[Congressional Record Volume 146, Number 141 (Tuesday, October 31, 2000)]
[Senate]
[Pages S11395-S11398]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




           EMBASSY SECURITY AND BANKRUPTCY CONFERENCE REPORT

  Mr. FEINGOLD. Mr. President, let me begin by agreeing with the 
Senator from Minnesota. The measure before us is a work of injustice. 
It works injustice on the Senate's procedures. And if it passes, it 
will work injustice on millions of Americans struggling to cobble 
together a fresh start after financial hardship. And the measure is 
also a clear example of the power of money in the legislative process. 
That's an injustice too, because it puts the needs of the special 
interests ahead of the needs of the American people.
  Let us begin with the procedural injustice. If Senators allow 
business to be done as is being attempted with this conference report, 
then we might as well all just go home. Because conference committees 
will be doing our jobs.
  Unlike a normal conference report, this conference report includes 
absolutely no legislation on the matters that the Senate sent to the 
conference committee--which, for the information of my colleagues and 
the people watching, was a bill on embassy security and authorizations 
for the Department of State, a terribly serious matter. That was not 
what came back--nothing like that. Instead this conference report 
brings back to the Senate a complete bill entirely irrelevant to the 
bill sent to conference. What it brings back is a bankruptcy bill.
  That is not the job of a conference committee. It is not the job of a 
conference committee to search out the legislative vineyards for 
whatever issues appear ripe for decision. It is not the job of a 
conference committee to write legislation on matters not committed to 
it. The conference committee is doing our jobs.
  The Constitution confers on the Senate and the House of 
Representatives certain enumerated powers. Article I, Section 1, of the 
Constitution provides: ``All legislative powers herein granted shall be 
vested in a Congress of the United States, which shall consist of a 
Senate and House of Representatives.''
  If the Senate so chooses, it may delegate some of its powers to a 
committee of its Members. But if those Members so delegated recognize 
no limits on their authority, then they have usurped nothing less than 
all the powers that the Constitution vests in the Senate itself. The 
conference committee is doing our jobs.
  Who needs a full Senate and a full House of Representatives in 
Congress assembled? The conference committee is doing our jobs.
  Who needs amendments between the Houses on the bankruptcy bill? The 
conference committee is doing our jobs.
  Who needs the Senate to disagree to any House amendments or insist on 
any Senate amendments on the bankruptcy bill? The conference committee 
is doing our jobs.
  Who needs the Senate to request a conference or agree to a conference 
on the bankruptcy bill? The conference committee is doing our jobs.
  Who needs the Senate to consider any motions to instruct the 
conferees

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on the bankruptcy bill? The conference committee is doing our jobs.
  Who needs the Senate even to name conferees on the bankruptcy bill? 
The embassy security conference committee is doing our jobs.
  Who needs for Congress to address the increase in the minimum wage 
that the Senate attached to the last bankruptcy bill? The conference 
committee is doing our jobs.

  Who needs for Congress even to take up, consider, debate, and amend 
this particular bankruptcy bill, which was introduced on October 11? 
The conference committee is doing our jobs.
  Who needs for the Senate to take any action whatsoever to grant this 
conference committee power to act on bankruptcy? The conference 
committee is doing our jobs.
  Who needs all the Senators who are not Members of the conference 
committee? Because the conference committee is doing our jobs.
  Who needs for us to fly and drive in to Washington, sometimes from 
vast distances, from around the country? Because the conference 
committee is doing our jobs.
  Who needs all these Senate offices and all the Senators' staff? A 
handful of offices would do, four to be exact, because the conference 
committee is doing our jobs.
  As one longtime observer of Senate procedures asked, who died and 
made them king? Because the conference committee is doing our jobs.
  The Senate used to have rules to prevent this sort of thing. Rule 28 
of the Standing Rules of the Senate addresses conference committees. 
Two of that rule's six paragraphs deal with the scope of conferences.
  Paragraph 2 of Rule 28 states, in relevant part:

       Conferees shall not insert in their report matter not 
     committed to them by either House. . . . If new matter is 
     inserted in the report . . ., a point of order may be made 
     against the report, and if the point of order is sustained, 
     the report is rejected or shall be recommitted to the 
     committee of conference if the House of Representatives has 
     not already acted thereon.

  And then, paragraph 3 of Rule 28, dealing with complete substitutes, 
states:

       3(a) In any case in which a disagreement to an amendment in 
     the nature of a substitute has been referred to conferees, it 
     shall be in order for the conferees to report a substitute on 
     the same subject matter; but they may not include in the 
     report matter not committed to them by either House. They 
     may, however, include in their report in any such case matter 
     which is a germane modification of subjects in disagreement.
       (b) In any case in which the conferees violate subparagraph 
     (a), the conference report shall be subject to a point of 
     order.

  Then, Mr. President, on October 3, 1996, in what seemed like almost a 
whim, the Senate cast aside this century-old Standing Rule, which I 
just read in part. To secure last-minute, end-of-session passage of a 
version of the Federal Aviation Authorization Act that included an 
extraneous provision of special interest to the Federal Express 
Corporation, the Senate voted 56 to 39 to overturn the ruling of the 
Chair and nullify the rule.
  At that time, Senator Specter called it: ``a very, very serious 
perversion of Senate procedures.''
  Mr. President, conference reports are privileged. Consequently, 
Senators cannot debate a motion to proceed to a conference report. 
Senators cannot employ a filibuster to block its consideration.
  Conference reports are not amendable. If, as is often the case, and 
is the case here, the House has already acted on a conference report, 
motions to recommit the conference report to the conference committee 
are not in order in the Senate.
  Conference reports present the Senate with a take-it-or-leave-it 
proposition.
  As I am sure my colleagues have observed, the Senate works at two 
speeds: a deliberative speed and a get-down-to-business speed. The 
regular order under the Standing Rules of the Senate reflects the 
deliberative speed. We see the getting-down-to-business speed in 
unanimous consent agreements, the budget process, and conference 
reports.
  When Senators take up these get-down-to-business matters, they enter 
into a kind of social contract. Senators agree to give up their normal 
rights under the rules to debate and amend, which are very important in 
this institution. In exchange, through subject-matter limitations, 
these procedures grant Senators some notice--and Senators have a right 
to some notice--of what they can expect.
  As Senator Kennedy said in 1996:

       ``We send a bill to conference . . . knowing that the 
     conference committee's work is likely to become law.

  And until October 1996, the precedents governing conference 
committees prohibited them from bringing back any matter ``entirely 
irrelevant'' to what the Senate or House passed.
  In October 1996, the Senate breached that compact. Now the process 
can force Senators to live with restrictions on their rights to debate 
and amend conference reports without having even the slightest idea of 
the reports' subject matter in advance. And the last-minute additions 
will probably become law.
  Mr. President, I think most would agree, this change is profoundly 
undemocratic. Conference committees are populated disproportionately by 
senior Members and Members favored by the leadership. This conference, 
as a case in point, was signed off on for the Senate by just four men 
who have been here an average of 22 years. Conference committees are 
far less representative of the people than the Senate as a whole.
  In conference, the majority need not work with the minority party at 
all. Under this majority, the majority often has not. On this bill, the 
majority certainly has not.
  Conference committees usually work in secret. Senate rules require no 
open meetings. House practice has generally required one photo 
opportunity. Thereafter, in the eyes of the Senate's rules, Senators' 
signatures on the conference report constitute their votes, and nothing 
further need be done in public.
  Mr. President, we know that conference committees have long been the 
graveyards of amendments. Senator Russell Long used to quip, ``Why 
fight an amendment on the floor if you can drop it in conference?'' And 
that appears to be what has happened to the minimum wage increase that 
the Senate attached to the last bankruptcy bill, and to many other 
amendments, including some that I proposed, that made the bill somewhat 
more palatable to the Senate.

  And today we see a conference committee becoming the delivery room 
for a brand new piece of legislation. Like Athena from Zeus's head, a 
new law is springing whole from the conference committee without floor 
consideration, debate, or amendment.
  Today, the chickens are coming home to roost. This majority, in its 
continuing crusade to snuff out any opportunity for the minority to 
debate and amend, now carries this monstrous conference report 
precedent to its logical extreme.
  As I said in my statement on the Military Construction Appropriations 
bill on May 18, this majority has time after time flouted or changed 
the Standing Rules of the Senate to ratchet down the rights of the 
minority. This majority has thus shown a disturbing willingness to cast 
aside long-held precedents to serve immediate policy ends. Minority 
party rights have suffered as a result.
  Mr. President, four Senators do not constitute the Senate. Yet absent 
Senate rules to restrain them, small groups of Senators meeting 
secretly in conference committees can arrogate much--if not most--of 
the Senate's power.
  If the Senate allows the kind of legislation-writing by conference 
committee that has taken place here, then Senators will have done 
nothing less than surrender their jobs. They will have surrendered 
their authority and responsibilities to the very few who happen to be 
in whatever conference committee is meeting on any given day.
  If we allow this practice, we will have perpetrated, in my view, and 
I don't think this is an exaggeration, one of the greatest abdications 
of responsibility in the history of the Senate.
  Let us be clear about why this is happening. When the Senate 
considered the last bankruptcy bill, in November of 1999, Senator 
Kennedy offered an amendment to provide working Americans a much-needed 
increase in the minimum wage. The Republican caucus added 112 pages of 
tax breaks, costing $103 billion, most of which would have gone to the 
top fifth of the income distribution.

[[Page S11397]]

  The Senate could have sent a bill on bankruptcy and the minimum wage 
to conference with the House. But the Constitution requires that 
revenue measures originate in the House. So the plain effect of the 
Republican tax break amendment was to kill the bankruptcy bill and also 
to kill the minimum wage increase.
  And now, the majority seeks to take the remains of that dead 
bankruptcy bill from the graveyard, and stitch it together with 
material from completely different entities that they have found in 
various legislative dissecting rooms. The result is a not a modern 
Prometheus, but a monster, artificial and hideous.
  Now why did the majority engage in this extremely unusual procedure? 
Why seek a conference committee that could be used to work its will in 
secret and bring to the floor a new bill that will be voted on up or 
down with no amendments? Was it to bring forward a bill that is crucial 
to our national security? No. Are the experts in the field clamoring 
for it? No.
  I have talked to bankruptcy judges, bankruptcy trustees, 
practitioners representing both creditors and debtors, law professors 
who specialize in this area, and they all strongly oppose this bill. 
No, the clamor is coming from another quarter. The special interests. 
The interests that want this bill so desperately that they have pushed 
the Majority to use this most unusual, almost unprecedented procedure, 
are the big banks and the credit card companies. They want this reform 
bill because it is skewed toward their interests. This is a bill 
written by and for the credit card companies. That's why all the 
nonpartisan experts on bankruptcy law oppose it.
  So why is it before the Senate today? Mr. President, for over a year 
now, I have been Calling the Bankroll on the Senate floor, to inform my 
colleagues of the campaign contributions, particularly soft money 
contributions, that have been given by interests that would benefit 
from or that oppose legislation that we are considering here in the 
Senate. I have often stated that these contributors set the agenda on 
this floor. And this bill, I'm afraid, is a poster child for the 
influence of money on the legislative process.
  Mr. President, Common Cause put out a report this spring showing the 
stunning amount of money that the credit industry has contributed to 
members of Congress and the political parties in recent years. $7.5 
million in 1999 alone, and $23.4 million in just the last three years. 
One company that has been particularly generous is the MBNA 
Corporation, one of the largest issuers of credit cards in the country. 
In 1998, MBNA gave a $200,000 soft money contribution to the Republican 
Senatorial Committee on the very day that the House passed the 
conference report and sent it to the Senate--not terribly subtle.
  In December 1999, MBNA gave its first large soft money contribution 
ever to the Democratic party--it gave $150,000 to the Democratic 
Senatorial Campaign Committee on December 22, 1999, Mr. President, 
right in the middle of Senate floor consideration of the bankruptcy 
bill. And just a few months ago, on June 30, 2000, Alfred Lerner, 
Chairman and CEO of MBNA--one person, one individual--gave $250,000 in 
soft money to the RNC.
  Mr. President, the following figures are from the Center for 
Responsive Politics, through the first 15 months of the election cycle, 
and in some cases include contributions given later in the election 
cycle. MBNA and its affiliates and executives gave a total of $710,000 
in soft money to the parties. Visa and its executives gave more than 
$268,000 in soft money to the parties during the period. Mastercard 
gave nearly $46,000.
  Finance and credit card companies gave $5.4 million in soft money, 
PAC and individual hard money contributions in the first 15 months of 
the 2000 election cycle. When you add that to the $14.6 million that 
the commercial banks gave, you have, Mr. President, in the midst of all 
these other special interests, one of the most powerful lobbying forces 
in public policy today. And you just might have the answer, in fact you 
do have the answer, to the question, ``why is this bill before the 
Senate today?''
  Some in this body say that the public doesn't care about campaign 
finance reform Mr. President. But I would be willing to bet that if you 
took a public opinion poll and asked the question whether the Senate 
should use extraordinary procedural means to send a campaign finance 
bill that would ban soft money to the President instead of this 
bankruptcy bill, the answer would be an overwhelming ``Yes.''

  After all, the House passed the Shays-Meehan campaign finance reform 
bill last year by an overwhelming margin. And the President would sign 
that bill. All that is needed for campaign finance reform to become law 
is Senate approval, and a majority of Senators supports this bill.
  On the other hand, the President has said repeatedly that he will 
veto this bankruptcy bill. So even if this procedural gambit is 
successful, the bill won't become law.
  But the campaign finance reform bill doesn't have millions of dollars 
in campaign contributions behind it, the same way this bankruptcy bill 
does. So the majority persists, the majority persists in trying to 
force this bill through the Congress in the waning days of the session. 
And it may get its way. But it will not pass this bill into law.
  Mr. President, this bill has millions of dollars of soft money 
contributions behind it. And I'm sure that the donors of those 
contributions believe they are doing the right thing for their 
companies by giving them. But it is very interesting that the leaders 
of major corporations, whose money drives this soft money system, are 
increasingly uncomfortable with it. In a poll of top business 
executives from the 1,000 largest companies in the United States, 
released last Wednesday by the Committee for Economic Development, 79 
percent of the respondents said they believe the campaign finance 
system in this country is broken and needs to be reformed. Sixty 
percent of respondents agree that soft money should be banned.
  So even among those interests that benefit from the soft money 
system, there is strong support for ending it. And the reason for that, 
I believe, is two-fold. First, America's businesses and business people 
are tired of being hit up for money. Year after year, these credit card 
companies have been sending money to the parties and Members of 
Congress hoping for some return, and I think they are tired of it.
  Second, Mr. President, business leaders in this country are coming to 
realize how bad this system looks to the public, how poorly it reflects 
on the legislative and political process. The word is out, for example, 
about this bankruptcy bill. It is not necessary, it goes too far, it's 
unfair and imbalanced. Newspapers have editorialized against it; law 
professors have written op-ed pieces about what's wrong with it; news 
magazines have done exposes of the money behind it. The monied 
interests have succeeded in getting the bill back to the floor, and 
they may get it through the Congress. But if it passes, the bill and 
this body will not have the respect of the American people or the 
press. That's why America's business leaders want reform of the system 
Mr. President, because they know very well it taints all of us, even 
the legislation that they so desperately want the Congress to pass.
  Mr. President, I invite my colleagues to look about this Senate 
Chamber and examine its form. Since January 4, 1859, this Senate has 
done business in this open room, ringed all around by galleries for the 
people. To the west, behind me, are the public visitors' galleries. To 
the north, behind the Presiding Officer, are the wooden desks of the 
press, who report our proceedings to the Nation.

  The Senate began holding sessions open to the public more than 206 
years ago, on February 20, 1794. The Senate opened galleries for the 
public in December 1795. The first radio broadcast from the Senate 
Chamber took place in March of 1929.
  Some Senate hearings appeared on television as early as 1947. Many 
credit ABC's live coverage of the Army-McCarthy hearings in 1953 with 
helping to turn the tide against McCarthyism. Twenty years later, 
another generation learned about democracy as Senator Sam Ervin 
presided over the Watergate hearings in 1973.
  The Senate began radio broadcasts of floor debate in 1978 with the 
debate on the Panama Canal Treaty. The House began televising its floor 
proceedings in 1979. The Senate opened its proceedings to television on 
a trial basis

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in May 1986. And since June 2, 1986, C-Span has carried our debates to 
viewers throughout the Nation.
  We conduct ourselves in the open like this because the Senate best 
serves the Nation when it conducts its business on this Senate floor, 
open to the public view. It is here, on this Senate floor, that each of 
this Nation's several states is represented. And it is here, in their 
debate and votes on amendments and measures, that Senators become 
accountable to the people for what they do.
  The Senate is distinctive for the amount of work that it used to do 
on the Senate floor. In contrast to the House of Representatives, where 
more work is done in committee, the Senate used to do more work on the 
floor.
  The majority today diminishes the Senate floor in favor of the 
backroom conference committee, chosen to address these issues by none 
but themselves, accountable to none but themselves, and open to 
observation by none but themselves.
  The proceedings of the Senate floor are open to view because, as 
Justice Louis Brandeis wrote, ``Sunlight is said to be the best of 
disinfectants.''
  William Jennings Bryan put it this way: ``The government being the 
people's business, it necessarily follows that its operations should be 
at all times open to the public view. Publicity is therefore as 
essential to honest administration as freedom of speech is to 
representative government.''
  It is a legal maxim that ``Truth fears nothing but concealment.'' And 
it follows as night follows day that concealment is the enemy of truth.
  As Justice Brandeis also wrote, ``Secrecy necessarily breeds 
suspicion.'' How will the public gain confidence in the work of the 
Senate if the public cannot see its operations?
  Morley Safer once said that ``All censorship is designed to protect 
the policy from the public.'' If the majority had confidence in its 
policy, would it not do its business in the light of day?
  As Senator Margaret Chase Smith said on this Senate floor on 
September 21, 1961, ``I fear that the American people are ahead of 
their leaders in realism and courage--but behind them in knowledge of 
the facts because the facts have not been given to them.''

  In another context, Senator Robert Taft said on this Senate floor on 
January 5, 1951:

       The result of the general practice of secrecy has been to 
     deprive the Senate and the Congress of the substance of the 
     powers conferred on them by the Constitution.

  And as Senator Kennedy, our distinguished colleague, warned in 1996:

       This . . . is a vote about whether this body is going to be 
     governed by a neutral set of rules that protect the rights of 
     all Members, and by extension, the rights of all Americans. 
     If the rules of the Senate can be twisted and broken and 
     overridden to achieve a momentary legislative goal, we will 
     have diminished the institution itself.

  And that, in the end, is what has happened here. Four Senators who 
had the good fortune to be named to confer on an embassy security bill 
have taken it upon themselves to conduct the business and exercise the 
powers that the Constitution vested in the Senate and the Congress.
  In 1973, the nuclear physicist Edward Teller said, ``Secrecy, once 
accepted, becomes an addiction.'' Mr. President, my fear is that this 
majority will simply continue down this path of snuffing out minority 
rights, creating one legislative Frankenstein after another.
  Senator Kennedy warned in 1996: ``It will make all of us less willing 
to send bills to conference . . . .'' My fear is that we can no longer 
trust any conference committee.
  On this Halloween, I fear for what legislative creatures will walk 
abroad as long as this majority holds power. I, for one, will stand 
guard against them and fight them. In defense of the Senate, I urge my 
colleagues to join me, Senator Wellstone, and others, and oppose this 
conference report.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Thomas). The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, I hope every Democrat or staff member 
heard the words of Senator Feingold. His words will be memorable in 
terms of the record of the Senate. They are prophetic for now and in 
the future. I thank the Senator for the power of his presentation, for 
the power of his words.
  I ask the Senator from Illinois how much time he thinks he will need.
  Mr. DURBIN. Twenty minutes.
  Mr. WELLSTONE. Mr. President, I yield 20 minutes to the Senator from 
Illinois, Mr. Durbin.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, before beginning, I say to the Senator 
from Minnesota, two of our colleagues, Senator Dorgan and Senator 
Harkin, have asked for 10 minutes each, I think Senator Harkin first. I 
do not know if the Senator wants to make that part of his unanimous 
consent request at this time.
  Mr. WELLSTONE. I did tell Senator Harkin I would grant him some time. 
I want to allow some time for myself to speak in opposition to this as 
well. Let me see how things go.
  Mr. DURBIN. I thank the Senator from Minnesota.

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