[Congressional Record Volume 149, Number 159 (Wednesday, November 5, 2003)]
[Senate]
[Pages S14032-S14051]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. CORNYN (for himself and Mr. Lott):
S. 1820. A bill to authorize the States to implement such mechanisms
as are necessary to endure the continuity of Congress in the event that
one-fourth of the members of either the House of Representatives or the
Senate are killed or incapacitated; to the Committee on Rules and
Administration.
Mr. CORNYN. Mr. President, I rise to say a few words about the
continuity of Government. More than 2 years since the terrible events
of September 11, Congress has not taken any steps necessary to protect
the Nation by ensuring continuity of Government operations should there
be another attack and the tragic loss of life or disability on the part
of Members of the United States Congress. The Founders of this country
rightly required a majority of each House to constitute a quorum to do
business, to ensure a nationally representative Congress. But the
Constitution does not provide, I should say, adequate mechanisms to
assure a continuing, functioning Congress if a majority of the Members
are incapacitated or killed by a terrorist attack.
Our current system of providing for the continuity of Government in
the event of a disaster is simply inadequate to meet the realities of a
post-9/11 world. As unthinkable as another attack of that magnitude
might be, we must be ready for the worst.
In fact, we have a duty as the elected Representatives of our
respective States to do everything within our power to provide for a
stable continuance and function of Government, despite all possible
catastrophes. We must not leave our Nation's citizens without
representation, without order, and without defense. We simply owe it to
the American people to ensure that our Government will remain strong
and stable, even in the face of disaster.
It is my conviction that this issue deserves more than just token
attention. It is not something we can or should put off until another
day. It is urgent and it is a critical element of our ongoing fight
against terror.
Today, I have offered a proposal to provide for the continuity of
congressional operations. In coming weeks, I will submit legislation to
address the problems of our current system of Presidential succession
as well.
Earlier this year, the bipartisan Continuity of Government
Commission,
[[Page S14033]]
which was a joint project of the American Enterprise Institute and the
Brookings Institution, issued a report which unanimously recommended a
constitutional amendment:
To allow immediate, temporary appointments to Congress
until special elections could be held to fill vacancies or
until matters of incapacitation can be resolved.
Many Members of Congress strongly agree with the recommendation of
that commission. Some, however, are reluctant to allow for the
appointment rather than the election of Representatives, no matter how
dire the emergency. To protect the American people and ensure a
functioning Congress, we must find a way to bridge the gap on a
temporary basis. I submit that this must be an emergency measure which
would allow for the ongoing operation of Government in a catastrophe
but which would then allow for election in the ordinary course of
events, after events had been stabilized.
I have proposed a constitutional amendment that would allow Congress
to enact laws providing for congressional succession modeled after the
provision of article II, authorizing Congress to enact laws providing
for Presidential succession.
I also propose implementing legislation to authorize each State to
craft their own mechanisms for filling vacancies in their congressional
delegations, which is modeled after the 17th amendment. In other words,
my proposal specifically refrains from choosing sides in this debate,
as far as whether the temporary emergency measure be by appointment or
by election, leaving that decision up to the States, following the
model of the 17th amendment, which of course provides for the election
or selection of Senators in the event of vacancy. Forty-eight States
provide for temporary appointment by the Governor, but two States
provide for special elections. This proposal would give each State the
option to choose which procedures they deem most advisable. The
proposed constitutional amendment would simply defer the question to
Congress, and the implementing legislation would defer the question to
the States.
In an age of terrorism and weapons of mass destruction, I believe it
is high time to address this need that is all that much more apparent
post-9/11 to ensure the continuity of this body and of the entire
Congress. In my capacity as chairman of the Constitution Subcommittee
of the Senate, the Committee of the Judiciary, I plan to convene
hearings next year so we can debate this proposal as soon as possible.
I was not in Washington when the attacks came on September 11. Like
so many other Americans, I was at home in Texas, getting ready to go to
work when I heard the terrible news, and then was rivetted to the
events unfolding on television. But I know for many of my friends and
colleagues who were here on that horrific day, they and we all feel a
tremendous debt of gratitude to the heroes of flight 93. The brave
passengers on that airplane did more than just save the lives of their
fellow citizens. Absent their courageous sacrifice, flight 93 could
have reached its final destination, perhaps this very building, in an
attack that could have eliminated an entire branch of government.
That hallowed ground in Pennsylvania, where flight 93 met its
ultimate rest, marks a promise left behind by those courageous heroes,
a promise carried on to their children, to their loved ones, and,
indeed, to this very Nation.
It is a promise that says that freedom will not end here in the
violent acts of evil men. It persists, it endures, and it will not be
destroyed.
Even as we dedicate ourselves to the ongoing war on terror at home
and abroad, even as we hope and pray that the tragedies of September 11
will never be repeated, we must always remain conscious of our promise
as Senators, to serve the people of our States and of our Nation, and
to support and defend the Constitution of the United States. It is not
every day that you introduce legislation hoping and praying that it
will never be necessary, but this legislation is, in a very real sense,
urgent and necessary.
We must prepare for all contingencies fulfilling our oaths of office
to ensure that this promise--the promise of a free government, a
government of laws, not men--shall not perish from the Earth.
I yield the floor.
______
By Mr. HOLLINGS (for himself, Mr. Inouye, Mr. Rockefeller, Mr.
Kerry, Mr. Breaux, Mr. Dorgan, and Mr. Lautenberg):
S. 1821. A bill to establish a National Space Commission on
activities of the United States related to the future of space; to the
Committee on Commerce, Science, and Transportation.
Mr. HOLLINGS. Mr. President, we have 17 dead astronauts on our
plate--3 from Apollo I, all preventable; 7 from the Challenger, all
preventable; and 7 from the Columbia, all preventable.
What we are trying to do on behalf of myself and these several other
Senators is get to a good healthy debate on the future of space in the
United States and, more particularly, on correcting the safety
features. There is a culture there that prevents safety from being
adhered to, and, more than anything else, NASA is broke.
What is not understood is that at the present time we are going in
all directions. It is like the Navy during World War II: When in
danger, when in doubt, run in circles, scream and shout.
We here are saying we ought to take the orbital space station and
accelerate it. Others on the other side say no, that is should be
abolished. Some say we ought to go to Mars, and others say what we
really need is to hire more expert personnel and bring them in. No one
is going to leave their job and come work for the NASA endeavor at this
particular time until we get a mixture and a program and a policy. That
has to come from the President of the United States.
I introduce the National Space Commission Act to address the range of
issues that the Columbia Accident Investigation Board--CAIB--identified
with the National Aeronautics and Space Administration--NASA--and our
space program in general, following the tragic loss of the Columbia
Space Shuttle and its crew of seven astronauts. This bill authorizes
the creation of a National Space Commission appointed by the President,
to ensure that the safety reforms and recommendations of the Columbia
investigation board are fully implemented by NASA. The commission will
review and make recommendations regarding NASA's return-to-flight
proposals and institutional changes that NASA will need to make to
improve safety in the agency and to improve safety of the space
shuttle, and other actions to assure future safe transportation to
space and to the International Space Station. The commission will also
look at the broader question of how the United States is organized for
the safety of space flight across civilian, military and commercial
sectors. It will begin to build a consensus on a future vision of space
exploration that I hope will rekindle enthusiasm for our space program
and generate the necessary support in the Congress and the
administration for these endeavors.
The Columbia Accident Investigation Board shone a laser-sharp
spotlight upon NASA and its program of human space exploration. Their
pain-staking work to determine the cause of the loss of the Space
Shuttle Columbia provides the context and justification for a new
national agenda for space, a turning point in the history of space.
Though the board stopped short of laying out this new future, its clear
expectation is that the President and Congress should take up where the
board left off.
The U.S. civilian space effort has moved forward for more
than 30 years without a guiding vision, and none seems
imminent . . . Recommending the content of this debate goes
well beyond the Board's mandate, but we believe that the
White House, Congress, and NASA should honor the memory of
Columbia's crew by reflecting on the nation's future in space
and the role of new space transportation capabilities in
enabling whatever space goals the nation chooses to pursue.
Columbia Accident Investigation Board Report, Volume I,
August 2003, p. 210
The legislation I am introducing today, the National Space Commission
Act, is designed to respond to this challenge. It is a complex
challenge, and a complex undertaking, that now lies before the Congress
and the Nation. My bill is not intended to supplant, nor substitute
for, the President's desire to set a new goal in place for the Human
Space Flight Program. But as we have seen in the board's report, merely
setting a far-reaching goal into place for
[[Page S14034]]
NASA and for the Nation is not enough. It will not resolve the many
complex issues raised by Admiral Harold Gehman and the Columbia
Accident Investigation Board. No, this report, and these challenges,
run deeper than a rousing call for future missions to Mars on the
Earth's Moon can resolve. As Admiral Gehman said last week in testimony
before the Senate Commerce, Science, and Transportation Committee:
In the course of (our) study, we became convinced how
difficult it is to get into and out of low Earth orbit. It is
extraordinarily dangerous and very difficult to do . . . We
have to do it more safely than 49 out of 50 times, that's not
good enough . . . No matter what your vision is for human
space flight, whether it's Mars or the L2 or the Moon or
whatever it is, it starts in low Earth orbit . . . We need
some leadership to say, ``Just getting into and out of low
Earth orbit is a goal worthy of itself, without killing a lot
of people.'' And that's hard to argue, because it isn't very
jazzy.
Hearing on NASA's Future, October 29, 2003
Since the inception of the human space flight program, seventeen
astronauts have lost their lives and all were avoidable. In its
investigative work, the Columbia Accident Investigation Board reached
several fundamental conclusions that went beyond the specific technical
and physical causes of the loss of Columbia. The Columbia Board found
basic flaws in how NASA managers behaved, the belief system that lay
behind NASA attitudes and behavior, and NASA's understanding of basic
technical and organizational requirements of safety.
The attitudes and decision-making of Shuttle Program
managers and engineers during the events leading up to this
accident were clearly overconfident and often bureaucratic in
nature.
Columbia Accident Investigation Board Report, Volume I,
August 2003, p. 177
NASA's bureaucratic culture kept important information from
reaching engineers and managers alike. The same NASA whose
engineers showed initiative and a solid working knowledge of
how to get things done fast had a managerial culture with an
allegiance to bureaucracy and cost-efficiency that squelched
the engineers' efforts. When it came to NASA managers' own
actions, however, a different set of rules prevailed. The
Board found that Mission Management Team decision-making
operated outside the rules even as it held its engineers to a
stifling protocol . . .
Each decision, taken by itself, seemed correct, routine,
and indeed, insignificant and unremarkable. Yet, in
retrospect, the cumulative effect was stunning.
Ibid, p. 202-203
Most troubling to the Board was the fact that these NASA tendencies
were not new but existed in full force at the time of both the
Challenger and the Columbia Shuttle accidents.
The (Rogers) Commission found that NASA's safety system had
been silent . . . (denoted by) a lack of problem reporting
requirements, inadequate trend analysis, misrepresentation of
criticality, and lack of involvement in critical discussions
. . .
By the eve of the Columbia accident, institutional
practices that were in effect at the time of the Challenger
accident--such as inadequate concern over deviations from
expected performance, a silent safety program, and schedule
pressure--had returned to NASA.
Ibid, p. 100-101
This ``echo'' between the events eighteen years ago and the present
made the loss of Columbia and its explanation all the more confounding,
because so many who reviewed the agency, its practices, and its culture
had sounded an alarm. The fact that these NASA behaviors and beliefs
were so enduring that they persisted beyond the stunning loss of the
Challenger and her crew was all the more startling to the Columbia
Board. So startling, that the Board found it necessary to offer a blunt
and chilling assessment.
If these persistent, systemic flaws are not resolved, the
scene is set for another accident.
Ibid, p. 195
The Columbia Accident Investigation Board also found that it was not
only NASA that was at fault for the loss of Columbia. Rather, the Board
found that the weaknesses at NASA were just as much a result of the
Nation's neglect of its human space flight program.
Post-Challenger policy decisions made by the White House,
Congress, and NASA leadership resulted in the agency
reproducing many of the failings identified by the Rogers
Commission. Policy constraints affected the Shuttle Program's
organization culture, its structure, and the structure of its
safety system.
Ibid, p. 197
The impact of this neglect extended beyond NASA's organizational
responses, encompassing broad aspects of planning for NASA's future
missions and the development of its technology.
There (has been a) lack, over the past three decades, of
any national mandate providing NASA a compelling mission
requiring human presence in space . . . (and a) lack of
sustained government commitment over the past decade to
improving U.S. access to space by developing a second-
generation space transportation system.
Ibid, p. 209
It is the view of the Board that previous attempts to
develop a replacement vehicle for the aging Shuttle represent
a failure of national leadership.
Ibid, p. 211
The bill I am introducing today establishes a permanent National
Space Commission to oversee the nation's current and future development
and use of space. The commission is established with 12 members,
appointed by the President and confirmed by the Senate. Commission
members will be leaders chosen from industry, academia, and other
professions who have a profound expertise in space flight and safety
and have worn the mantle of responsibility and challenge in the
development and use of space.
The Commission will be independent of NASA and is authorized to hire
a staff to develop the engineering and technical expertise to carry out
its work. It will begin its work looking at some of our most vexing
current problems raised by the Columbia Board's report and provide the
necessary oversight to ensure that the Board's recommendations are
implemented in the following areas: (1) the return-to-flight of the
Space Shuttle and return to assembling the International Space Station,
(2) replacement of the Space Shuttle, and (3) changes to the culture of
NASA. We specify a number of detailed questions, criteria, and concerns
that the Commission should take up in laying out a near-term path
forward for NASA's Human Space Flight program. In making its
recommendations, the Commission is directed to consider the safety and
dignity of human life as its highest priority.
This specific aspect of the bill is a special clause in my mind, one
that is not subject redaction--the United States space flight program
must, above all, be an American approach to the future of space flight
and, as such, must place the dignity and preservation of human life
above all other considerations. This assertion is not meant as an
accusation or indictment of NASA--Admiral Gehman made it clear that the
fault for the loss of Columbia rests with us all, impressed as we all
were with space flight and our accomplishments, and naive about its
risks and challenges.
If Shuttle operations came to be viewed as routine, it was,
at least in part, thanks to the skill and dedication of those
involved in the program. They have made it look easy, though
in fact it never was. The Board urges NASA leadership, the
architects of U.S. space policy, and the American people to
adopt a realistic understanding of the risks and rewards of
venturing into space.
Ibid, p.208
For never again should we have to read in a formal accident report of
the United States space program:
Managers failed to fulfill the implicit contract to do
whatever is possible to ensure the safety of the crew.
Ibid, p.170
Never again.
In each of these assessments of current issues in NASA's Human Space
Flight Program, we intend the commission to provide the President, the
Congress, and NASA its informed judgment and advice, so that we can
expeditiously return the program to a condition of stability and adopt
a NASA culture of safety as soon as possible.
The second aspect of the bill is to set a long-range view of our
Nation's participation in and development of space.
Concurrent with the work on current issues at NASA, but due by late
2005, are two ground-breaking studies. These studies are intended to go
beyond defining a destination for humans in space and to address
broader questions about the goals and methods we use, with a specific
concern for public and private utilization and investment in space.
Though we have learned that the economics of space flight should never
again take precedence over its safety, we also know that, in the past,
its cost has driven us down pathways that have not resulted in success.
In all three (Shuttle replacement) projects--National
Aerospace Plane, X-33,
[[Page S14035]]
and X-34--national leaders had set ambitious goals in
response to NASA's ambitious proposals. The programs relied
on the invention of revolutionary technology, had run into
major technical problems, and had been denied the funds
needed to overcome these problems--assuming they could be
solved. NASA had spent nearly 15 years and several billion
dollars, and yet had made no meaningful progress toward a
Space Shuttle replacement.
Ibid, p. 111
Continued U.S. leadership in space is an important national
objective. That leadership depends on a willingness to pay
the costs of achieving it.
Ibid, p. 211
First, the commission is chartered to provide a sweeping assessment
of the future of space. Included in that assessment is a review of
United States capabilities, goals, and uses for space, including the
state of our Nation's investment in launch capabilities, how space
could benefit State and local governments and regions, and the role of
non-governmental, private organizations in the promotion of our space
endeavors. The review will also take up the difficult issues related to
public and private investment: the role of private institutions in the
development and use of space and the business conditions they must
meet; how Federal Government programs in space science, exploration,
national security, and public safety support or limit the commercial
development of space; and how space contributes to the terrestrial
economy of the United States.
Given the high cost of space, and the even higher costs of space that
the Nation is certain to experience in the near and long-term future,
resolution of these questions of private versus public participation
and promotion of the development of space is a necessary part of the
examination of possible technological and economic futures for the
space sector of the economy.
Second, and most importantly, the National Space Commission Act is
directed to perform a comprehensive assessment and inventorying of the
Nation's programs and practices related to the conduct and safety of
space flight. This study will assess the state of the Nation's
acceptance, approval, and commercial licensing practices as they relate
to the conduct of civil, commercial, and military space flight and
explore how space launch and high-risk space operations are conducted
across each of these sectors. This study is intended to result in a
series of recommendations about the future management of space launch
and high-risk orbital and sub-orbital space operations in order to
achieve the highest level of safety and management of these risks. To
those who question the importance of establishing an authority
independent of NASA to assess these provisions, the Columbia Accident
Investigation board stated the case most convincingly:
(NASA) cultural norms tend to be fairly resilient . . . The
norms bounce back into shape after being stretched or bent.
Beliefs held in common throughout the organization resist
alteration.
Ibid, p. 101
Within NASA, the cultural impediments to safe and effective
Shuttle operations are real and substantial . . . Leadership
will have to rid the system of practices and patterns that
have been validated simply because they have been around so
long . . . These recommendations will be difficult to
initiate, and they will encounter some degree of
institutional resistance.
Ibid. p. 209
NASA's blind spot is it believes it has a strong safety
culture . . . Twice in NASA history, the agency embarked on a
slippery slope that resulted in catastrophe . . . A safety
team must have equal and independent representation so that
managers are not again lulled into complacency by shifting
definitions of risk.
Ibid, p. 203
Since NASA is an independent agency answerable only to the
White House and Congress, the ultimate responsibility for
enforcement of the recommended corrective actions must reside
with those governmental authorities.
Ibid, p. 209
The National Space Commission is established on a permanent basis to
maintain oversight of the implementation of space flight across all
sectors of industry and government and vigilance in the management of
safety in all United States high-risk space operations.
Let me reiterate. Merely announcing a bold new plan to travel to the
Earth's Moon or to Mars is not sufficient. If the loss of the Space
Shuttle Columbia merely results in that proposal, we will have failed
the memory of our brave astronauts who lost their lives aboard both
Challenger and Columbia. And we will have failed our own future.
Unfortunately, our current charge is more difficult. We must challenge
our assumptions, question our decisions and designs, revisit our
approaches, and rethink our Nation's ambitions and goals for space. We
must submit ourselves to the discipline to begin anew. The future of
space and our Nation's reputation that we carry into history rests in
the balance.
I ask unanimous consent that the text of the bill and an article from
the New York Times be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
S. 1821
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 ``National Space Commission
Act''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Since the enactment of the National Aeronautics and
Space Act of 1958, space has become increasingly important
for science, public safety, national defense and intelligence
gathering, commercial telecommunications and other Earth
applications, and the advancement of international relations
tied to the use of space for peaceful purposes.
(2) The recent loss of the Space Shuttle Columbia
highlighted the true condition of space flight: that it is
highly prone to risk, fundamentally challenges the laws of
nature, is extremely unforgiving of lapses in judgment, and
demands the utmost consideration of safety and the dignity of
human life.
(3) The Columbia Accident Investigation Board expressed
extreme misgivings about the management and technical culture
of the National Aeronautics and Space Administration. In
addition to prescribing a specific menu of recommendations,
the Board expressed concerns that the agency may not be able
to achieve its own reform, stating that, ``Based on NASA's
history of ignoring external recommendations, or making
improvements that atrophy with time, the Board has no
confidence that the Space Shuttle can be safely operated for
more than a few years based solely on renewed post-accident
vigilance''.
(4) Today, American astronauts and International Partner
cosmonauts reside in space with limited means of safe rescue
and support. The Nation remains dependent on the Space
Shuttle as the sole means of International Space Station
assembly and human operation in space for the foreseeable
future. And the Nation faces a period of greatly in creased
expense merely to sustain current space operations.
(5) Even if new vehicle technologies were available, it is
a matter of public discussion whether the historic ideals and
prospects for the human exploration and development of space
still guide our national program in space or whether the role
and purpose of human presence in space has become ambiguous
in light of other potential purposes for and uses of space.
(6) Meanwhile, our national program in space suffers from
an aging space workforce and aging, sometimes dilapidated
space facilities and systems, an atrophying of expertise, and
a general lack of renewal of purposes, objectives, and
methods. Commercial markets requiring space launch that are
crucial to establishing the firm economic basis for the
development of space and for the commercial development of
space technology have not emerged but have withered. Although
the use of space for science and national security purposes
is expanding, the economic and commercial development of
space continues to be fledgling. Although the Nation stands
on the doorstep of the permanent human habitation of space, a
mature agenda for safe, economic operation in space necessary
to broaden the Nation's participation and interest in the
peaceful development of space is lacking.
(7) The Nation would benefit by establishing a permanent
National Space Commission to advise the President and
Congress on issues related to the reflight and future use of
the Space Shuttle and on the possibilities for the future
development and use of space, and to recommend measures the
Nation should take to secure the safety of future space
flight.
SEC. 3. NATIONAL SPACE COMMISSION.
(a) Establishment.--There is established a commission to be
known as National Space Commission.
(b) Membership.--
(1) Appointment.--The Commission shall have 12 Members, who
shall be appointed by the President by and with the advice
and consent of the Senate.
(2) Term.--Members of the Commission shall serve for a term
of 5 years and shall be eligible for reappointment, except
that the members initially appointed shall be appointed for
terms of 3 years each.
(3) Qualifications.--Members shall be selected from among
individuals--
(A) with national reputations in the conduct of space
flight and the development of space systems and technology;
(B) who are representative of the many views about the
future of space and the economic and technical prospects for
its use and development; and
(C) who are or have been employed in space-related
activities, including--
[[Page S14036]]
(i) leaders of aerospace companies and other industries
involved in the development and use of space;
(ii) professionals who have performed in significant
capacities in the management of space programs or ventures;
and
(iii) distinguished members of academia.
(4) Vacancies.--Any vacancy occurring other than by the
expiration of a term shall be filled in a manner that best
replaces the qualifications of the person vacating the
position, unless a person with different qualifications is to
be nominated and appointed for the purpose of changing or re-
directing the activities or objectives of the Commission.
(5) Status as special government employees.--Members of the
Commission are deemed to be special Government employees (as
defined in section 202(a) of title 18, United States Code)
without regard to the number of days of service during any
365-day period while engaged in the business of the
Commission.
(6) Travel expenses.--Members of the Commission shall be
allowed travel expenses, including per diem in lieu of
subsistence, at rates authorized for employees of agencies
under subchapter I of chapter 57 of title 5, United States
Code, while away from their homes or regular places of
business.
(c) Chair.--The President shall designate an individual to
serve as Chair of the Commission for a term of 3 years,
except that until the Commission has been in operation for 3
full years the term of the individual so designated shall be
1 year. Any individual designated as chair is eligible for
redesignation as chair.
(d) Meetings--The Commission shall meet at the call of the
Chair. A majority of the members shall constitute a quorum,
but a lesser number may conduct the business of the
Commission.
(e) Staff.--
(1) In general.--The Commission shall appoint and fix the
compensation (in accordance with the guidelines prescribed by
the Administrator of General Services under section 7(d) of
the Federal Advisory Committee Act) of staff comprising--
(A) staff selected by the Chair as permanent staff of the
Commission; and
(B) staff selected by each Member as staff of the Member
for the duration of the Member's appointment to the
Commission.
(2) Qualifications.--Staff shall be selected from among
employees of business and professional firms in the business
of the development of, manufacture and operation for, or use
of space, individuals with entrepreneurial experience,
employees of research centers and national laboratories,
scholars, professionals, and academics whose work
and insights are such that their work in support of the
Commission will enhance the Nation's ability to guide and
direct the space program.
(3) Detailing of federal employees.--At the request of the
Commission, the head of a Federal department or agency may
assign an employee to serve as a member of the Commission
staff while employed by the United States.
(4) Experts and consultants.--
(A) In general.--The Commission may obtain the services of
experts and consultants in the private and nonprofit sectors
in accordance with section 3109 of title 5, United States
Code.
(B) Available arrangements.--In obtaining any service
described in subparagraph (A), the Commission may use any
available grant, contract, cooperative agreement, or other
arrangement authorized by law.
(C) Notice.--The Commission shall give public notice of any
such grant, contract, cooperative agreement, or other
arrangement before making any such grant or executing any
such contract, cooperative agreement, or other arrangement.
SEC. 4. GENERAL DUTIES.
(a) In General.--The Commission shall--
(1) provide advice and counsel to the President and the
Congress of the United States on matters related to the
future development and use of space;
(2) address questions of special merit posed by the
President or by the Congress to be addressed by the
Commission,
(3) conduct studies, assessments, and other methods of
evaluation, including market, business, and financial
assessments, necessary to reach conclusions and to formulate
recommendations about the future of space;
(4) convene and establish public forums, reviews, and other
means of public discourse for purposes of gathering and
distributing information,facts, opinions, and data related to
the future of space;
(5) confer With Federal, State, and local governments and
regional organizations, United States corporations,
laboratories, research centers and universities, and
appropriate departments, agencies, and enterprises of other
Nations on questions related to the development and use of
space;
(6) make other recommendations as necessary to achieve the
expanded development and use of space, including assessments
of the status, focus, and effectiveness of government and
industry pro grams and efforts designed to achieve that
purpose;
(7) propose and establish a national approach for the
safety of space flight in support of commercial, military and
civilian space and suborbital space programs, including
issues related to the commercial licensing and operation of
space vehicles, the regulation, management, and control of
space flight parts, components, systems, and facilities, and
the training and advancement of government and industry
personnel necessary, to achieve safe space flight; and
(8) advise the President and the Congress on any changes in
Federal law or international agreements necessary to achieve
the recommendations, solutions, and outcomes proposed by the
Commission.
(b) Methods of Space Flight.--In carrying out its duties
under subsection (a), the Commission shall consider the
potential for the future use of space by human and robotic
means and the likely contribution of both to the long-term
development and use of space.
(c) Disclaimer.--Nothing in this Act is intended--
(1) to prejudice the disposition, or outcome of decisions
related to the ownership or institutional operation and
support, of Federal laboratories, centers, or bases; or
(2) to preclude the use of special classes, de signs, or
certification rules and standards peculiar to the use of
military space vehicles.
SEC. 5. SPECIFIC REPORTS AND ADVISORY ACTIVITIES.
(a) Space Shuttle; International Space Station.--
(1) In general.--The Commission shall evaluate the
findings, recommendations, and observations of the Columbia
Accident Investigation Board and the activities of the
National Aeronautics and Space Administration to respond to
the Board's report, in eluding issues related to the re-
flight of the Space Shuttle, alternative near-term crewed
vehicle options, and changes in the agency's organization,
management, technical administration, and conduct of safety,
operations and engineering, and training, and other changes
intended to ensure the safety of space operations and the
dignity of human life.
(2) Criteria for return to operations.--The Commission
shall make recommendations to the President and the Congress
concerning--
(A) any additional criteria and conditions that the
Commission considers critical for the safe operation of the
Space Shuttle that war rant demonstration during the initial
and subsequent return-to-flight test and demonstration
missions; and
(B) longer-term criteria and conditions necessary for a
return to sustained operation and management of human space
flight following the initial Space Shuttle re-flight and test
and demonstration flights.
(3) Evaluation of human space flight management reforms.--
Commission shall assess--
(A) the capability of the National Aeronautic and Space
Administration to resolve all findings, recommendations, and
observations of the Columbia Accident Investigation Board to
the Commission's satisfaction, including management and
technical reforms necessary to achieve safe space flight;
(B) the relationship of the National Aeronautic and Space
Administration to its Industrial, scientific, and commercial
partners and the proper role of each party in the selection,
design, development, and operation of high risk space flight
systems; and
(C) additional workforce, organization, and management
reforms that may be required to enhance further the ability
of the National Aeronautic and Space Administration, its
partners, or other agencies of the United States to achieve
safety of human space flight.
(4) Consideration of the international space station and
alternative space transportation solutions.--In making its
evaluation and recommendations under this subsection the
Commission shall consider--
(A) the condition of the International
Space Station along with the further risk to or security of
human life resulting from any decision to accelerate or slow
the return to assembly and operation of the International
Space Station and sustained human space flight operations;
(B) alternative space vehicle and crewing options that meet
the highest achievable stand and of crew safety and security
on-board the international Space Station in the shortest
amount of time;
(C) the modification or purchase of existing space vehicles
necessary to achieve a higher standard of heightened crew
safety or enhanced ability to conduct safe human space
flight operations;
(D) the acquisition or development of crewed vehicles on a
schedule significantly more aggressive that the proposed
schedule of the Orbital Space Plane; and
(E) the contribution of any proposed vehicle options to
purposes in space other than servicing and support of the
International Space Station.
(4) Reports to congress.--
(A) Alternative means of crew transfer.--Within 3 months
after the full Commission has taken office, it shall report
to the President and the Congress on crewing options for the
Space Shuttle during the period of assembly of the
International Space Station, alternative interim use of
available space vehicles for these operations, and
alternative or accelerated United States crewed vehicle
modification or development options in lieu of or in addition
to the proposed Orbital Space Plane program.
(B) Space shuttle return-to-flight.--
(i) Preflight advice.--On a continuous basis from the
initial return-to-flight mission of the Space Shuttle through
the final such mission, the Commission shall advise the
Administrator, the President, and the Congress of the results
of its review and assessment of the Space Shuttle return-to-
flight, including any additional criteria the
[[Page S14037]]
Commission establishes for return-to-flight missions.
(ii) Final preflight recommendation.--Within 60 days before
the planned date for the first Space Shuttle return-to-
flight, and within 30 days before each subsequent test or
demonstration flight of the Space Shuttle, the Commission
shall transmit its final recommendations for return-to-flight
to the Administrator, the President, and the Congress. In
addition, the Commission shall attach to each such
transmittal to the President and the Congress a record of its
recommendations to the Administrator and a description of the
Administrator's responses and actions in response to those
recommendations.
(iii) Post-resumption analysis.--Within 6 months after the
first successful return-to-flight mission of the Space
Shuttle, the Commission shall submit a report to the
President and the Congress summarizing the Commission's and
the National Aeronautics and Space Administration's work on
the re-flight of the Space Shuttle and addressing further
changes that should be accomplished to ensure safe continuous
operation of the Space Shuttle and the International Space
Station. The report shall address the status of
organizational, management, and technical changes in the
National Aeronautics and Space Administration, their
effectiveness in resolving concerns about the safety,
operations, engineering, and management cultures of the
agency, and their effectiveness in resolving concerns and
risks associated with a return-to-normal operations for the
Space Shuttle and the International Space Station.
(b) Future Launch Technology and the Development of and
Uses for Space.--
(1) In general.--The Commission shall--
(A) advise the President and the Congress on the state of
the Nation's investment in and development of advanced space
launch technology, including advanced space lift propulsion
systems;
(B) make recommendations on steps necessary to accelerate
the development of technologies and capabilities to advance
the economy of space flight and the prospect for the expanded
use of space for economic, commercial, and industrial
purposes;
(C) assess how State and local governments and regional
authorities might benefit from the expanded use of space;
(D) evaluate the ability of the Nation's private research
centers, laboratories, and private and public universities to
contribute to and benefit from the expanded development and
use of space;
(E) assess the future use of space for exploration,
science, research, national security, and public safety
ensure that such uses are consistent with the long-term
economic development of space, and are designed to enhance
the industrial and commercial capabilities of space flight
whenever possible; and
(F) make detailed recommendations related to the use of
budget, regulatory, and licensing powers and authorities of
the United States to enhance, to better plan for, and to
coordinate the activities of the United States related to the
development and use of space.
(2) Report to congress.--By September 1, 2005 the
Commission shall transmit to the Congress a report that--
(A) summarizes its recommendations for future national
goals for the development and use of space;
(B) provides a blueprint of capabilities that could and
should be achieved by the end of the present decade, by 2015,
and by 2025 in order to better position the Nation to achieve
those goals; and
(C) addresses potential markets and uses for space and the
means of financing the development and use of space.
(c) National Approach to the Safety of Space Flight.--
(1) In general.--The Commission shall conduct a review and
assessment of the Nation's program of safety in space flight
as conducted by the United States, the commercial space
industry, and other private parties.
(2) Contents.--The review and assessment shall--
(A) assess the current use of inspection, acceptance, and
commercial licensing to certify the safety, flight
worthiness, and flight readiness of space vehicles and their
associated launch and ground control facilities;
(B) evaluate and compare current space launch and flight
operations practices, including the promulgation of flight
rules and over-flight plans of populated areas;
(C) assess and compare how Federal agencies, private launch
operators, and commercial industry make determinations of
flight worthiness and ground and flight system readiness,
including the use of tests, analyses, demonstrations, and
other means whereby the operational readiness of space
vehicles, crew, and ground systems are verified to be ready
for launch and operation;
(D) address current government and industry practices for
conducting and coordinating design and decision rules within
and among space management agencies, firms, organizations,
and ground control and flight operations management centers
before, during, and after flight; and
(E) assess practices and conditions related to the
acquisition and sale of parts, components, systems, services,
and capabilities among Industry prime and supplier
contractors and the Federal Government, including
outsourcing, sole source, and other competitive and non-
competitive forms of relationship, and their impact upon
safety.
(3) Report to congress.--No later than September 1, 2005,
the Commission shall transmit to the Congress a report that--
(A) summarizes the results of the review and assessment
required by paragraph (1); and
(B) makes recommendations for a National program of--
(i) management of safe commercial, civil, and military
space flight; and
(ii) regulation of the design, certification, or licensing
of space flight systems for launch and landing over the
United States, or for orbital or suborbital operation using
crew or passengers aboard commercial or civil vehicles
licensed or operated by the United States.
(c) Annual Report.--In addition to other reports required
or permitted under this Act, within 60 days after the end of
each fiscal year, the Commission shall provide an annual
report to the Congress that--
(1) summarizes its activities, reports, findings,
conclusions, and recommendations during that fiscal year; and
(2) contains a year-end financial statement of the
Commission's operations, including a detailed statement of
the purposes for which funds have been expended by the
Commission.
(d) Other Reports.--The Commission may also report to the
President and the Congress on other space related questions
and issues raised by the Congress, the President, or on its
own initiative.
SEC. 6. DEFINITIONS.
In this Act:
(1) Administrator.--The term ``Administrator'' means the
Administrator of the National Aeronautics and Space
Administration.
(2) Commission.--The term ``Commission'' means the National
Space Commission established by section 3.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Commission
such sums as may be necessary to carry out its duties under
this Act.
____
[From the New York Times, Nov. 5, 2003]
NASA Supporters Seek National Debate on Space Goals
(By Matthew L. Wald)
Washington, Nov. 4--After the shuttle Columbia
disintegrated on Feb. 1, many supporters of NASA expected a
renewed national debate on the goals of the space program.
But nine months later, supporters of space exploration and
the science program say that the subject appears to be in
danger of slipping below the national horizon.
``There have been fits and starts of a national debate,''
said Senator Ernest F. Hollings of South Carolina, the
ranking Democrat on the Commerce Committee, which has
jurisdiction over NASA.
Mr. Hollings plans to introduce a bill on Wednesday to
create a national space commission to oversee NASA's progress
in fixing the hardware and the ``broken safety culture''
identified in the Columbia investigation, and to help set
goals.
Senator Hollings' bill, which has six sponsors, all
Democrats, joins a varied flock of measures on the House
side, none likely to see major action this year.
``It's not commanding anywhere near the level of attention
that the Challenger did,'' said a House staff aide who was on
Capitol Hill at the time of that accident, in 1986.
The war in Iraq helps explain the difference, the aide
added, but beyond that, ``space is more humdrum now,'' even
when astronauts die.
Sean O'Keefe, the NASA administrator, said in testimony
last week that the Bush administration would produce a new
plan for space, including a replacement vehicle for the
shuttle, now more than 20 years old. He said Congress should
wait until that plan is released, but he refused to predict
how long that would take.
The leisurely pace contrasts with the push by the Columbia
Accident Investigation Board to complete its work over the
summer so members of Congress could digest the report during
their recess and be ready for a vigorous debate when they
returned.
The most prominent feature of the debate so far has been a
skirmish between NASA and the chairman of the House Science
Committee and the ranking Democrat on the panel. The two
lawmakers, Representatives Sherwood Boehlert, Republican of
New York, and Ralph M. Hall, Democrat of Texas, suggested
that NASA hold off on development of an orbital space plane,
a crew-transport vehicle that could replace the shuttle,
until an ``overall vision for the human spaceflight program''
emerges.
Mr. Boehlert said at a hearing on Oct. 16 that NASA would
be successful ``only if it's pursuing a clear and broad
national consensus with sustained and adequate funding,'' and
he added, ``That hasn't been the case in three decades.''
Mr. O'Keefe, responding to the letter on the orbital space
plane, argued that the project was still at a conceptual
stage and should proceed.
Beyond establishing a commission to oversee NASA's
progress, the Senate bill to be introduced on Wednesday seeks
``to address broader questions about the goals and methods we
use,'' with specific concern for public and private
investment in spaceflight and use of it. In remarks prepared
for delivery on the Senate floor on Wednesday, Mr. Hollings
argues that while economics of spaceflight should not take
precedence over safety, ``we also know that, in the past, its
cost has driven us down pathways that have not resulted in
success.''
[[Page S14038]]
On the House side, Representative Bart Gordon, Democrat of
Tennessee, introduced a bill that would have future accidents
investigated by a presidential commission independent of
NASA. The Columbia Accident Investigation Board began under a
charter written after the Challenger accident, with members
selected according to positions they held in the Air Force,
Federal Aviation Administration and other agencies.
Mr. Gordon's bill was approved by a subcommittee but has
gone no further.
Mr. Hall, the ranking Democrat on the House Science
Committee, introduced a bill on Oct. 1, with 24 sponsors,
including 3 Republicans, that would have the National Academy
of Sciences and the National Academy of Engineering assemble
an oversight committee, as was done after the Challenger
accident. NASA has generally opposed outside oversight.
Mr. Hall also introduced an amendment to an appropriations
bill that would mandate a $15 million study of shuttle crew
escape, to be performed by NASA. The House passed the bill,
and it is now in a conference committee.
Representative Nick Lampson, Democrat of Texas, has
introduced a measure that would require NASA to develop
reusable spaceships that could sit for long periods balanced
between the gravitational pull of Earth and the Sun or the
Moon; ships that could reach an asteroid; and, ultimately,
ones that could reach Mars. The bill has 24 sponsors but has
not yet been taken up in committee.
Mr. Lampson said in a telephone interview that he was glad
that Senator Hollings was focused on the problem, but he
added, ``we don't need a commission, we need a commitment for
NASA.''
``If the goals get set, we will re-energize the academic
community, and the space industrial community,'' he said,
predicting that missions to Mars would ``do a great deal to
move this country forward.''
Mr. Hollings, in a separate interview, said, ``I want to go
to Mars, too, but unless you get the culture changed and
fixed, we're not going anywhere.''
______
By Mr. AKAKA (for himself, Mr. Fitzgerald, and Mr. Lieberman):
S. 1822. A bill to require disclosure of financial relationships
between brokers and mutual fund companies and of certain brokerage
commissions paid by mutual fund companies; to the Committee on Banking,
Housing, and Urban Affairs.
Mr. AKAKA. Mr. President, I rise today to introduce legislation
intended to restore public trust in mutual funds, the Mutual Fund
Transparency Act of 2003. I thank Senator Fitzgerald and Senator
Lieberman for cosponsoring my bill. I greatly appreciate the efforts of
Senator Fitzgerald to address this issue. Our Financial Management,
Budget, and International Security Subcommittee held a very thorough
hearing on mutual fund trading abuses on Monday. I applaud the efforts
of Representative Richard Baker for his leadership and his efforts to
improve mutual fund governance. I also commend the efforts of New York
Attorney General Eliot Spitzer and the Secretary of Massachusetts
William Galvin for their efforts to pursue individuals that have harmed
mutual fund investors.
Mr. President, 95 million people have placed a significant portion of
their future financial security into mutual funds. Mutual funds provide
middle-income Americans, blue and white collar workers and their
families, with an investment vehicle that offers diversification and
professional money management. Mutual funds are what average investors
rely on for retirement, savings for children's college education, or
other financial goals and dreams.
My legislation will bring about structural reform of mutual fund
governance and increase disclosures in order to provide useful and
relevant information to mutual fund investors. I ask unanimous consent
that a letter of support for my bill from the Consumer Federation of
America, Fund Democracy, Consumer Action, U.S. Public Interest Research
Group, and Consumers Union be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Consumer Federation of America, Fund Democracy, Inc.,
Consumer Action, U.S. Public Interest Research Group,
Consumers Union,
October 31, 2003.
Hon. Daniel K. Akaka,
U.S. Senate, Washington, DC.
Dear Senator Akaka: We are writing to express our
enthusiastic support for your draft legislation to increase
the transparency of mutual disclosures and enhance the
independence of fund oversight. Over the last two decades,
mutual funds have become firmly established as average
Americans' investment vehicle of choice, and investors have
for the most part benefitted greatly from the ability mutual
funds have offered even those of modest means to diversify
their portfolios and obtain professional management. However,
fund rules in some areas have not kept pace with industry
practices, and the recent scandals embroiling the mutual fund
industry have raised serious questions about the quality of
corporate governance in this industry.
Given the importance of mutual funds in the financial
portfolios of average Americans and the heavy reliance of the
least sophisticated investors on these investment vehicles,
we applaud your efforts to address key weaknesses in the
regulatory structure for mutual funds. Your proposed reforms
to improve disclosures about fund costs and strengthen the
independence of mutual fund boards, if adopted, should help
the fund industry to regain the investor trust that has been
the key to its success over the years but has been so
severely undermined by recent revelations.
1. We support requiring disclosure of broker compensation for
mutual fund transactions
The legislation would require disclosure of the
compensation brokers receive for selling funds. While funds
are currently required to disclose the existence of such
payments in fund prospectuses, the actual amount of the
broker's compensation for a particular mutual
fund transaction does not currently have to be disclosed.
This from of compensation creates a conflict of interest
between the broker, who may be inclined to recommend the
fund that offers him or her the highest compensation, and
the investor, whose interest is in obtaining the highest
quality fund at the lowest cost. By requiring timely
disclosure to investors of the actual dollar amount of
these commissions, your bill should help to increase
investors' awareness of the existence and extent of this
conflict of interest and its potential to induce their
broker to place his or her interests ahead of theirs.
Ample evidence that brokers do not always put investors'
interests first can be found in the allegations of improper
sale of fund B shares at some fund companies. In addition, a
recent Consumer Federation of America-Fund Democracy study of
excess costs paid by investors in S&P 500 Index funds found
that many of the funds with unjustifiably high expense ratios
were funds that brokers sold on commission. Since costs
subtract directly from fund performance, investors in these
funds end up paying a premium for sub-par performance. Had
these investors been made aware of the often substantial
payments their brokers received on the sale, they might have
been encouraged to look more closely at whether the fund or
share type being sold was really the best for them.
2. We support requiring improved disclosure of portfolio
transaction costs
The legislation would also require mutual funds to
disclosure in the prospectus the brokerage commissions they
pay on portfolio transactions and to include this cost in the
fund expense ratio. Portfolio transaction costs vary greatly
among funds and can be the single largest fund expense,
exceeding all other fund expenses combined. These costs are
not, however, currently included in fee information provided
in the prospectus. The only public disclosure of portfolio
transaction costs is a statement of the dollar amount of the
fund's commissions in the Statement of Additional
Information, a document never reviewed by the vast majority
of mutual fund investors.
Fuller disclosure of portfolio transaction costs would help
investors to hold fund advisers accountable for their trading
practices. It also would provide a collateral benefit in
connection with funds' soft dollar practices. Commissions
paid by funds typically pay for both execution and research
services. Since soft dollars pay for research that fund
advisers would otherwise have to pay for themselves, this
creates a significant conflict of interest for fund advisers.
Requiring brokerage commission cost disclosure would subject
these fund expenditures, including expenditures on soft
dollar services, to market forces, and in the process provide
a practical solution to the problem of regulating soft dollar
practices.
3. We support reforms to enhance the independence of mutual
fund boards.
The legislation contains a number of provisions to
strengthen the independence of fund boards. It would require
that 75 percent of board members, including the board
chairman, be independent. It would substantially strengthen
the definition of independent director by excluding
individuals who had served as directors, officers, or
employees within the past 10 years of the fund's manager,
principal underwriter, or other significant service
provider. It would delegate selection of new independent
directors exclusively to existing independent directors.
And it would establish qualification standards for board
members that must be publicly disclosed.
The recent investigation into market timing and late
trading at certain mutual funds has raised serious questions
about the quality of oversight provided by fund boards. Of
particular concern are the allegations that some Putnam fund
managers and the CEO of the Strong fund family were timing
their own funds--essentially picking the pockets of their own
shareholders to the tune of several hundred thousand dollars
in each instance. This is an unconscionable violation
[[Page S14039]]
of these fund managers' fiduciary duty to their shareholders.
It is also strong evidence of the need to end the domination
of fund boards by the fund manager. Increasing the
representation of independent members on boards, making sure
that independent members are truly independent, and ensuring
that the boards are led by independent members should go a
long way toward advancing that goal.
4. Other bill provisions would also benefit investors
The recent mutual fund scandals are not just a corporate
governance failure--though they certainly are that. They are
also a regulatory failure. The fact is that the SEC was
apparently aware of problems related to market timing for
years and had drifted along without doing anything about it.
Given the lack of clear direction from the SEC, it is hardly
surprising that fund boards failed to closely supervise the
trading practices at funds they oversaw. Your bill offers an
innovative approach to enhancing the quality of fund board
oversight. It would direct the SEC to study the benefits of
creating a Mutual Fund Oversight Board, generally modeled
after the Public Company Accounting Oversight Board, with
authority to examine and bring enforcement actions against
mutual fund boards of directors. Under this approach, the SEC
would retain responsibility for direct oversight of
investment adviser, but that responsibility would be
supplemented by the new independent agency's supervision of
fund boards. We believe this approach is well worth studying.
We also support the bill's provisions requiring disclosure
of portfolio managers' compensation and ownership of fund
shares (something that might have discouraged market timing
by fund managers), as well as its proposed GAO study of
mutual fund advertising practices and SEC study of financial
literacy. Such a study should look at innovative disclosure
methods designed to reach unsophisticated investors--those
who fail to take costs into account, for example--with
information they understand and act on.
conclusion
Recent events have provided a rude awakening to those who
have long trusted mutual funds as the one place where the
needs of average investors are generally well protected. Your
bill offers a reasonable approach--one that recognizes the
continued benefits of mutual fund investing for millions of
Americans but also recognizes that reforms are needed to
restore investor confidence in the integrity of this
industry. Please let us know what we can do to assist in its
passage.
Respectfully submitted,
Barbara Roper,
Director of Investor Protection, Consumer Federation of
America.
Mercer Bullard,
Executive Director, Fund Democracy.
Kenneth McEldowney,
Executive Director, Consumer Action.
Edmund Mierzwinski,
Consumer Program Director, U.S. Public Interest Research
Group.
Sally Greenberg,
Senior Counsel, Consumers Union.
Mr. AKAKA. I also ask unanimous consent that a letter of support for
the legislation from AARP be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
AARP,
Washington, DC, November 4, 2003.
Hon. Daniel K. Akaka,
U.S. Senate,
Washington, DC.
Dear Senator Akaka: AARP supports your effort to improve
investor awareness of mutual fund costs, and to improve the
independent oversight and governance functions of fund boards
of directors. The legislation you have introduced, ``the
Mutual Fund Transparency Act of 2003,'' would put into effect
an overdue upgrade in investor protection for the ordinary
saver-investor. These reforms are already warranted by the
continuing evolution in market practices and the growth in
market choices. They are now more urgently required.
Mounting allegations of illegal--at best unethical--
practices by mutual fund management companies, executives and
brokers highlight the need for prompt action. We are
concerned that lay investor confidence in the mutual fund
industry not be allowed to deteriorate further--specifically
in its ability to reliably provide fairly priced benefits of
investment diversification and expert management.
With regard to initiatives designed to increase fund
transparency, we strongly support the bill's provisions to
require that: fees be disclosed in dollar amounts; fee
disclosures incorporate all fees, including portfolio
transaction costs; fee disclosures identify all distribution
expenses; and compensation paid to portfolio managers and
retail brokers be fully disclosed.
While greater transparency is essential to fair competition
among funds for investors, we believe it does not provide a
sufficient check on the cost of fund governance. Mutual funds
allow investors to share the costs of professional money
managers--who under the 1940 Investment Company Act are
called ``advisers.'' However, most funds are not established
by investors but rather are incorporated by advisory firms,
who then contractually provide research, trading, money
management and customer support services, and also have some
representation on the fund's board. The advisory firms have
their own corporate charters and are accountable to their own
boards of directors, posing--as we are seeing--a range of
potential conflicts of interest in the costs of services
provided to the fund.
We support the provisions in the proposal to strengthen the
role and independence of boards of directors, which should
reduce potential conflicts of interest. Specifically, we
support the requirement that: a super-majority (i.e., two-
thirds to three-fourths) of fund board members be
independent; the board chairman be selected from among the
independent members; and the independent directors be
responsible for establishing and disclosing the qualification
standards of independence, and for nominating and selecting
all subsequent independent board members.
We also see merit in the bill's requirements for three
separate studies of investor financial literacy, the value of
creating a mutual fund oversight board, and mutual fund
advertising.
The importance of the mutual fund market as a critical
component of the economic security of all Americans--
especially order persons--should not be underestimated.
Similar--although not identical--legislation (H.R. 2420) is
pending before the House financial Services Committee. We
look forward to working with you and with the other members
of the Senate to enact this measured and important piece of
investor protection legislation. Please feel free to contact
me, or have your staff call Roy Green of our Federal Affair
staff at (202) 434-3800, if you have any questions about our
views.
Sincerely,
David Certner,
Director, Federal Affairs.
Mr. AKAKA. Mr. President, recent revelations of widespread market-
timing and late-trading abuses demonstrate the failures of mutual fund
boards of directors to fulfill their fiduciary obligations to
shareholders. The activities of Canary Capital Partners and Putnam
Investments are two deeply troubling examples. However, it is likely
that the trading abuses are much more routine. At our hearing, Mr.
Stephen Cutler, Director, Division of Enforcement, Securities and
Exchange Commission, SEC, testified that preliminary results of an SEC
survey show that about ``50 percent of responding fund groups appear to
have one or more arrangements with certain shareholders that allow
these shareholders to engage in market timing.'' This statistic is just
one example of mutual funds having different sets of rules for large
and small investors. These differing rules allow the larger investors
to profit at the expense of average, ordinary investors who are working
toward their long-term financial goals.
The abuses that have been brought to our attention make it clear that
the boards of mutual fund companies are not providing sufficient
oversight. To be more effective, the boards must be strengthened and
more independent. Investment company boards should be required to have
an independent chairman, and independent directors must have a dominant
presence on the board. My bill strengthens the definition of who is
considered to be an independent director. It also requires that mutual
fund company boards have 75 percent of their members considered to be
independent. To be considered independent, shareholders would have to
approve them. My legislation also prohibits the board from making
decisions that require a vote of a non-independent director. In
addition, a committee of independent members would be responsible for
nominating members and adopting qualification standards for board
membership. These steps are necessary to add much needed protections to
strengthen the ability of mutual fund boards to detect and prevent
abuses of the trust of shareholders.
In addition, this bill requires the SEC to develop rules to disclose
the compensation of individuals employed by the investment advisor of
the company to manage the portfolio of the company and their ownership
interest in the company. Consumers deserve to know relevant information
about the portfolio manager's incentives and whether they are properly
aligned with those of their shareholders. Again, I am referring to
ordinary American families patiently working toward their long-term
financial goals.
[[Page S14040]]
The strengthening of boards to protect shareholders is only one
important aspect of my bill. My bill will also increase the
transparency of often complex financial relationships between brokers
and mutual funds in ways that are meaningful and easy to understand for
investors.
Shelf-space payments and revenue-sharing agreements between mutual
fund companies and brokers present conflicts of interest that must be
addressed. Brokers also compile preferred lists which highlight certain
funds, which typically generate more investment than those left off the
list. It is not clear to investors that the mutual fund company also
may pay a percentage of sales and/or an annual fee on the fund assets
held by the broker to obtain a place on the preferred list or to have
their shares sold by the broker.
Shelf-space and revenue sharing agreements present risk to investors.
Brokers have conflicts of interest, some of which are unavoidable, but
these need to be disclosed to investors. Without such disclosure,
investors cannot make informed financial decisions. Investors may
believe that brokers are recommending funds based on the expectation
for solid returns or low volatility, but the broker's recommendation
may be influenced by hidden payments.
The SEC has exempted mutual funds from Rule 10b-10, which requires
that confirmation notices of securities transactions be sent to
customers to indicate how the broker was compensated in the trade.
Mutual funds should be subject to this confirmation notice requirement.
My legislation will require brokers to disclose in writing, to those
who purchase mutual fund company shares, the amount of compensation the
broker will receive due to the transaction, instead of simply providing
a prospectus. The prospectus fails to include the detailed relevant
information that investors need to make informed decisions. Mutual fund
investors deserve to know how their broker is being paid.
My bill also will inject a measure of reality into the expenses of
mutual funds. In order to increase the transparency of the actual costs
of the fund, brokerage commissions must be counted as an expense in
filings with the SEC and included in the calculation of the expense
ratio, so that investors will have a more realistic view of the
expenses of their fund. Consumers often compare the expense ratios of
funds when making investment decisions. However, the expense ratios
fail to take into account the costs of commissions in the purchase and
sale of securities. Therefore, investors are not provided with an
accurate idea of the expenses involved. Currently, brokerage
commissions have to be disclosed to the SEC, but not to individual
investors. Brokerage commissions are only disclosed to the investor
upon request. My bill puts teeth into brokerage commission disclosure
provisions and ensures that commissions will be included in a document
that investors actually have access to and utilize.
This bill also creates a powerful incentive to reduce the use of soft
dollars. Soft dollars refer to the bundling of services or products
into commissions. Mutual fund companies often pay higher commissions in
order to obtain other products and services, typically research on
stocks. Soft dollars can be used to lower their expenses by having
services and products paid for by soft dollars. Purchases using soft
dollars do not count as expenses and are not calculated into the
expense ratio. The SEC released a study in September 1998 concluding
that soft dollars were used to pay for research, salaries, office rent,
telephone services, legal expenses, and entertainment, among other
expenses.
At the hearing, Secretary Galvin called for a prohibition of soft
dollars. This is a recommendation that needs to be examined. However,
my bill provides an immediate alternative, which is to provide an
incentive for funds to limit their use of soft dollars by calculating
them as expenses. If commissions are disclosed in this manner, the use
of soft dollars will be reflected in the higher commission fees and
overall expenses. This will make it easier for investors to see the
true cost of the fund and compare the expense ratios of funds.
Some may argue that this gives an incomplete picture and fails to
account for spreads, market impact, and opportunity costs. However, the
SEC has the authority to address the issue further if it can determine
an effective way to quantify these additional factors. This bill does
not impose an additional reporting requirement that would be burdensome
to brokers. It merely uses what is already reported and presents this
information in a manner meaningful to investors.
My legislation also directs the SEC to conduct a study to assess
financial literacy among mutual fund investors. The SEC will identify
the most useful and relevant information that investors need prior to
purchasing shares, methods to increase the transparency of expenses and
potential conflicts of interest in mutual fund transactions, and a
strategy to increase the financial literacy of investors that results
in positive change in investor behavior. None of our disclosure
provisions will truly work unless investors are effectively given the
tools they need to make smart investment decisions.
Finally, my bill requires the General Accounting Office, GAO, to
study the current marketing practices for the sale of shares of mutual
funds. GAO will provide recommendations to improve investor protections
in mutual fund advertising to ensure that investors are able make
informed financial decisions when purchasing shares.
Public confidence in mutual funds will not recover if funds continue
to employ different sets of rules for large and small investors, engage
in ethical misconduct, and enrich themselves at the expense of
shareholders. The transgressions brought to light underscore the
absence of effective oversight by the boards of mutual funds companies.
This legislation will strengthen board independence and enhance the
transparency of financial relationships. The American investing public
deserves nothing less.
Mr. President, I look forward to working with my colleagues in
enacting meaningful reform of the troubled mutual fund industry. We
must act to restore trust in this critical investment vehicle that
people rely on for their financial future and goals. I ask unanimous
consent that the text of the Mutual Fund Transparency Act of 2003 be
printed in the Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1822
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 ``Mutual Fund Transparency Act
of 2003''.
SEC. 2. DISCLOSURE OF FINANCIAL RELATIONSHIPS BETWEEN BROKERS
AND MUTUAL FUND COMPANIES.
(a) In General.--Section 15(b) of the Securities Exchange
Act of 1934 (15 U.S.C. 78o(b)) is amended by adding at the
end the following:
``(11) Confirmation of transactions for mutual funds.--
``(A) In general.--Each broker shall disclose in writing to
customers that purchase the shares of an open-end company
registered under section 8 of the Investment Company Act of
1940 (15 U.S.C. 80a-8)--
``(i) the amount of any compensation received or to be
received by the broker in connection with such transaction
from any sources; and
``(ii) such other information as the Commission determines
appropriate.
``(B) Timing of disclosure.--The disclosure required under
subparagraph (A) shall be made to a customer not later than
as of the date of the completion of the transaction.
``(C) Limitation.--The disclosures required under
subparagraph (A) may not be made exclusively in--
``(i) a registration statement or prospectus of an open-end
company; or
``(ii) any other filing of an open-end company with the
Commission.
``(D) Commission authority.--
``(i) In general.--The Commission shall promulgate such
rules as are necessary to carry out this paragraph not later
than 1 year after the date of enactment of the Mutual Fund
Transparency Act of 2003.
``(ii) Form of disclosure.--Disclosures under this
paragraph shall be in such form as the Commission, by rule,
shall require.
``(E) Definition.--In this paragraph, the term `open-end
company' has the same meaning as in section 5 of the
Investment Company Act of 1940 (15 U.S.C. 80a-5).''.
(b) Disclosure of Brokerage Commissions.--Section 30 of the
Investment Company Act of 1940 (15 U.S.C. 80a-29) is amended
by adding at the end the following:
[[Page S14041]]
``(k) Disclosure of Brokerage Commissions.--The Commission,
by rule, shall require that brokerage commissions as an
aggregate dollar amount and percentage of assets paid by an
open-end company be included in any disclosure of the amount
of fees and expenses that may be payable by the holder of the
securities of such company for purposes of--
``(1) the registration statement of that open-end company;
and
``(2) any other filing of that open-end company with the
Commission, including the calculation of expense ratios.''.
SEC. 3. MUTUAL FUND GOVERNANCE.
(a) Independent Fund Boards.--Section 10(a) of the
Investment Company Act of 1940 (15 U.S.C. 80a-10(a)) is
amended--
(1) by striking ``shall have'' and inserting the following:
``shall--
``(1) have'';
(2) by striking ``60 per centum'' and inserting ``25
percent'';
(3) by striking the period at the end and inserting a
semicolon; and
(4) by adding at the end the following:
``(2) have as chairman of its board of directors an
interested person of such registered company; or
``(3) have as a member of its board of directors any person
that is an interested person of such registered investment
company--
``(A) who has served without being approved or elected by
the shareholders of such registered investment company at
least once every 5 years; and
``(B) unless such director has been found, on an annual
basis, by a majority of the directors who are not interested
persons, after reasonable inquiry by such directors, not to
have any material business or familial relationship with the
registered investment company, a significant service provider
to the company, or any entity controlling, controlled by, or
under common control with such service provider, that is
likely to impair the independence of the director.''.
(b) Action by Independent Directors.--Section 10 of the
Investment Company Act of 1940 (15 U.S.C. 80a-10) is amended
by adding at the end the following:
``(i) Action by Board of Directors.--No action taken by the
board of directors of a registered investment company may
require the vote of a director who is an interested person of
such registered investment company.
``(j) Independent Committee.--
``(1) In general.--The members of the board of directors of
a registered investment company who are not interested
persons of such registered investment company shall establish
a committee comprised solely of such members, which committee
shall be responsible for--
``(A) selecting persons to be nominated for election to the
board of directors; and
``(B) adopting qualification standards for the nomination
of directors.
``(2) Disclosure.--The standards developed under paragraph
(1)(B) shall be disclosed in the registration statement of
the registered investment company.''.
(c) Definition of Interested Person.--Section 2(a)(19) of
the Investment Company Act of 1940 (15 U.S.C. 80a-2) is
amended--
(1) in subparagraph (A)--
(A) in clause (iv), by striking ``two'' and inserting
``5''; and
(B) by striking clause (vii) and inserting the following:
``(vii) any natural person who has served as an officer or
director, or as an employee within the preceding 10 fiscal
years, of an investment adviser or principal underwriter to
such registered investment company, or of any entity
controlling, controlled by, or under common control with such
investment adviser or principal underwriter;
``(viii) any natural person who has served as an officer or
director, or as an employee within the preceding 10 fiscal
years, of any entity that has within the preceding 5 fiscal
years acted as a significant service provider to such
registered investment company, or of any entity controlling,
controlled by, or under the common control with such service
provider;
``(ix) any natural person who is a member of a class of
persons that the Commission, by rule or regulation,
determines is unlikely to exercise an appropriate degree of
independence as a result of--
``(I) a material business relationship with the investment
company or an affiliated person of such investment company;
``(II) a close familial relationship with any natural
person who is an affiliated person of such investment
company; or
``(III) any other reason determined by the Commission.'';
(2) in subparagraph (B)--
(A) in clause (iv), by striking ``two'' and inserting
``5''; and
(B) by striking clause (vii) and inserting the following:
``(vii) any natural person who is a member of a class of
persons that the Commission, by rule or regulation,
determines is unlikely to exercise an appropriate degree of
independence as a result of--
``(I) a material business relationship with such investment
adviser or principal underwriter or affiliated person of such
investment adviser or principal underwriter;
``(II) a close familial relationship with any natural
person who is an affiliated person of such investment adviser
or principal underwriter; or
``(III) any other reason as determined by the
Commission.''.
(d) Definition of Significant Service Provider.--Section
2(a) of the Investment Company Act of 1940 is amended by
adding at the end the following:
``(53) Significant service provider.--
``(A) In general.--Not later than 270 days after the date
of enactment of the Mutual Fund Transparency Act of 2003, the
Securities and Exchange Commission shall issue final rules
defining the term `significant service provider'.
``(B) Requirements.--The definition developed under
paragraph (1) shall include, at a minimum, the investment
adviser and principal underwriter of a registered investment
company for purposes of paragraph (19).''.
(e) Study.--
(1) In general.--The Securities and Exchange Commission
shall conduct a study to determine whether the best interests
of investors in mutual funds would be served by the creation
of a Mutual Fund Oversight Board that--
(A) has inspection, examination, and enforcement authority
over mutual fund boards of directors;
(B) is funded by assessments against mutual fund assets;
(C) the members of which are selected by the Securities and
Exchange Commission; and
(D) has rulemaking authority.
(2) Report.--Not later than 1 year after the date of
enactment of this Act, the Securities and Exchange Commission
shall submit a report on the study required under paragraph
(1) to--
(A) the Committee on Banking, Housing, and Urban Affairs of
the Senate; and
(B) the Committee on Financial Services of the House of
Representatives.
SEC. 4. PORTFOLIO MANAGER COMPENSATION.
Not later than 270 days after the date of enactment of this
Act, the Securities and Exchange Commission shall prescribe
rules under the Investment Company Act of 1940, requiring
that a registered investment company disclose the structure
of, or method used to determine, the compensation of--
(1) individuals employed by the investment adviser of the
company to manage the portfolio of the company; and
(2) the ownership interest of such individuals in the
securities of the registered investment company.
SEC. 5. FINANCIAL LITERACY AMONG MUTUAL FUND INVESTORS STUDY.
(a) In General.--The Securities and Exchange Commission
shall conduct a study to identify--
(1) the existing level of financial literacy among
investors that purchase shares of open-end companies, as such
term is defined under section 5 of the Investment Company Act
of 1940, that are registered under section 8 of such Act;
(2) the most useful and understandable relevant information
that investors need to make sound financial decisions prior
to purchasing such shares;
(3) methods to increase the transparency of expenses and
potential conflicts of interest in transactions involving the
shares of open-end companies;
(4) the existing private and public efforts to educate
investors; and
(5) a strategy to increase the financial literacy of
investors that results in a positive change in investor
behavior.
(b) Report.--Not later than 1 year after the date of
enactment of this Act, the Securities and Exchange Commission
shall submit a report on the study required under subsection
(a) to--
(1) the Committee on Banking, Housing, and Urban Affairs of
the Senate; and
(2) the Committee on Financial Services of the House of
Representatives.
SEC. 6. STUDY REGARDING MUTUAL FUND ADVERTISING.
(a) In General.--The Comptroller General of the United
States shall conduct a study on mutual fund advertising to
identify--
(1) existing and proposed regulatory requirements for open-
end investment company advertisements;
(2) current marketing practices for the sale of open-end
investment company shares, including the use of unsustainable
past performance data, funds that have merged, and incubator
funds;
(3) the impact of such advertising on consumers;
(4) recommendations to improve investor protections in
mutual fund advertising and additional information necessary
to ensure that investors can make informed financial
decisions when purchasing shares.
(b) Report.--Not later than 1 year after the date of
enactment of this Act, the Comptroller General of the United
States shall submit a report on the results of the study
conducted under subsection (a) to--
(1) the Committee on Banking, Housing, and Urban Affairs of
the United States Senate; and
(2) the Committee on Financial Services of the House of
Representatives.
Mr. LIEBERMAN. Mr. President, I rise today to join with my colleagues
Senator Daniel Akaka and Senator Peter Fitzgerald and cosponsor
legislation that would begin the crucial process of reforming the
mutual fund industry. In the wake of shocking revelations of abusive
trading and self-dealing in some of America's largest funds, it is
imperative that we act quickly, and I commend my friend Senator Akaka
for his leadership. We must
[[Page S14042]]
do two things in order to reassure the 95 million Americans who invest
in mutual funds that they have not misplaced their trust. We must find
out how this was allowed to happen, and we must put safeguards in place
to prevent these widespread abuses from poisoning our markets again.
As the deceptions and conflicts of the Wall Street analysts were
uncovered last year in the wake of the Enron scandal, the oft-heard
advice to the average investor was to invest in mutual funds. Investors
took this advice in droves. Half of all American households own shares
in mutual funds, and of the $7 trillion invested in mutual funds, $2.1
trillion of it is invested for retirement.
Perhaps these working families felt comfortable entrusting their
precious savings with mutual funds because these funds offer one of the
most highly regulated investments available. Mutual funds, their
directors and their managers owe their investors a statutory fiduciary
duty. Mutual funds are overseen by the SEC through a prescribed
registration and reporting process as well as a regular examination and
audit process, pursuant to the Investment Company Act of 1940.
Unfortunately, the trust of these American families has been abused.
According to a just-released survey conducted by the Securities and
Exchange Commission, half of the largest 88 mutual funds have permitted
a practice called ``market-timing,'' which allows some investors to
trade quickly in and out of the funds, even though many of those funds
had explicit policies against such trading because of its detrimental
impact on other investors in the fund. Many fund companies admitted
providing portfolio information, unavailable publicly, to certain large
investors to help them make trading decisions. Also, a full one-quarter
of the brokerage firms surveyed indicated that they had allowed certain
customers to engage in late-trading, an illegal practice that allows
favored investors to execute trades based on that day's price, but
after the market close, when new information has come to light. Perhaps
most shocking, Stephen Cutler, Director of the SEC's Enforcement
Division, has said that there is evidence that officials at fund
companies profited personally at the expense of their customers by
market-timing their own funds.
The SEC didn't discover these abuses on its own initiative, however.
It acted only after the New York State Attorney General and the
Massachusetts Secretary of the Commonwealth took steps to investigate
and stop this conduct. The SEC didn't discover the abuses through the
extensive reporting process mutual funds go through; the SEC didn't
discover the abuses through the broad and regular examinations the SEC
does of these mutual funds; the SEC didn't even discover the abuses
after it received a tip from an insider, who went to the SEC with his
attorney, evidence in hand.
Yesterday, I sent a ten-page letter to SEC Chairman William
Donaldson, demanding to know how the SEC could have failed to uncover
such a sweeping problem in the mutual fund industry. I asked how the
SEC planned to change its practices in order to ensure that it is never
again caught so unaware. Congress gave the SEC the responsibility to
monitor the mutual fund industry, and we must ensure that the SEC does
its job.
This is not the first time the SEC has been caught off guard with a
scandal on Wall Street. In October 2002, the staff of the Senate
Governmental Affairs Committee, of which I was then the Chairman,
released a report, Financial Oversight of Enron: The SEC and Private-
Sector Watchdogs, detailing the ignored red flags and the missed
opportunities that kept the SEC from detecting the problems at Enron
before that company collapsed, taking with it the jobs and retirement
savings of thousands of Americans. Again, despite being fully aware of
the troubling conflicts faced by Wall Street analysts, the SEC turned a
blind eye to that problem until this Committee and others held hearings
on the issue and New York State Attorney General Eliot Spitzer exposed
how deeply deceptive many analyst recommendations truly were. I hope
this mutual fund scandal represents the last time the SEC is playing
regulatory catch-up.
In addition to holding the SEC accountable, Congress must also act to
protect investors by fixing the holes in the statutory scheme for
mutual funds. That's why I'm pleased to cosponsor the Mutual Fund
Transparency Act of 2003, which enjoys widespread support from consumer
groups. It contains many of the policy changes I urged the SEC to
consider in my letter to Chairman Donaldson. It would strengthen the
independence of mutual fund boards of directors by tightening the
definition of independence and by requiring that 75 percent of the
directors be independent. The bill would also require that mutual fund
boards have nominating committees comprised solely of independent
directors, so that directors are not chosen by management.
In my letter to the SEC, I also criticized the opaque or, in some
cases, lack of, disclosure to investors about mutual fund fees. The
Mutual Fund Transparency Act would significantly improve such
disclosure to investors, by including in the fees disclosed to
investors the costs the fund incurs when it executes trades of its
holdings. Currently, such costs are not included among these more
visible fees, which are disclosed in documents provided directly to
mutual fund shareholders. Trading costs are currently only disclosed in
filings with the SEC, but if this bill became law, trading costs would
be included among the fees provided directly to investors. Such
information is useful because it can give investors a sense of how
often their funds are buying and selling assets and at what expense.
The bill would also require funds to tell shareholders how fund
advisers are compensated. Public companies are required to tell their
shareholders how their managers are paid; mutual fund shareholders
should have the same information. Finally, the bill would require that
brokers offering mutual funds to investors inform those investors of
any fees or incentives those brokers are receiving for making those
sales in a sale confirmation.
The bill also mandates that the SEC study three initiatives to
improve mutual fund oversight and transparency. The first two ask the
SEC and the Comptroller General, respectively, to look at financial
literacy among mutual fund investors and at mutual fund advertising, to
determine how relevant information can be made clearer and more readily
understandable to the average investor. In my letter to the SEC, I
suggested the agency consider using consumer research methods in order
to achieve such a result. The third study required by the bill relates
to the formation of a Mutual Fund Oversight Board to take over the
frontline efforts of mutual fund regulation from the SEC, while
remaining under that agency's oversight. This may be a good approach,
but I have concerns about the costs of such a board being borne by
mutual fund investors, which is one of the areas suggested for study. I
hope other options would be explored.
The Mutual Fund Transparency Act is clearly an important first step
in closing some of the gaps in the laws governing these important
investment vehicles. But there is more work to do, and I look forward
to working with Senator Akaka and the other cosponsors of this bill in
making further necessary improvements. For example, we should consider
strengthening the fiduciary duties owed by mutual fund directors and
managers to their shareholders. In addition, as I indicated in my
letter to the SEC, guidelines must be developed to prevent mutual fund
directors from serving on more boards of funds than they can
effectively oversee; at some of the major funds, directors serve on a
hundred or more boards. Compliance officers at the funds must be
elevated to emphasize their role. I suggested in my letter to the SEC
that such a compliance officer should be active at each fund and should
report directly to an independent committee of the board.
Moreover, as I pointed out to the SEC in my letter to Chairman
Donaldson, we must close the loophole that allowed so many brokers and
mutual funds to circumvent the law on late trading. Imposing a hard
deadline of a time at which trades must be into the mutual fund may be
the solution to this problem. We also must provide even more, clearer
information to investors about the fees they are actually paying to
participate in mutual funds. In my letter the SEC, I asked
[[Page S14043]]
the agency why investors should not receive on their monthly statements
detail about the fees they actually paid to the fund during that time
period, similar to the finance charge information that credit card
consumers get. I also suggested that funds be required to provide
comparative fee information. This would help people make better
investment decisions, and might also encourage more competition among
funds to reduce expenses.
Mutual funds hold the nest eggs, the retirement savings, and the
college funds for many of America's working families. Through those
investments in their own futures, those families are also feeding
capital into today's economy, fueling the engine that creates and
maintains American jobs. In a very real sense, these mutual fund
investments are investments in the American dream. We must act now to
protect them, and to restore the integrity to the mutual fund industry.
Once again, I thank Senator Akaka for his leadership on this issue,
and I urge my colleagues to support this important and timely
legislation.
______
By Mr. BURNS (for himself and Mr. Baucus):
S. 1823. A bill to amend the Act of August 9, 1955, to authorize the
Assiniboine and Sioux Tribes of the Fort Peck Reservation to lease
tribally-owned land on the Fort Peck Indian Reservation for 1 or more
interstate gas pipelines; to the Committee on Indian Affairs.
Mr. BURNS. Mr. President, I rise today to introduce the Northern
Border Lease Extension legislation. Currently, and since 1981, Northern
Border Pipeline Company has leased tribally owned lands on the Fort
Peck Indian Reservation for its gas pipeline, which carries gas from
Alberta, Canada to consumers in the Midwest. This lease expires in
March 2011.
Northern Border wishes to have the right to continue to lease tribal
lands for up to fifty years beyond 2011 for its pipeline. They need to
be assured as soon as possible their lease can be extended. If not,
they must look for other options that would include constructing a new
pipeline to go around the Reservation by 2011.
If the lease is not extended, not only will Northern Border be forced
to build a new pipeline, but also the Assiniboine and Sioux Tribes of
the Fort Peck Reservation will lose over $20 million in payments from
Northern Border. Additionally, if extended, the lease would provide
tens of millions of dollars in additional payments, with the rental
payments increasing at an annual rate of three percent per year every
five years. These terms came about after negotiations between Northern
Border and the Assiniboine and Sioux Tribes of the Fort Peck
Reservation.
This legislation would allow the Tribes to enter into a lease with
Northern Border that would give Northern Border the right to continue
to lease tribal lands for up to fifty years beyond 2011 for its
pipeline. This is one of those great instances when both sides of a
situation agree and are of one mind. This provision was included in a
bill previously approved by the Senate Indian Affairs Committee, but
unfortunately for reasons not associated with this provision, is being
held up. Therefore, I wish to introduce this important piece of
legislation as a stand-alone bill.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1823
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. LEASE OF TRIBALLY-OWNED LAND BY ASSINIBOINE AND
SIOUX TRIBES OF THE FORT PECK RESERVATION.
The first section of the Act of August 9, 1955 (25 U.S.C.
415), is amended by adding at the end the following:
``(g) Lease of Tribally-Owned Land by Assiniboine and Sioux
Tribes of the Fort Peck Reservation.--
``(1) In general.--Notwithstanding subsection (a) and any
regulations under part 162 of title 25, Code of Federal
Regulations (or any successor regulation), subject to
paragraph (2), the Assiniboine and Sioux Tribes of the Fort
Peck Reservation may lease to the Northern Border Pipeline
Company tribally-owned land on the Fort Peck Indian
Reservation for 1 or more interstate gas pipelines.
``(2) Conditions.--A lease entered into under paragraph
(1)--
``(A) shall commence during fiscal year 2011 for an initial
term of 25 years;
``(B) may be renewed for an additional term of 25 years;
and
``(C) shall specify in the terms of the lease an annual
rental rate--
``(i) which rate shall be increased by 3 percent per year
on a cumulative basis for each 5-year period; and
``(ii) the adjustment of which in accordance with clause
(i) shall be considered to satisfy any review requirement
under part 162 of title 25, Code of Federal Regulations (or
any successor regulation).''.
______
By Mr. DeWINE:
S. 1825. A bill to amend title 18, United States Code, to provide
penalties for the sale and use of unauthorized mobile infrared
transmitters; to the Committee on the Judiciary.
Mr. DeWINE. Mr. President, I rise today, to introduce the Safe
Intersections Act of 2003. This bill would criminalize the unauthorized
sale and possession of a mobile infrared transmitter, MIRT.
A MIRT is a remote control for changing traffic signals. These
devices have been used for years by ambulances, police cars, and fire
trucks, allowing them to reach emergencies faster. As an ambulance
approaches an intersection where the light is red, the driver engages
the transmitter. That transmitter then sends a signal to a receiver on
the traffic light, which changes to green within a few seconds. This is
a very useful tool when properly used in emergency situations.
In a 2002 survey, the U.S. Department of Transportation found that in
the top 78 metropolitan areas, there are 24,683 traffic lights equipped
with the sensors. In my home State of Ohio, there is a joint pilot
project underway by the Washington Township Fire Department and the
Dublin Police Department to install these devices. Other areas in Ohio
where they are in use include Mentor, Twinsburg, Willoughby, and
Westerville. Across the country, law enforcement officers, fire
departments, and paramedics utilize this technology to make communities
safer.
However, recently it has come to light that this technology may be
sold to unauthorized individuals--individuals who want to use this
technology to bypass red lights during their commute or during their
everyday driving. MIRT was never intended for this use. MIRT
technology--in the hands of unauthorized users--could result in traffic
problems, like gridlock, or even worse, accidents in which people are
injured or killed.
Let me quote from an ad that was recently posted on the Internet
auction site, ``eBay'':
Tired of sitting at endless red lights? Frustrated by
lights that turn from green to red too quickly, trapping you
in traffic? The MIRT light changer used by police and other
emergency vehicles Change the Traffic Signal Red to Green
[for] only $499.00. Traffic Signal Changing Devices--It's
every motorist's fantasy to be able to make a red traffic
light turn green without so much as easing off the
accelerator. The very technology that has for years allowed
fire trucks, ambulances and police cars to emergencies
faster--a remote control that changes traffic signals--is now
much cheaper and potentially accessible.
This ad demonstrates the extent to which the potential widespread
sale and possession of MIRT technology by drivers would be a hazard to
public safety and must be stopped before it starts. That is why I am
introducing the Safe Intersections Act of 2003. I encourage my
colleagues to cosponsor this important piece of legislation.
I ask unanimous consent that the legislation I have just introduced
be printed in the appropriate place in the Record immediately following
the conclusion of my remarks.
______
By Mr. REID (for himself and Mr. Ensign):
S. 1826. A bill to direct the Secretary of the Interior to convey
certain land in Washoe County, Nevada, to the Board of Regents of the
University and Community College System of Nevada; to the Committee on
Energy and Natural Resources.
Mr. REID. Mr. President, sometime, when the opportunity arises, I am
going to introduce, for myself and Senator Ensign, the Dandini Research
Park Transfer Act, which will transfer an important tract of land in
Washoe County, Nevada, to the University and Community College System
of Nevada.
The University of Nevada holds two patents from the Bureau of Land
Management for approximately 467 acres of
[[Page S14044]]
public land located north of downtown Reno. In the early 1970s, the
land was patented to the university pursuant to the Recreation and
Public Purposes Act. Now known as the Dandini Research Park, it is the
home of Truckee Meadows Community College and the Desert Research
Institute's Northern Nevada Science Center.
Truckee Meadows Community College and its predecessor, Western Nevada
Community College, have provided educational programs and opportunities
to the residents of Reno, Sparks, and the surrounding communities for
over 30 years. Construction of the College's facilities on the Dandini
campus began in 1975, shortly after conveyance of the original patents.
For over 25 years the Desert Research Institute has excelled in
applied scientific research and the application of technologies to
improve people's lives in Nevada and throughout the world. Its three
core divisions of Atmospheric, Hydrologic, and Earth and Ecosystem
Sciences cooperate with two interdisciplinary centers to provide
innovative solutions to pressing environmental problems. The Center for
Arid Lands Environmental Management and the Center for Watersheds and
Environmental Sustainability apply scientific understanding to the
effective management of natural resources while addressing our needs
for economic diversification and science-based educational
opportunities. In doing so, DRI undertakes fundamental scientific
research in Nevada and around the globe. For example, as a key
participant in the U.S. Geological Survey Water Research Program, DRI
plays a critical role in identifying and helping protect the region's
scarce water resources.
DRI shares its facility with the Western Regional Climate Center, one
of six regional climate centers operating under the National Oceanic
and Atmospheric Administration's climate program. The Western Regional
Climate Center conducts applied research and provides high quality
climate data and information pertaining to the western United States.
The Desert Research Institute wishes to expand its Northern Nevada
Science Center. DRI is considering an innovative means of financing the
expansion, which would involve a private developer who would build and
finance the expansion and lease it back to DRI. The private developers
with whom DRI has discussed the proposal, as well as the Institute's
counsel, however, have pointed out that the terms of the patents and
the restrictions imposed by the Recreation and Public Purposes Act
represent obstacles to such an arrangement.
Truckee Meadows Community College and the Northern Nevada Science
Center are exceptional assets to the scientific and educational
community in the Truckee Meadows. The Center serves not only the
citizens of Washoe County, but the needs of all Nevadans and the
western United States as well. It deserves the opportunity to grow and
prosper with the community--one of the fastest-growing communities in
the Nation.
The bill Senator Ensign and I will introduce simply directs the
Secretary of the Interior to convey this property from the Bureau of
Land Management to the University and Community College System of
Nevada. Because of the overwhelming public benefit provided by the
Center, we ask that the land be conveyed for free, but that the
University cover the costs of the transaction.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 1826
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 ``Dandini Research Park
Conveyance Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Board of regents.--The term ``Board of Regents'' means
the Board of Regents of the University and Community College
System of Nevada.
(2) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
SEC. 2. CONVEYANCE TO THE UNIVERSITY AND COMMUNITY COLLEGE
SYSTEM OF NEVADA.
(a) Conveyance.--
(1) In general.--The Secretary shall convey to the Board of
Regents, without consideration, all right, title, and
interest of the United States in and to the approximately 467
acres of land located in Washoe County, Nevada, patented to
the University of Nevada under the Act of June 14, 1926
(commonly known as the ``Recreation and Public Purposes
Act'') (43 U.S.C. 869 et seq.), and described in paragraph
(2).
(2) Description of land.--The land referred to in paragraph
(1) is--
(A) the parcel of land consisting of approximately 309.11
acres and more particularly described as T. 20 N., R. 19 E.,
Sec. 25, lots 1, 2, 3, 4, 5, and 11, SE \1/4\ NW \1/4\, NE
\1/4\ SW \1/4\, Mount Diablo Meridian, Nevada; and
(B) the parcel of land consisting of approximately 158.22
acres and more particularly described as T. 20 N., R. 19 E.,
Sec. 25, lots 6 and 7, SW \1/4\ NE \1/4\, NW \1/4\ SE \1/4\,
Mount Diablo Meridian, Nevada.
(b) Costs.--The Board of Regents shall pay to the United
States an amount equal to the costs of the Secretary
associated with the conveyance under subsection (a)(1).
(c) Conditions.--If the Board of Regents sells any portion
of the land conveyed to the Board of Regents under subsection
(a)(1)--
(1) the amount of consideration for the sale shall reflect
fair market value, as determined by an appraisal; and
(2) the Board of Regents shall pay to the Secretary an
amount equal to the net proceeds of the sale, for use by the
Director of the Bureau of Land Management in the State of
Nevada, without further appropriation.
______
By Mr. KYL (for himself, Mr. Chambliss, Mr. Craig, Mr. Nickles,
Mr. Sessions, and Mr. Cornyn):
S. 1828. A bill to eliminate the substantial backlog of DNA samples
collected from crime scenes and convicted offenders, to improve and
expand the DNA testing capacity of Federal, State, and local crime
laboratories, to increase research and development of new DNA testing
technologies, to develop new training programs regarding the collection
and use of DNA evidence, and for other purposes; to the Committee on
the Judiciary.
Mr. KYL. Mr. President, I rise today to introduce the ``Advancing
Justice Through DNA Technology Act of 2003.'' This bill consists of the
President's DNA initiative, which will expand and improve DNA databases
used for criminal investigations and authorize additional funds to
clear the backlog of untested DNA evidence in the nation's crime labs.
This bill offers several advantages over another version of the
President's proposal that recently was introduced in the Senate.
Today's bill gives States greater leeway in the use of DNA grants,
removes arbitrary and unnecessary restrictions on the testing of
criminal suspects' DNA samples, authorizes additional funds to clear
the backlog of non-DNA forensics evidence, and--most importantly avoids
tying this critical program to unrelated and highly controversial anti-
death penalty legislation. I include in the record at the end of this
statement a news story that describes the nature of the state counsel
and other extraneous provisions that others have sought to attach to
the President's proposal.
The bill that I introduce today is an unencumbered--and unabridged--
version of the President's DNA initiative: the DNA Sexual Assault
Justice Act and the Rape Kits and DNA Evidence Backlog Elimination Act,
which authorize the Debbie Smith DNA Backlog Grant Program and provide
$755 million over five years to address the DNA backlog crisis in the
nation's crime labs.
Today's bill includes the following improvements over other
congressional versions of the President's proposal: First, this bill
also expands funding for non-DNA forensics funding. Section 211 of the
bill authorizes $100 million in new grant programs to eliminate ``the
backlog in the analysis of any area of forensic science evidence,
including firearms examination, latent prints, toxicology, controlled
substances, forensic pathology, questionable documents, and trace
evidence.''
Second, this bill increases the authorization for the Paul Coverdell
grant program, in recognition of the fact that this program never has
been funded at more than a small fraction of its authorization. Other
congressional versions of the President's DNA initiative only authorize
decreasing Coverdell funding in the coming years. This bill resets the
clock on the Coverdell program, authorizing 2004 funding at the level
for 2001, and subsequent years accordingly. This will allow sharp
increases in Coverdell funding in the coming years.
[[Page S14045]]
Third, today's bill allows states to test DNA samples from convicts
seeking exoneration against the national DNA database, in order to
determine if the convict has committed other rapes or murders. The
other congressional versions of the President's DNA initiative would
bar such testing; they effectively would give convicts a free roll of
the dice to challenge their current convictions while protecting them
against the risk that they will be linked to other crimes. There is no
reason why states should be prevented from solving such other crimes.
If DNA evidence is good enough to test a prisoner's conviction for the
crimes that we do know that he committed, it also is good enough to
establish the prisoner's involvement in crimes that we do not yet know
that he committed.
Fourth, this bill includes all Federal felony arrestees in the
federal DNA database. Other versions of this bill exclude arrestees and
place other unnecessary and arbitrary limits on the federal DNA index.
The federal government already maintains fingerprints for all federal
felony arrestees--there is no reason to treat DNA evidence differently.
Nor is there any reason to prevent states and the federal government
from solving other crimes committed by suspects arrested for a federal
felony offense.
The Department of Justice has expressly informed Congress of the
benefits of casting a wide net when including criminal suspects in the
federal DNA database. During a July 17 hearing on the President's DNA
initiative before the Crime Subcommittee of the House Judiciary
Committee, Sarah Hart, the Director of the National Institute of
Justice, testified that:
The efficacy of the DNA identification system depends
entirely on the profiles entered into it. Experience
demonstrates that broad collection and indexing of DNA
samples is critical to the effective use of the DNA
technology to solve rapes, murders, and other serious crimes.
The DNA sample that enables law enforcement to identify the
perpetrator of a rape, for example, often was not collected
in connection with an earlier rape. Rather, in a large
proportion of such cases, the sample was taken as a result of
the perpetrator's prior conviction for a non-violent crime
(such as a burglary, theft, or drug offense).
For example, in Virginia, which has authorized the
collection of DNA samples from all felons since 1991, a
review of cases in which offenders were linked to sex crimes
through DNA matching found that almost 40% of the offenders
had no prior convictions for sexual or violent offenses. Most
serious offenders do not confine themselves to violent
crimes. The experience of States with broad DNA collection
regimes demonstrates that DNA databases that include all
felons dramatically increase law enforcement's ability to
solve serious crimes.
Fifth, today's bill tolls the statute of limitations when a
perpetrator has been identified through DNA--including in rape cases.
Other congressional versions of the President's initiative inexplicably
exclude sexual-assault crimes from the initiative's DNA tolling
provision. There is no reason to do so. Indeed, it is in sexual-assault
cases that DNA evidence is most likely to identify a perpetrator. At
the July 17 hearing before the House Judiciary Committee's Crime
Subcommittee, the Department of Justice testified in favor of tolling
the statute of limitations to the full extent permitted by the
Constitution.
Sixth, this bill allows grants for DNA training and research to be
made to prosecutors' organizations, universities, and other private
entities. Competing bill versions limit such grants to state and local
governments, which is inconsistent with the President's DNA initiative.
Finally, the bill that I introduce today does not include the so-
called ``Innocence Protection Act'' (IPA), a controversial anti-death
penalty bill. The other congressional versions of the President's
initiative have incorporated the IPA as a third title to the
President's bill. At the July 17 hearing on the President's initiative,
the Department of Justice made very clear that it ``do[es] not believe
that legislation embodying the important proposals in the President's
DNA initiative should be joined to these controversial [IPA] measures,
which intrinsically are unrelated to DNA.''
In an October 27 letter to several members of Congress, the National
District Attorneys Association also voiced strong objections to the
capital-counsel provisions included in the IPA titles of the other
bills. The NDAA's letter stated:
Section 321 [of these bills] attempts to re-establish the
old 'death penalty resource centers.' As you no doubt recall,
Congress abolished funding for such centers because they
devolved into organizations dedicated solely to the abolition
of the death penalty and were staffed and controlled by those
dedicated to the disruption of the criminal justice system by
whatever means available, ethical or otherwise. Section 321
would cause a return to such tactics by removing the ability
for the state judiciary to appoint counsel in death penalty
cases and giving that authority to a self-appointed group of
anti-death penalty attorneys.
. . . NDAA strongly urges deletion of Section 321 from this
bill . . . .
Elimination of Section 321 . . . keeps the appointment and
control of capital defense counsel in the hands of state
court judges who are responsible for insuring that defendants
receive quality representation. With Section 321 there is no
oversight of those individuals selected to develop state
standards for capital defense counsel.
The IPA titles included in the other congressional versions of the
President's DNA initiative would authorize $500 million in Federal
funding for State public defenders in State capital cases. There is no
reason for Congress to finance the States' public-defender systems. The
States adequately fund these programs themselves--indeed, many have
enacted reforms and substantially increased funding for public
defenders in recent years. When the IPA originally was introduced in
2000, it was targeted at the State of Texas. In 2001, the Texas
legislature enacted reforms that completely overhauled the State's
public-defender system. Yet the IPA provisions of the other Senate bill
would declare Texas's reforms ``ineffective,'' and would force the
State to again replace its indigent-defense system. Such a mandate
makes no sense.
Moreover, there is no reason why States cannot or should not fund
their own indigent-defender systems. Basic principles of federalism
dictate that each level of government should finance its own
operations. Once States become accustomed to and budget for Federal
funds, they never are able to reject the money (or its conditions) in
the future. And Federal funding inevitably comes with increasing
Federal strings. In the long run, the States risk losing control over
their own public-defender programs. There is no reason to start down
this path.
The IPA proposals in the other congressional versions of the
President's initiative begin by placing a number of conditions on the
states' receipt of federal funds. Among these conditions is that states
transfer control over capital defense to an ``entity'' composed of
persons with ``demonstrated knowledge and expertise in capital
representation.'' (This means private defense lawyers; public
prosecutors likely would be barred by their jobs from serving or would
be conflicted out.) This new ``entity'' would be charged with: (1)
setting standards for capital-defense counsel; (2) deciding which
lawyers meet those standards; and (3) appointing lawyers from the
roster of qualifying attorneys to represent defendants in particular
cases.
Essentially, the bill's new ``entity'' would completely control
staffing of the defense in capital cases. From past experience with the
``capital resource centers,'' which were defunded by Congress in 1996,
we know that hard-core death penalty opponents tend to gravitate toward
these jobs, and will engage in litigation abuse when not supervised.
Congress should not require the states to repeat its own past mistakes.
It should not place anti-death penalty partisans in charge of public
representation of capital defendants.
The other congressional versions of the President's proposal also
include these additional highly problematic provisions:
They allow free DNA testing under very low standards. The competing
bills provide that DNA tests shall be available to any prisoners if a
negative test match would ``raise a reasonable probability that the
applicant did not commit the offense.'' This standard is too low. Not
all DNA evidence clearly came from the perpetrator of the crime or had
anything to do with the crime--for example, a blood spot near the crime
scene may or may not have come from the perpetrator. The ``reasonable
probability'' standard means a prisoner could secure a test even if,
despite a negative match, the other evidence would still show that the
prisoner more likely than not committed the crime.
[[Page S14046]]
The bill requires only a chance that the prisoner did not commit the
crime. Almost every prisoner with material to test will be able to meet
this standard. Reopening old cases forces victims and their families to
relive the ordeal of the crime. They should not be put through this
unless a negative test result could at least show more likely than not
that the prisoner did not commit the crime.
During the July 17 hearing before the House Crime Subcommittee, NIJ
Director Sarah Hart expressly warned congress of the consequences of
applying unduly low DNA testing standards. Director Hart testified:
[W]hile post-conviction DNA testing is necessary to correct
erroneous convictions imposed prior to the ready availability
of DNA technology, experience also points to the need to
ensure that postconviction DNA testing is appropriately
designed so as to benefit actually innocent persons, rather
than actually guilty criminals who wish to game the system or
retaliate against the victims of their crimes. Frequently,
the results of postconviction DNA testing sought by prisoners
confirm guilt, rather than establishing innocence. In such
cases, justice system resources are squandered and the system
has been misused to inflict further harm on the crime victim.
The recent experience of a local jurisdiction is instructive:
``Twice last month, DNA tests at the police crime lab in
St. Louis confirmed the guilt of convicted rapists. Two other
tests, last year and in 2001, also showed the right men were
behind bars for brutal rapes committed a decade or more
earlier.
`` [The St. Louis circuit attorney's] staff spent scores of
hours and thousands of dollars on those tests. She personally
counseled shaking, sobbing victims who were distraught to
learn that their traumas were being aired again.
`` One victim, she said, became suicidal and then vanished;
her family has not heard from her for months. Another, a deaf
elderly woman, grew so despondent that her son has not been
able to tell her the results of the DNA tests. Every time he
raises the issue, she squeezes her eyes shut so that she will
not be able to read his lips.
`` `She finally seemed to have some peace about the rape,
and now she's gone back to being angry,' the woman's son
said.
`` DNA tests confirmed that she was raped by Kenneth
Charron in 1985, when she was 59. To get that confirmation,
however, investigators had to collect a swab of saliva from
her so that they could analyze her DNA. They also had to
inquire about her sexual past, so they could be sure the
semen found in her home was not that of a consensual partner.
`` The questioning sent the woman into such depression that
she's now on medication. `None of this needed to happen,' her
son said. ''
Post-conviction DNA testing is not without its costs. It should be
allowed only in carefully measured circumstances.
Another problematic provision in the other congressional versions of
the President's DNA initiative would employ an unduly low standard to
authorize new trials for very old cases. This provision of these bills
is designed to allow new trials for prisoners who may have been
convicted 20 or more years ago. But it is very often impossible to
retry a case this old--key witnesses die or disappear or their memories
simply fade, and other evidence deteriorates or is lost. For many such
cases, ordering a new trial effectively means that the prisoner walks
free.
Congress should make sure that there is compelling evidence of
innocence before ordering new trials in old cases. Unfortunately, these
other bills would allow a new trial if test results simply ``establish
by a preponderance of the evidence that a new trial would result in an
acquittal.'' The key language here is ``result in acquittal.'' It means
a test result would not even have to indicate actual innocence; it need
only conflict with other evidence of guilt so as to undermine the
jury's ability to convict beyond a reasonable doubt. Prisoners could
win new trials--and go free--even if, despite the negative DNA match,
other evidence still shows the prisoner very likely committed the
crime. Current law, Federal Rule 33, uses the liberal ``result in
acquittal'' standard to allow new trials based on new evidence, but
only within three years of trial. It usually is not difficult to retry
a case within three years. But for older cases, Congress should insist
on a showing of actual innocence before ordering an often-impossible
new trial.
There are other problems with the IPA titles in the various
congressional versions of the President's DNA initiative. These titles
would vastly expand DNA testing by authorizing tests even for prisoners
who pleaded guilty. According to the Department of Justice, 90 percent
of Federal prisoners pleaded guilty. Extending free tests to these
prisoners literally expands the pool of potential test seekers by an
order of magnitude. A guilty plea also means that there is no trial
record, which makes it much more difficult to assess the potential
relevance of DNA-test evidence.
These other bills also impose broad and potentially costly new
evidence-retention requirements on the States--requirements that appear
to require States to preserve all potential DNA evidence in all cases,
indefinitely. And these bills also would give the newly created
capital-counsel ``entities'' an unwarranted degree of control over
defense attorneys' budgets. States traditionally have charged courts
and other responsible agencies with monitoring budgets for capital
representation. Prosecutors do not have unlimited budgets. There is no
reason to allow the capital-counsel entity to draw a blank check on
State treasuries.
There are other problems with the IPA titles of the competing bills.
Suffice it to say that these titles are unrelated to the President's
DNA initiative and both the Department of Justice and the NDAA oppose
adding them to the President's bill. We should not weigh down the
President's DNA initiative with the IPA. For this reason, my colleagues
and I today introduce the President's proposal--important, consensus
legislation that should be enacted by Congress without delay.
Mr. President, I ask unanimous consent that the text of the bill, the
following letter, and the following article all be printed in the
Record.
There being no objection, the additional material was ordered to be
printed in the Record, as follows:
S. 1828
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Advancing
Justice Through DNA Technology Act of 2003''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--RAPE KITS AND DNA EVIDENCE BACKLOG ELIMINATION ACT OF 2003
Sec. 101. Short title.
Sec. 102. Debbie Smith DNA Backlog Grant Program.
Sec. 103. Expansion of Combined DNA Index System.
Sec. 104. Tolling of statute of limitations.
Sec. 105. Legal assistance for victims of violence.
Sec. 106. Ensuring private laboratory assistance in eliminating DNA
backlog.
TITLE II--DNA SEXUAL ASSAULT JUSTICE ACT OF 2003
Sec. 201. Short title.
Sec. 202. Ensuring public crime laboratory compliance with Federal
standards.
Sec. 203. DNA training and education for law enforcement, correctional
personnel, and court officers.
Sec. 204. Sexual assault forensic exam program grants.
Sec. 205. DNA research and development.
Sec. 206. FBI DNA programs.
Sec. 207. DNA identification of missing persons.
Sec. 208. Enhanced criminal penalties for unauthorized disclosure or
use of DNA information.
Sec. 209. Tribal coalition grants.
Sec. 210. Expansion of Paul Coverdell Forensic Science Improvement
Grant Program.
Sec. 211. Creation of new Forensic Backlog Elimination Grant Program.
Sec. 212. Report to Congress.
TITLE I--RAPE KITS AND DNA EVIDENCE BACKLOG ELIMINATION ACT OF 2003
SEC. 101. SHORT TITLE.
This title may be cited as the ``Rape Kits and DNA Evidence
Backlog Elimination Act of 2003''.
SEC. 102. DEBBIE SMITH DNA BACKLOG GRANT PROGRAM.
(a) Designation of Program; Eligibility of Local
Governments as Grantees.--Section 2 of the DNA Analysis
Backlog Elimination Act of 2000 (42 U.S.C. 14135) is
amended--
(1) by amending the heading to read as follows:
``SEC. 2. THE DEBBIE SMITH DNA BACKLOG GRANT PROGRAM.'';
(2) in subsection (a)--
(A) in the matter preceding paragraph (1)--
(i) by inserting ``or units of local government'' after
``eligible States''; and
(ii) by inserting ``or unit of local government'' after
``State'';
(B) in paragraph (2), by inserting before the period at the
end the following: ``, including samples from rape kits,
samples from other sexual assault evidence, and samples taken
in cases without an identified suspect''; and
[[Page S14047]]
(C) in paragraph (3), by striking ``within the State'';
(3) in subsection (b)--
(A) in the matter preceding paragraph (1)--
(i) by inserting ``or unit of local government'' after
``State'' both places that term appears; and
(ii) by inserting ``, as required by the Attorney General''
after ``application shall'';
(B) in paragraph (1), by inserting ``or unit of local
government'' after ``State'';
(C) in paragraph (3), by inserting ``or unit of local
government'' after ``State'' the first place that term
appears;
(D) in paragraph (4)--
(i) by inserting ``or unit of local government'' after
``State''; and
(ii) by striking ``and'' at the end;
(E) in paragraph (5)--
(i) by inserting ``or unit of local government'' after
``State''; and
(ii) by striking the period at the end and inserting a
semicolon; and
(F) by adding at the end the following:
``(6) if submitted by a unit of local government, certify
that the unit of local government has taken, or is taking,
all necessary steps to ensure that it is eligible to include,
directly or through a State law enforcement agency, all
analyses of samples for which it has requested funding in the
Combined DNA Index System; and'';
(4) in subsection (d)--
(A) in paragraph (1)--
(i) in the matter preceding subparagraph (A), by striking
``The plan'' and inserting ``A plan pursuant to subsection
(b)(1)'';
(ii) in subparagraph (A), by striking ``within the State'';
and
(iii) in subparagraph (B), by striking ``within the
State''; and
(B) in paragraph (2)(A), by inserting ``and units of local
government'' after ``States'';
(5) in subsection (e)--
(A) in paragraph (1), by inserting ``or local government''
after ``State'' both places that term appears; and
(B) in paragraph (2), by inserting ``or unit of local
government'' after ``State'';
(6) in subsection (f), in the matter preceding paragraph
(1), by inserting ``or unit of local government'' after
``State'';
(7) in subsection (g)--
(A) in paragraph (1), by inserting ``or unit of local
government'' after ``State''; and
(B) in paragraph (2), by inserting ``or units of local
government'' after ``States''; and
(8) in subsection (h), by inserting ``or unit of local
government'' after ``State'' both places that term appears.
(b) Reauthorization and Expansion of Program.--Section 2 of
the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C.
14135) is amended--
(1) in subsection (a)--
(A) in paragraph (3), by inserting ``(1) or'' before
``(2)''; and
(B) by inserting at the end the following:
``(4) To collect DNA samples specified in paragraph (1).
``(5) To ensure that DNA testing and analysis of samples
from crimes, including sexual assault and other serious
violent crimes, are carried out in a timely manner.'';
(2) in subsection (b), as amended by this section, by
inserting at the end the following:
``(7) specify that portion of grant amounts that the State
or unit of local government shall use for the purpose
specified in subsection (a)(4).'';
(3) by amending subsection (c) to read as follows:
``(c) Formula for Distribution of Grants.--
``(1) In general.--The Attorney General shall distribute
grant amounts, and establish appropriate grant conditions
under this section, in conformity with a formula or formulas
that are designed to effectuate a distribution of funds among
eligible States and units of local government that--
``(A) maximizes the effective utilization of DNA technology
to solve crimes and protect public safety; and
``(B) allocates grants among eligible entities fairly and
efficiently to address areas where significant backlogs
exist, by considering--
``(i) the number of offender and casework samples awaiting
DNA analysis in a jurisdiction;
``(ii) the population in the jurisdiction; and
``(iii) the number of part I violent crimes in the
jurisdiction.
``(2) Minimum amount.--The Attorney General shall allocate
to each State not less than 0.50 percent of the total amount
appropriated in a fiscal year for grants under this section,
except that the United States Virgin Islands, American Samoa,
Guam, and the Northern Mariana Islands shall each be
allocated 0.125 percent of the total appropriation.
``(3) Limitation.--Grant amounts distributed under
paragraph (1) shall be awarded to conduct DNA analyses of
samples from casework or from victims of crime under
subsection (a)(2) in accordance with the following
limitations:
``(A) For fiscal year 2004, not less than 50 percent of the
grant amounts shall be awarded for purposes under subsection
(a)(2).
``(B) For fiscal year 2005 not less than 50 percent of the
grant amounts shall be awarded for purposes under subsection
(a)(2).
``(C) For fiscal year 2006, not less than 45 percent of the
grant amounts shall be awarded for purposes under subsection
(a)(2).
``(D) For fiscal year 2007, not less than 40 percent of the
grant amounts shall be awarded for purposes under subsection
(a)(2).
``(E) For fiscal year 2008, not less than 40 percent of the
grant amounts shall be awarded for purposes under subsection
(a)(2).'';
(4) in subsection (g)--
(A) in paragraph (1), by striking ``and'' at the end;
(B) in paragraph (2), by striking the period at the end and
inserting ``; and''; and
(C) by adding at the end the following:
``(3) a description of the priorities and plan for awarding
grants among eligible States and units of local government,
and how such plan will ensure the effective use of DNA
technology to solve crimes and protect public safety.'';
(5) in subsection (j), by striking paragraphs (1) and (2)
and inserting the following:
``(1) $151,000,000 for fiscal year 2004;
``(2) $151,000,000 for fiscal year 2005;
``(3) $151,000,000 for fiscal year 2006;
``(4) $151,000,000 for fiscal year 2007; and
``(5) $151,000,000 for fiscal year 2008.''; and
(6) by adding at the end the following:
``(k) Use of Funds for Accreditation and Audits.--The
Attorney General may distribute not more than 1 percent of
the grant amounts under subsection (j)--
``(1) to States or units of local government to defray the
costs incurred by laboratories operated by each such State or
unit of local government in preparing for accreditation or
reaccreditation;
``(2) in the form of additional grants to States, units of
local government, or nonprofit professional organizations of
persons actively involved in forensic science and nationally
recognized within the forensic science community--
``(A) to defray the costs of external audits of
laboratories operated by such State or unit of local
government, which are participating in the National DNA Index
System in order to ensure compliance with quality assurance
standards;
``(B) to assess compliance with any plans submitted to the
National Institute of Justice, which detail the use of funds
received by States or units of local government under this
Act; and
``(C) to support future capacity building efforts; and
``(3) in the form of additional grants to nonprofit
professional associations actively involved in forensic
science and nationally recognized within the forensic science
community to defray the costs of training persons who conduct
external audits of laboratories operated by States and units
of local government and which participate in the National DNA
Index System.
``(l) External Audits and Remedial Efforts.--In the event
that a laboratory operated by a State or unit of local
government which has received funds under this Act, has
undergone an external audit conducted in order to demonstrate
compliance with standards established by the Director of the
Federal Bureau of Investigation, and, as a result of such
audit, identifies measures to remedy deficiencies with
respect to the compliance by the laboratory with such
standards, the State or unit of local government shall
implement any such remediation as soon as practicable.''.
SEC. 103. EXPANSION OF COMBINED DNA INDEX SYSTEM.
(a) Inclusion of All DNA Samples From States.--Section
210304 of the DNA Identification Act of 1994 (42 U.S.C.
14132) is amended--
(1) in subsection (a)(1), by striking ``of persons
convicted of crimes;'' and inserting the following: ``of--
``(A) persons convicted of crimes; and
``(B) other persons whose DNA samples are collected under
applicable legal authorities;''; and
(2) by striking subsection (d).
(b) Felons Convicted of Federal Crimes.--Section 3(d) of
the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C.
14135a(d)) is amended to read as follows:
``(d) Qualifying Federal Offenses.--The offenses that shall
be treated for purposes of this section as qualifying Federal
offenses are the following offenses, as determined by the
Attorney General:
``(1) Any felony.
``(2) Any offense under chapter 109A of title 18, United
States Code.
``(3) Any crime of violence (as that term is defined in
section 16 of title 18, United States Code).
``(4) Any attempt or conspiracy to commit any of the
offenses in paragraphs (1) through (3).''.
(c) Military Offenses.--Section 1565 of title 10, United
States Code, is amended--
(1) by amending subsection (d) to read as follows:
``(d) Qualifying Military Offenses.--The offenses that
shall be treated for purposes of this section as qualifying
military offenses are the following offenses, as determined
by the Secretary of Defense, in consultation with the
Attorney General:
``(1) Any offense under the Uniform Code of Military
Justice for which a sentence of confinement for more than one
year may be imposed.
``(2) Any other offense under the Uniform Code of Military
Justice that is comparable to a qualifying Federal offense
(as determined under section 3(d) of the DNA Analysis Backlog
Elimination Act of 2000 (42 U.S.C. 14135a(d)).'';
(2) by striking subsection (e); and
(3) by redesignating subsection (f) as subsection (e).
(d) Collection of DNA Identification Information From
Persons Arrested For Qualifying Federal Offenses.--
[[Page S14048]]
(1) In general.--Section 3 of the DNA Analysis Backlog
Elimination Act of 2000 (42 U.S.C. 14135a) is amended--
(A) in subsection (a)--
(i) in paragraph (1), by striking ``The Director'', and
inserting the following:
``(A) The Attorney General shall collect a DNA sample from
each individual who is arrested for, or accused by
information or indictment of, a qualifying Federal offense
(as determined under subsection (d)). The Attorney General
may delegate this function within the Department of Justice
as provided in section 510 of title 28, United States Code,
and may also authorize and direct any other agency that makes
arrests for such offenses or supervises persons facing
charges of such offenses to carry out any function and
exercise any power of the Attorney General under this
section.
``(B) The Director''; and
(ii) in paragraphs (3) and (4), by striking ``Director of
the Bureau of Prisons'' each place it appears and inserting
``Attorney General, the Director of the Bureau of Prisons,'';
and
(B) in subsection (b), by striking ``Director of the Bureau
of Prisons'' and inserting ``Attorney General, the Director
of the Bureau of Prisons,''.
(2) Conditions of release.--
(A) Section 3142 amendments.--Subsections (b) and (c)(1)(A)
of section 3142 of title 18, United States Code, are each
amended by inserting ``and subject to the condition that the
person cooperate in the collection of a DNA sample from the
person if the collection of such a sample is authorized
pursuant to section 3 of the DNA Analysis Backlog Elimination
Act of 2000 (42 U.S.C. 14135a)'' after ``period of release''.
(B) Backlog elimination act amendment.--Section 7(d) of the
DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C.
14135c) is amended by inserting ``, or on release under
chapter 207 of title 18, United States Code,'' before ``is
authorized''.
SEC. 104. TOLLING OF STATUTE OF LIMITATIONS.
(a) In General.--Chapter 213 of title 18, United States
Code, is amended by adding at the end the following:
``Sec. 3297. Cases involving DNA evidence
``In a case in which DNA testing implicates a person in the
commission of a felony, no statute of limitations that would
otherwise preclude prosecution of the offense shall preclude
such prosecution until a period of time following the
implication of the person by DNA testing has elapsed that is
equal to the otherwise applicable limitation period.''.
(b) Clerical Amendment.--The table of sections for chapter
213 of title 18, United States Code, is amended by adding at
the end the following:
``3297. Cases involving DNA evidence.''.
(c) Application.--The amendments made by this section shall
apply to the prosecution of any offense committed before, on,
or after the date of the enactment of this section to the
full extent permitted by the Constitution.
SEC. 105. LEGAL ASSISTANCE FOR VICTIMS OF VIOLENCE.
Section 1201 of the Violence Against Women Act of 2000 (42
U.S.C. 3796gg-6) is amended--
(1) in subsection (a), by inserting ``dating violence,''
after ``domestic violence,'';
(2) in subsection (b)--
(A) by redesignating paragraphs (1) through (3) as
paragraphs (2) through (4), respectively;
(B) by inserting before paragraph (2), as redesignated by
subparagraph (A), the following:
``(1) Dating violence.--The term `dating violence' means
violence committed by a person who is or has been in a social
relationship of a romantic or intimate nature with the
victim. The existence of such a relationship shall be
determined based on a consideration of--
``(A) the length of the relationship;
``(B) the type of relationship; and
``(C) the frequency of interaction between the persons
involved in the relationship.''; and
(C) in paragraph (3), as redesignated by subparagraph (A),
by inserting ``dating violence,'' after ``domestic
violence,'';
(3) in subsection (c)--
(A) in paragraph (1)--
(i) by inserting ``, dating violence,'' after ``between
domestic violence''; and
(ii) by inserting ``dating violence,'' after ``victims of
domestic violence,'';
(B) in paragraph (2), by inserting ``dating violence,''
after ``domestic violence,''; and
(C) in paragraph (3), by inserting ``dating violence,''
after ``domestic violence,'';
(4) in subsection (d)--
(A) in paragraph (1), by inserting ``, dating violence,''
after ``domestic violence'';
(B) in paragraph (2), by inserting ``, dating violence,''
after ``domestic violence'';
(C) in paragraph (3), by inserting ``, dating violence,''
after ``domestic violence''; and
(D) in paragraph (4), by inserting ``dating violence,''
after ``domestic violence,'';
(5) in subsection (e), by inserting ``dating violence,''
after ``domestic violence,''; and
(6) in subsection (f)(2)(A), by inserting ``dating
violence,'' after ``domestic violence,''.
SEC. 106. ENSURING PRIVATE LABORATORY ASSISTANCE IN
ELIMINATING DNA BACKLOG.
Section 2(d)(3) of the DNA Analysis Backlog Elimination Act
of 2000 (42 U.S.C. 14135(d)(3)) is amended to read as
follows:
``(3) Use of vouchers or contracts for certain purposes.--
``(A) In general.--A grant for the purposes specified in
paragraph (1), (2), or (5) of subsection (a) may be made in
the form of a voucher or contract for laboratory services,
even if the laboratory makes a reasonable profit for the
services.
``(B) Redemption.--A voucher or contract under subparagraph
(A) may be redeemed at a laboratory operated on a non-profit
or for-profit basis by a private entity that satisfies
quality assurance standards and has been approved by the
Attorney General.
``(C) Payments.--The Attorney General may use amounts
authorized under subsection (j) to make payments to a
laboratory described under subparagraph (B).''.
TITLE II--DNA SEXUAL ASSAULT JUSTICE ACT OF 2003
SEC. 201. SHORT TITLE.
This title may be cited as the ``DNA Sexual Assault Justice
Act of 2003''.
SEC. 202. ENSURING PUBLIC CRIME LABORATORY COMPLIANCE WITH
FEDERAL STANDARDS.
Section 210304(b)(2) of the DNA Identification Act of 1994
(42 U.S.C. 14132(b)(2)), is amended to read as follows:
``(2) prepared by laboratories that--
``(A) not later than 2 years after the date of enactment of
the DNA Sexual Assault Justice Act of 2003, have been
accredited by a nonprofit professional association of persons
actively involved in forensic science that is nationally
recognized within the forensic science community; and
``(B) undergo external audits, not less than once every 2
years, that demonstrate compliance with standards established
by the Director of the Federal Bureau of Investigation;
and''.
SEC. 203. DNA TRAINING AND EDUCATION FOR LAW ENFORCEMENT,
CORRECTIONAL PERSONNEL, AND COURT OFFICERS.
(a) In General.--The Attorney General shall make grants to
provide training, technical assistance, education, and
information relating to the identification, collection,
preservation, analysis, and use of DNA samples and DNA
evidence by--
(1) law enforcement personnel, including police officers
and other first responders, evidence technicians,
investigators, and others who collect or examine evidence of
crime;
(2) court officers, including State and local prosecutors,
defense lawyers, and judges;
(3) forensic science professionals; and
(4) corrections personnel, including prison and jail
personnel, and probation, parole, and other officers involved
in supervision.
(b) Authorization of Appropriations.--There are authorized
to be appropriated $12,500,000 for each of the fiscal years
2004 through 2008 to carry out this section.
SEC. 204. SEXUAL ASSAULT FORENSIC EXAM PROGRAM GRANTS.
(a) In General.--The Attorney General shall make grants to
eligible entities to provide training, technical assistance,
education, equipment, and information relating to the
identification, collection, preservation, analysis, and use
of DNA samples and DNA evidence by medical personnel and
other personnel, including doctors, medical examiners,
coroners, nurses, victim service providers, and other
professionals involved in treating victims of sexual assault
and sexual assault examination programs, including SANE
(Sexual Assault Nurse Examiner), SAFE (Sexual Assault
Forensic Examiner), and SART (Sexual Assault Response Team).
(b) Eligible Entity.--For purposes of this section, the
term ``eligible entity'' includes--
(1) States;
(2) units of local government; and
(3) sexual assault examination programs, including--
(A) sexual assault nurse examiner (SANE) programs;
(B) sexual assault forensic examiner (SAFE) programs;
(C) sexual assault response team (SART) programs; and
(D) State sexual assault coalitions.
(c) Authorization of Appropriations.--There are authorized
to be appropriated $30,000,000 for each of the fiscal years
2004 through 2008 to carry out this section.
SEC. 205. DNA RESEARCH AND DEVELOPMENT.
(a) Improving DNA Technology.--The Attorney General shall
make grants for research and development to improve forensic
DNA technology, including increasing the identification
accuracy and efficiency of DNA analysis, decreasing time and
expense, and increasing portability.
(b) Demonstration Projects.--The Attorney General shall
conduct research through grants for demonstration projects
involving coordinated training and commitment of resources to
law enforcement agencies and key criminal justice
participants to demonstrate and evaluate the use of forensic
DNA technology in conjunction with other forensic tools. The
demonstration projects shall include scientific evaluation of
the public safety benefits, improvements to law enforcement
operations, and cost-effectiveness of increased collection
and use of DNA evidence.
(c) National Forensic Science Commission.--
(1) Appointment.--The Attorney General shall appoint a
National Forensic Science Commission (in this section
referred to as
[[Page S14049]]
the ``Commission''), composed of persons experienced in
criminal justice issues, including persons from the forensic
science and criminal justice communities, to carry out the
responsibilities under paragraph (2).
(2) Responsibilities.--The Commission shall--
(A) assess the present and future resource needs of the
forensic science community;
(B) make recommendations to the Attorney General for
maximizing the use of forensic technologies and techniques to
solve crimes and protect the public;
(C) identify potential scientific advances that may assist
law enforcement in using forensic technologies and techniques
to protect the public;
(D) make recommendations to the Attorney General for
programs that will increase the number of qualified forensic
scientists available to work in public crime laboratories;
(E) disseminate, through the National Institute of Justice,
best practices concerning the collection and analyses of
forensic evidence to help ensure quality and consistency in
the use of forensic technologies and techniques to solve
crimes and protect the public;
(F) examine additional issues pertaining to forensic
science as requested by the Attorney General;
(G) examine Federal, State, and local privacy protection
statutes, regulations, and practices relating to access to,
or use of, stored DNA samples or DNA analyses, to determine
whether such protections are sufficient;
(H) make specific recommendations to the Attorney General,
as necessary, to enhance the protections described in
subparagraph (G) to ensure--
(i) the appropriate use and dissemination of DNA
information;
(ii) the accuracy, security, and confidentiality of DNA
information;
(iii) the timely removal and destruction of obsolete,
expunged, or inaccurate DNA information; and
(iv) that any other necessary measures are taken to protect
privacy; and
(I) provide a forum for the exchange and dissemination of
ideas and information in furtherance of the objectives
described in subparagraphs (A) through (H).
(3) Personnel; procedures.--The Attorney General shall--
(A) designate the Chair of the Commission from among its
members;
(B) designate any necessary staff to assist in carrying out
the functions of the Commission; and
(C) establish procedures and guidelines for the operations
of the Commission.
(d) Authorization of Appropriations.--There are authorized
to be appropriated $15,000,000 for each of the fiscal years
2004 through 2008 to carry out this section.
SEC. 206. FBI DNA PROGRAMS.
(a) Authorization of Appropriations.--There are authorized
to be appropriated to the Federal Bureau of Investigation
$42,100,000 for each of the fiscal years 2004 through 2008 to
carry out the DNA programs and activities described under
subsection (b).
(b) Programs and Activities.--The Federal Bureau of
Investigation may use any amounts appropriated pursuant to
subsection (a) for--
(1) nuclear DNA analysis;
(2) mitochondrial DNA analysis;
(3) regional mitochondrial DNA laboratories;
(4) the Combined DNA Index System;
(5) the Federal Convicted Offender DNA Program; and
(6) DNA research and development.
SEC. 207. DNA IDENTIFICATION OF MISSING PERSONS.
(a) In General.--The Attorney General shall make grants to
promote the use of forensic DNA technology to identify
missing persons and unidentified human remains.
(b) Authorization of Appropriations.--There are authorized
to be appropriated $2,000,000 for each of the fiscal years
2004 through 2008 to carry out this section.
SEC. 208. ENHANCED CRIMINAL PENALTIES FOR UNAUTHORIZED
DISCLOSURE OR USE OF DNA INFORMATION.
Section 10(c) of the DNA Analysis Backlog Elimination Act
of 2000 (42 U.S.C. 14135e(c)) is amended to read as follows:
``(c) Criminal Penalty.--A person who knowingly discloses a
sample or result described in subsection (a) in any manner to
any person not authorized to receive it, or obtains or uses,
without authorization, such sample or result, shall be fined
not more than $100,000. Each instance of disclosure,
obtaining, or use shall constitute a separate offense under
this subsection.''.
SEC. 209. TRIBAL COALITION GRANTS.
Section 2001 of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3796gg) is amended by
adding at the end the following:
``(d) Tribal Coalition Grants.--
``(1) Purpose.--The Attorney General shall award grants to
tribal domestic violence and sexual assault coalitions for
purposes of--
``(A) increasing awareness of domestic violence and sexual
assault against Indian women;
``(B) enhancing the response to violence against Indian
women at the tribal, Federal, and State levels; and
``(C) identifying and providing technical assistance to
coalition membership and tribal communities to enhance access
to essential services to Indian women victimized by domestic
and sexual violence.
``(2) Grants to tribal coalitions.--The Attorney General
shall award grants under paragraph (1) to--
``(A) established nonprofit, nongovernmental tribal
coalitions addressing domestic violence and sexual assault
against Indian women; and
``(B) individuals or organizations that propose to
incorporate as nonprofit, nongovernmental tribal coalitions
to address domestic violence and sexual assault against
Indian women.
``(3) Eligibility for other grants.--Receipt of an award
under this subsection by tribal domestic violence and sexual
assault coalitions shall not preclude the coalition from
receiving additional grants under this title to carry out the
purposes described in subsection (b).''.
SEC. 210. EXPANSION OF PAUL COVERDELL FORENSIC SCIENCES
IMPROVEMENT GRANT PROGRAM.
(a) Forensic Backlog Elimination Grants.--Section 2804 of
the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3797m) is amended--
(1) in subsection (a)--
(A) by striking ``shall use the grant to carry out'' and
inserting ``shall use the grant to--
``(1) carry out'';
(B) by striking the period at the end and inserting a
semicolon; and
(C) by adding at the end the following:
``(2) eliminate a backlog in the analysis of forensic
science evidence, including firearms examination, latent
prints, toxicology, controlled substances, forensic
pathology, questionable documents, and trace evidence; and
``(3) train, assist, and employ forensic laboratory
personnel, as needed, to eliminate a forensic evidence
backlog.'';
(2) in subsection (b), by striking ``under this part'' and
inserting ``for the purpose set forth in subsection (a)(1)'';
and
(3) by adding at the end the following:
``(e) Defined Term.--As used in this section, the term
`forensic evidence backlog' means forensic evidence that--
``(1) has been stored in a laboratory, medical examiner's
office, or coroner's office; and
``(2) has not been subjected to all appropriate forensic
testing because of a lack of resources or personnel.''.
(b) External Audits.--Section 2802 of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3797k) is
amended--
(1) in paragraph (2), by striking the ``and'' at the end;
(2) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(4) a certification that a government entity exists and
an appropriate process is in place to conduct independent
external investigations into allegations of serious
negligence or misconduct substantially affecting the
integrity of the forensic results committed by employees or
contractors of any forensic laboratory system, medical
examiner's office, or coroner's office in the State that will
receive a portion of the grant amount.''.
(c) Three-Year Extension of Authorization of
Appropriations.--Section 1001(a) of the Omnibus Crime Control
and Safe Streets Act of 1968 (42 U.S.C. 3793(a)) is amended
by striking paragraph (24) and inserting the following:--
``(24) There are authorized to be appropriated to carry out
part BB of this Act, to remain available until expended--
``(A) $35,000,000 for fiscal year 2004;
``(B) $85,400,000 for fiscal year 2005;
``(C) $134,733,000 for fiscal year 2006;
``(D) $128,067,000 for fiscal year 2007;
``(E) $56,733,000 for fiscal year 2008; and
``(F) $42,067,000 for fiscal year 2009.''.
SEC. 211. CREATION OF NEW FORENSIC BACKLOG ELIMINATION GRANT
PROGRAM.
(a) Grants Authorized.--The Attorney General is authorized
to award grants to States, units of local government, and
tribal governments to eliminate forensic science backlogs.
(b) Purpose.--The purpose of the grant program established
under this section is to--
(1) eliminate the backlog in the analysis of any area of
forensic science evidence, including firearms examination,
latent prints, toxicology, controlled substances, forensic
pathology, questionable documents, and trace evidence; and
(2) train, assist, and employ forensic laboratory personnel
as needed to eliminate a forensic evidence backlog.
(c) Use of Funds.--
(1) Supplanting prohibited.--Grant funds made available to
applicants under this section shall be used to supplement and
not supplant other Federal or State funds.
(2) Administrative costs.--An applicant may use not more
than 5 percent of the funds received through grants awarded
under this section for administrative costs.
(d) Application.--
(1) In general.--A State, local government, or tribal
government desiring a grant under this section, shall submit
to the Attorney General an application in such form and
containing such information as the Attorney General may
require.
(2) Assurances and certification.--The application
submitted under paragraph (1) shall--
(A) provide assurances that the applicant has implemented,
or will implement not later than 120 days after the
submission date
[[Page S14050]]
of such application, a comprehensive plan for the expeditious
analysis of the forensic evidence currently backlogged; and
(B) certify that the forensic science laboratory--
(i) employs generally accepted practices and procedures;
and
(ii) is accredited by the Laboratory Accreditation Board of
the American Society of Crime Laboratory Directors or the
National Association of Medical Examiners or any other
nonprofit professional organization that may be recognized
within the forensic science community as competent to award
such accreditation.
(e) Defined Term.--As used in this section, the term
``forensic evidence backlog'' means--
(1) particular forensic evidence has been admitted to the
laboratory faster than it can be analyzed; or
(2) pertinent testing has been curtailed or not performed
due to lack of resources.
(f) Authorization of Appropriations.--There are authorized
to be appropriated to the Attorney General $20,000,000 for
each of the fiscal years 2005 through 2009 for grants under
this section.
SEC. 212. REPORT TO CONGRESS.
(a) In General.--Not later than 2 years after the date of
enactment of this Act, the Attorney General shall submit to
Congress a report on the implementation of this Act.
(b) Contents.--The report submitted under subsection (a)
shall include a description of--
(1) the progress made by Federal, State, and local entities
in--
(A) collecting and entering DNA samples from offenders
convicted of qualifying offenses for inclusion in the
Combined DNA Index System (referred to in this subsection as
``CODIS'');
(B) analyzing samples from crime scenes, including evidence
collected from sexual assaults and other serious violent
crimes, and entering such DNA analyses in CODIS; and
(C) increasing the capacity of forensic laboratories to
conduct DNA analyses;
(2) the priorities and plan for awarding grants among
eligible States and units of local government to ensure that
the purposes of this Act are carried out;
(3) the distribution of grant amounts under this Act among
eligible States and local governments, and whether the
distribution of such funds has served the purposes of the
Debbie Smith DNA Backlog Grant Program;
(4) grants awarded and the use of such grants by eligible
entities for DNA training and education programs for law
enforcement, correctional personnel, court officers, medical
personnel, victim service providers, and other personnel
authorized under sections 203 and 204;
(5) grants awarded and the use of such grants by eligible
entities to conduct DNA research and development programs to
improve forensic DNA technology, and implement demonstration
projects under section 205;
(6) the steps taken to establish the National Forensic
Science Commission, and the activities of the Commission
under section 205(c);
(7) the use of funds by the Federal Bureau of Investigation
under section 206;
(8) grants awarded and the use of such grants by eligible
entities to promote the use of forensic DNA technology to
identify missing persons and unidentified human remains under
section 207;
(9) grants awarded and the use of such grants by eligible
entities to eliminate forensic science backlogs under
sections 210 and 211; and
(10) any other matters considered relevant by the Attorney
General.
____
Criminal Justice Legal Foundation,
Sacramento, CA, November 5, 2003.
Hon. Jon Kyl,
U.S. Senate,
Washington, DC.
Dear Mr. Kyl: Recently, the Judiciary Committee approved
H.R. 3214, the ``Advancing Justice Through DNA Technology Act
of 2003.'' Although the goals of this bill are laudable, one
provision in particular is extremely ill-considered, and it
will actually operate to obstruct the system rather than
improve it. Section 321 should be deleted from the bill.
Section 321 authorizes grants ``for the purpose of
improving the quality of legal representation provided to
indigent defendants in State capital cases.'' That is
certainly a worthy purpose, but this bill will not achieve
it. Instead, it is a giant step backward in the direction of
the discredited ``resource centers'' which Congress defunded
years ago, after finding that they had become taxpayer-funded
nests of saboteurs.
A condition for the grant is that a state establish an
``effective system'' for capital representation. However,
``effective system'' is nonsensically defined as one that
removes the authority to appoint trial counsel from the trial
judge and gives it to a central authority composed of capital
defense lawyers.
We saw with the ``resource centers'' how these capital
representation organizations were invariably staffed by hard-
core, anti-death-penalty fanatics who saw it as their mission
to bring the system to a screeching halt. In an unusual
moment of candor, the head of one of the resource centers
wrote in a published article that it was the duty of the
lawyer to file motions just to ``make trouble,'' Lyon,
Defending the Capital Case: What Makes Death Different? 42
Mercer L. Rev. 695, 700 (1991). Such conduct is, of course,
clearly unethical. In 1996, Congress finally woke up to what
was being done with taxpayer money and defunded the resource
centers.
Appointment authority is one of the few checks available
against unethical conduct by defense lawyers. The attorney
discipline system is toothless. The prosecution cannot appeal
on defense misconduct, the way the defense does on prosecutor
misconduct. The trial judge's refusal to appoint lawyers who
are notorious for obstructionism and other unethical behavior
is the most effective deterrent. To remove the appointment
authority to an entity full of people who actually encourage
such misconduct is a recipe for chaos.
Congress has not removed the appointment authority from
federal district judges, for good reason. A number of states
have recently implemented improvements to their capital
representation systems. These reforms have taken different
shapes in different states, as is appropriate for a federal
system. Instead of evaluating the different approaches to see
which one works best in the real world, section 321 would
declare most, if not all, of them ``ineffective,'' and deny
defense grants to states that have chosen a different and
possibly better path. Section 326 effectively makes a state
ineligible for the prosecution grants if it chooses not to
change its appointment system to qualify for the defense
grants.
Congress should not mandate a single solution without the
most careful consideration of the reforms the states have
already enacted. The problem of effective counsel is a
complex one. It requires more study and more debate before
Congress endorses a particular solution. Section 321 of H.R.
3214 is half-baked, and it should be deleted.
Sincerely,
Kent S. Scheidegger,
Legal Director.
____
[From National Review Online, Oct. 29, 2003]
Protection Racket--Congress Prepares To Fund the Anti-Death-Penalty
Lobby
(By Ramesh Ponnuru)
Why is a Republican Congress considering a bill to fund
anti-death-penalty activists? A bill that could result in
murderers going free? A bill that was initially introduced to
hurt George W. Bush? Beats me. But that's exactly what
Congress is doing.
In early 2000, Democrats were portraying George W. Bush's
Texas as a third-world hellhole where the water was dirty,
the churches were filled with guns, and the streets ran red
with blood of unlucky defendants. A few anecdotes in which
public defenders really had been lax in capital murder cases
were extrapolated into a critique of law enforcement in the
state. At around this time, Senator Patrick Leahy of Vermont
and Representative William Delahunt of Massachusetts, both
Democrats, introduced the ``Innocence Protection Act.''
Supposedly, the bill was going to keep innocents from getting
put on death row by, among other things, providing for better
legal defenses for accused capital murderers.
In a modified form, the bill has been made part of the
``Advancing Justice Through DNA Technology Act of 2003.''
Sponsors of the bill include Orrin Hatch and James
Sensenbrenner, the chairmen of the House and Senate judiciary
committees. The House Judiciary Committee voted for the bill
28-1. Conservative Jeff Flake was the only dissenter.
There are two major problems with the bill. First, its low
standard for requiring new trials makes it likely that
murderers will go free. The bill says that federal prisoners
have a right to a new trial if a DNA test ``establish[es] by
a preponderance of evidence that a new trial would result in
acquittal.'' This standard is very different from a
requirement that the DNA test establish that the prisoner
probably did not commit the crime. DNA at a murder scene can,
of course, come from a variety of sources. It may be that the
jury in the original trial, faced with a negative DNA result,
would have found the defendant guilty anyway based on other
evidence. But witnesses die and evidence deteriorates. Wait
long enough to get a DNA test, and a new trial may be
unlikely to yield a conviction even if the defendant actually
committed the crime. The ``result in acquittal'' standard is
used to allow new trials based on new evidence--but only
within three years of the original trial. This bill has no
such time limit. The result is not a reduced sentence, but
the defendant's walking.
The second problem is that the bill bribes states to give
up control of their public-defender systems. Essentially, the
bill would funnel taxpayer dollars to the ``capital resource
centers'' that Congress defunded in 1996, having found
that they frequently abused the appeals process. (See
pages 53-57 of this report for a long list of examples of
such abuses.) Abuses would be likely since state courts,
and other branches of state and local government, would no
longer have supervisory authority over publicly funded
defense counsel. Indeed, supporters of the Innocence
Protection Act have been positively enthusiastic about one
form of abuse. When Leahy ran the Judiciary Committee last
year, it issued a report that said that capital resource
centers ``may legitimately assert a large number of
claims'' based on a ``reversal of existing law.'' In other
words, it's legitimate for tax-funded public defenders to
file a ``large number of claims'' that are precluded by
current law.
Is federal intervention necessary? States have been busy
reforming their own capital-
[[Page S14051]]
defense systems. But the same Leahy report mentioned earlier
identified five cases in which ineffective counsel had led
innocent people to be sentenced to death. But as the
dissenting Republican report pointed out, the five cases
Leahy discussed established no such thing. In one of the
cases, the defendent was never actually sentenced to death.
In three of the cases, it is not at all clear that the
defendant was innocent. (Prosecutors declined to retry them
because evidence had deteriorated. In one case, for example,
the building in which the murder took place had been
demolished.) The cases are marked more, in any case, by
prosecutorial misconduct than by sloppy defenses.
That's true, by the way, of cases in which actually
innocent people have been put on death row. It has generally
been because prosecutors relied too much on unreliable
evidence, such as the testimony of jailhouse informants, or
because police and prosecutors acted in grossly improper
ways. (Say hello to our friends in Cook County.) When
prosecutors suppress evidence, the most competent defense
attorneys will be at a disadvantage. The Innocence Protection
Act's capital-defense provisions will not ameliorate that
problem. But then, it's more about funneling tax money to
opponents of the death penalty than springing truly innocent
people from death row.
``What's disgusting is we're actually wasting time fighting
this in a Republican Congress,'' says one Republican Senate
staffer.
______
By Mr. CORNYN:
S.J. Res. 23. A joint resolution proposing an amendment to the
Constitution of the United States providing for the event that one-
fourth of the members of either the House of Representatives or the
Senate are killed or incapacitated; to the Committee on the Judiciary
S.J. Res. 23
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That the
following article is proposed as an amendment to the
Constitution of the United States, which shall be valid to
all intents and purposes as part of the Constitution when
ratified by the legislatures of three-fourths of the several
States:
``Article --
``The Congress may by law provide for the case of death or
inability of members of the House of Representatives, and the
case of inability of members of the Senate, in the event that
one-fourth of either House are killed or incapacitated,
declaring who shall serve until the disability is removed, or
a new member is elected. Any procedures established pursuant
to such a law shall expire not later than 120 days after the
death or inability of one-fourth of the House of
Representatives or the Senate, but may be extended for
additional 120-day periods if one-fourth of either the House
of Representatives or the Senate remains vacant or occupied
by members unable to serve.''.
____________________