c), nothing
in this Act affects any right of an owner of a property right
described in subsection (a) to access the owner's property.
(c) Reasonable Conditions.--

[[Page S8956]]

(1) In general.--The Secretary or the Secretary of the
Interior may impose such reasonable conditions on access to
property rights described in subsection (a) as are
appropriate for the cleanup and closure of Rocky Flats and
for the management of the refuge.
(2) No effect on applicable law.--Nothing in this Act
affects any other applicable Federal, State, or local law
(including any regulation) relating to the use, development,
and management of property rights described in subsection
(a).
(3) No effect on access rights.--Nothing in this subsection
precludes the exercise of any access right, in existence on
the date of enactment of this Act, that is necessary to
perfect or maintain a water right in existence on that date.
(d) Purchase of Mineral Rights.--
(1) In general.--The Secretary shall seek to acquire any
and all mineral rights at Rocky Flats through donation or
through purchase or exchange from willing sellers for fair
market value.
(2) Funding.--The Secretary and the Secretary of the
Interior--
(A) may use for the purchase of mineral rights under
paragraph (1) funds specifically provided by Congress; but
(B) shall not use for such purchase funds appropriated by
Congress for the cleanup and closure of Rocky Flats.
(e) Utility Extension.--
(1) In general.--The Secretary or the Secretary of the
Interior may allow not more than 1 extension from an existing
utility right-of-way on Rocky Flats, if necessary.
(2) Conditions.--An extension under paragraph (1) shall be
subject to the conditions specified in subsection (c).

SEC. 10. ROCKY FLATS MUSEUM.

(a) Museum.--In order to commemorate the contribution that
Rocky Flats and its worker force provided to the winning of
the Cold War and the impact that the contribution has had on
the nearby communities and the State of Colorado, the
Secretary may establish a Rocky Flats Museum.
(b) Location.--The Rocky Flats Museum shall be located in
the city of Arvada, Colorado, unless, after consultation
under subsection (c), the Secretary determines otherwise.
(c) Consultation.--The Secretary shall consult with the
city of Arvada, other local communities, and the Colorado
State Historical Society on--
(1) the development of the museum;
(2) the siting of the museum; and
(3) any other issues relating to the development and
construction of the museum.
(d) Report.--Not later than 3 years after the date of
enactment of this Act, the Secretary, in coordination with
the city of Arvada, shall submit to the Committee on Armed
Services of the Senate and the appropriate committee of the
House of Representatives a report on the costs associated
with the construction of the museum and any other issues
relating to the development and construction of the museum.

SEC. 11. REPORT ON FUNDING.

At the time of submission of the first budget of the United
States Government submitted by the President under section
1105 of title 31, United States Code, after the date of
enactment of this Act, and annually thereafter, the Secretary
and the Secretary of the Interior shall report to the
Committee on Armed Services and the Committee on
Appropriations of the Senate and the appropriate committees
of the House of Representatives on--
(1) the costs incurred in implementing this Act during the
preceding fiscal year; and
(2) the funds required to implement this Act during the
current and subsequent fiscal years.
______

Mr. GRASSLEY (for himself, Mr. Grams, Mr. Ashcroft, and Mr.
Brownback):
S. 3091. A bill to implement the recommendations of the General
Accounting Office on improving the administration of the Packers and
Stockyards Act, 1921 by the Department of Agriculture, Nutrition, and
Forestry.

packers and stockyards enforcement improvement act of 2000

Mr. GRASSLEY. Mr. President, today I'm introducing a bill to
implement recommendations by the General Accounting Office contained in
a report--issued just today--which assesses the efforts of the
Department of Agriculture's Grain Inspection, Packers and Stockyards
Administration (GIPSA) in implementing the Packers and Stockyards Act.
Done correctly, GIPSA is supposed to use the Packers and Stockyards Act
as a tool to prevent farmers from being subject to unfair and anti-
competitive practices.
In August 1999, I asked the GAO to investigate whether GIPSA was
taking full advantage of its authority to investigate competition
concerns in the cattle and hog industries. In a nutshell, GIPSA has
failed in its mission to protect family farmers. GIPSA has failed to
ensure fairness and competitiveness in the livestock industry. The
report recommends that significant changes need to be made to GIPSA's
investigation and case management, operations, and development
processes, as well as its staff resources and capabilities, in order
for it to effectively perform its Packers and Stockyards duties.
The news of this administration's failure of duty couldn't come at a
worse time. Family farmers and independent producers are experiencing
some of the lowest prices for their commodities in years. In the
meantime, agribusiness has become so concentrated that family farmers
are concerned they can't get a fair price for their products. They are
seeing fewer options for marketing their commodities and they are
having to sustain increased input costs. The extent of concentration in
agribusiness has raised serious concerns about the ability of companies
to engage in unfair practices. Most of these complaints involve the
livestock industry.
The Justice Department and Federal Trade Commission are responsible
for protecting the marketplace from mergers, acquisitions and practices
that adversely affect competition. But GIPSA, under the Packers and
Stockyards Act, has substantial, explicit authority to halt anti-
competitive activity in the livestock industry by taking investigative,
enforcement and regulatory action. But GIPSA has done none of this. All
we hear are calls for more legislation or more money. It's clear that
this is just another example of this administration passing the buck to
Congress by calling for new legislative authority, when they are the
ones that have failed to exercise the broad authority they already
have. If USDA won't use their existing powers, what makes us in
Congress think they'd use new powers?
As I've stated, I asked for this GAO investigation because I
suspected that USDA had not been doing enough to ensure that small and
mid-sized producers were not being harmed by possible anti-competitive
activity in the livestock industry. So, to tell you the truth, I wasn't
surprised when GIPSA got a failing grade. But I can tell you that I am
outraged by USDA and this administration's lack of priorities in doing
their job and their failure to enforce the laws on the books. Let me
make this clear, this USDA is not a friend to the family farmer. And
the Clinton-Gore administration is one to talk about us here in
Congress doing nothing about concerns in agriculture. Maybe I need to
define what ``nothing'' means. I think that this GAO Report defines
``nothing'' quite well.
Let me summarize the findings of the GAO report. The report confirms
that GIPSA's authority to halt anti-competitive practices and protect
buyers and sellers of livestock is quite broad and, in fact, go further
than the Sherman Act in addressing anti-competitive practices.
The report also found that two major factors have impacted GIPSA's
capability to perform their competition duties. Investigation and case
methods, practices and processes are inadequate or non-existent at
GIPSA.
For example, the GAO found that GIPSA's investigations are planned
and conducted primarily by economists and technical specialists without
the formal involvement of USDA's Office of General Counsel attorneys
from the beginning of an investigation. Attorneys only get involved
when a case report is completed. On the other hand, DOJ and FTC have
teams of attorneys and economists that perform investigations of anti-
competitive practices, with the attorneys taking the lead from the
outset to ensure that a legal theory is focused on the potential
violation of law. The GAO also found that GIPSA does not have
investigative methods designed for competition cases, nor does it have
investigation guidance for anti-competitive practice methods and
processes. In contrast, DOJ and FTC have detailed processes and
practices specifically designed for these kinds of cases.
GIPSA is also inadequately staffed. The GAO indicated that although
the agency has hired additional economists, they are relatively
inexperienced. More importantly, even though I understand there are
around 300 lawyers in the General Counsel's Office, the report found
that the number of attorneys working on GIPSA matters has actually
decreased from 8 to 5 since GIPSA reorganized in 1998. To add insult to
injury, they are not all assigned full-time to GIPSA's financial, trade
practice, and competition cases; some have other USDA responsibilities
as

[[Page S8957]]

well. Consequently, very little attorney time is actually dedicated to
competition cases, thanks to the low priority this administration has
placed on the problem.
The GAO Report's recommendations are straightforward. It recommends
that GIPSA come up with investigation and case methods, practices and
processes for competition-related allegations, in consultation with the
DOJ and FTC.
It recommends that GIPSA integrate the attorney and economist working
relationship, with attorneys at the lead from the beginning of the
investigation. It also suggests that USDA might want to report to
Congress on the state of the cattle and hog market, as well as on
potential violations of the Packers and Stockyards Act. In effect, the
GAO provides a blueprint for how GIPSA should be run, and the policies
and procedures it should have in place to protect family farmers.
So, the GAO is telling us that USDA and GIPSA just haven't gotten
their act together to function like a competent agency. And they are
recommending that USDA and GIPSA do something that makes common sense--
develop a successful plan, train your people, get guidance from the
experts, write effective processes and procedures designed for
competition cases, hire antitrust lawyers.
Let me give you some more information. Way back in October 1991, the
GAO issued another report which determined that, despite increased
concentration in the livestock industry, GIPSA's monitoring and
analysis were not up to speed to identify anti-competitive practices.
Instead, GIPSA still placed its primary emphasis on ensuring prompt and
accurate payment to livestock sellers. In 1997, USDA's own Office of
Inspector General found that GIPSA needed to make extensive
improvements to its Packers and Stockyards Program to live up to its
competition responsibilities. The 1997 OIG report found that GIPSA did
not have the capability to perform effective anti-competitive practice
investigations because it was not properly organized, operated or
staffed. It recommended that GIPSA make extensive organizational and
resource improvements within the department, as well as employ an
approach similar to that used by DOJ and FTC, by integrating attorneys
and economists from the beginning of the investigative process. Sound
familiar?
Because of the large number of complaints about competition in the
livestock industry, one would have thought that USDA and the
administration would have put addressing competition concerns in every
way possible and ensuring the effective functioning of GIPSA at the top
of their list. USDA and the administration had clear warnings in the
1991 GAO Report and the 1997 OIG Report that there were significant
problems, yet they've been ineffective in addressing them. In fact,
USDA agreed with the reports and acknowledged that they needed to
reevaluate guidelines and regulations, as well as make appropriate
organizational, procedure and resource changes. So why wasn't this
done? Why weren't these concerns addressed in an effective manner? Why
still all this mismanagement? Why still no guidance, policies or
proceures?
And now this GAO report raises even more troubling questions. What
are USDA's real priorities? Are ag concentration and anti-competitive
activity of any concern to the Clinton/Gore administration? How many
violations of the Packers and Stockyards Act have slipped through the
cracks because of GIPSA's failure to execute its statutory
responsibility? My hearing on September 25, next week in my Judiciary
Subcommittee, will explore these and other questions.
I can already see the finger-pointing to come from USDA. They are
going to say they need more time. Well, they've known since 1991 that
they had problems, isn't that time enough to fix them? They are going
to say that we haven't given them enough money. But the fact is that
Congress has increased GIPSA and USDA OGC funding almost every year
since 1991. If USDA saw that they needed more antitrust lawyers for
their Packers and Stockyards competition cases, they should have
dedicated more of their funds to hiring them. The problem is this
administration's priorities. The problem is this administration's
inability to take responsibility.
In any event, it's clear that we can't count on this administration's
Agriculture Department to reorganize and fix the problems identified in
this GAO report. USDA promised to respond to similar problems
identified in the 1991 GAO Report and 1997 OIG report, yet did nothing
of any real effect to change the situation. Promises made to farmers
and promises broken. It's clear to me that recent movements on the part
of USDA to address some of these issues are just another way to deflect
criticisms of their failure to act. And my concerns continue to grow.
Legislation is necessary to force USDA and GIPSA to do their job. It's
obvious that if we leave it to this administration, it will be the same
old, same old. And the family farmer will continue to wait for
something to happen. USDA has broken too many promises already.
No more. My bill, the Packers and Stockyards Enforcement Improvements
Act, will require USDA to implement GAO's commonsense recommendations,
GAO's blueprint for success. Specifically, my bill will require that,
within one year, USDA implement the recommendations of the GAO report,
in consultation with DOJ and FTC. My bill will require that, during
this one year implementation period, USDA will work with DOJ and FTC to
identify anti-competitive violations and take enforcement action under
the Packers and Stockyards Act. My bill will require USDA to set up a
training program for competition investigations within one year. In
addition, my bill will require USDA to provide Congress with a yearly
report on the state of the cattle and hog industries and identify
activities that represent potential violations under the Packers and
Stockyards Act.
Finally, my bill will require USDA to report back to Congress within
a year on what actions it has taken to comply with this act.
This is a good government bill. It doesn't change the authority of
USDA to address anti-competitive activity in the livestock industry
under the Packers and Stockyards Act. Obviously, there's no need to do
that--USDA already has all the authority they need. Instead, my bill
does something a lot more fundamental--it makes USDA and GIPSA
reorganize, regroup and revamp their Packers and Stockyards program so
they can do their job. Hopefully this will help change USDA's failure
to take its current statutory responsibilities seriously. It seems to
me that this is a recurring theme, the administration not enforcing the
laws on the books and then blaming others for their inadequacies. But
the report is clear. They are the problem. This GAO report is important
because it has identified what the real problem is: USDA and the
administration are asleep at the switch.
I ask unanimous consent to have my bill printed in the Record
following my remarks.
There being no objection, the bill was ordered to be printed in the
Record, as follows:

S. 3091

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the ``Packers and Stockyards
Enforcement Improvement Act of 2000''.

SEC. 2. ENFORCEMENT.

(a) Implementation of the General Accounting Office
Report.--Not later than 1 year after September 21, 2000, the
Secretary of Agriculture shall implement the recommendations
of the report issued by the General Accounting Office
entitled ``Packers and Stockyards Programs: Actions Needed to
Improve Investigations of Competitive Practices'', GAO/RCED-
00-242, dated September 21, 2000.
(b) Consultation.--During the implementation period
referred to in subsection (a), and for such an additional
time period as needed to assure effective implementation, the
Secretary of Agriculture shall consult and work with the
Department of Justice and the Federal Trade Commission in
order to--
(1) implement the investigation management, operations, and
case methods development processes recommendations in the
report; and
(2) effectively identify and investigate complaints of
unfair and anti-competitive practices, and enforce the
Packers and Stockyards Act, 1921.
(c) Training.--Not later than September 21, 2001, the
Secretary of Agriculture shall develop and implement a
training program for staff of the Department of Agriculture

[[Page S8958]]

engaged in investigations of complaints of unfair and anti-
competitive activity, drawing on existing training materials
and programs available at the Department of Justice and the
Federal Trade Commission, to the extent practicable.

SEC. 3. REPORT.

Title IV of the Packers and Stockyards Act, 1921 is amended
by--
(1) redesignating section 415 (7 U.S.C. 229) as section
416; and
(2) inserting after section 414 the following:
``Sec. 415. Not later than March 1 of each year, the
Secretary shall submit to Congress and make publicly
available a report that--
``(1) assesses the general economic state of the cattle and
hog industries; and
``(2) identifies business practices or market operations or
activities in those industries that represent possible
violations of this Act or are inconsistent with the goals of
this Act.''.

SEC. 4. IMPLEMENTATION REPORT.

The Secretary of Agriculture shall report to Congress on
October 1, 2001, on the actions taken to comply with section
2.
______

By Mrs. BOXER:
S. 3093. A bill to require the Federal Energy Regulatory
Commission to roll back the wholesale price of electric
energy sold in the Western System Coordinating Council, and
for other purposes; to the Committee on Energy and Natural
Resources.

the halt electricity price-gouging in san diego act

Mrs. BOXER. Mr. President, today I am introducing a very important
bill, the Halt Electricity Price-gouging in San Diego Act. This bill, a
companion to the bill introduced in the House on September 7, 2000 by
Congressman Filner, sends a loud and clear signal to electric companies
in California that the federal government will not tolerate price
gouging of our people.
California is currently experiencing an energy crisis, particularly
in San Diego. Energy supplies are barely adequate on any given day to
meet demand. Wholesale electricity prices have soared, causing San
Diego Gas and Electric to pass along increased costs to consumers and
resulting in bills that have increased as much as 300 percent in the
San Diego area.
Small business owners and people on small or fixed incomes,
especially the elderly, are particularly suffering. Other utilities in
the state have similar supply and cost problems, causing losses in the
hundreds of millions of dollars.
This bill would direct the Federal Energy Regulatory Commission
(FERC) to impose price caps on wholesale electricity prices. The bill
would also require power suppliers to refund fees charged above the
FERC-imposed price cap since June 1, 2000. The precise total of refunds
due would be determined by the Federal Energy Regulatory Commission.
I urge FERC to act swiftly and bring relief to those who have been
hit by this terrible situation.
The fight for fair utility rates is going to be difficult and may
require a number of other solutions. I will continue to work with
Congressman Filner and others to ensure that we end the crisis and
prevent similar incidents in California and elsewhere in the United
States.

____________________