[Congressional Record Volume 151, Number 26 (Tuesday, March 8, 2005)]
[Senate]
[Pages S2200-S2216]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 256, which the clerk will
report.
The legislative clerk read as follows:
A bill (S. 256) to amend title 11 of the United States
Code, and for other purposes.
Pending:
Dorgan/Durbin amendment No. 45, to establish a special
committee of the Senate to investigate the awarding and
carrying out of contracts to conduct activities in
Afghanistan and Iraq and to fight the war on terrorism.
Pryor amendment No. 40, to amend the Fair Credit Reporting
Act to prohibit the use of any information in any consumer
report by any credit card issuer that is unrelated to the
transactions and experience of the card issuer with the
consumer to increase the annual percentage rate applicable to
credit extended to the consumer.
Reid (for Baucus) amendment No. 50, to amend section
524(g)(1) of title 11, United States Code, to predicate the
discharge of debts in bankruptcy by an vermiculite mining
company meeting certain criteria on the establishment of a
health care trust fund for certain individuals suffering from
an asbestos related disease.
Dodd amendment No. 52, to prohibit extensions of credit to
underage consumers.
Dodd amendment No. 53, to require prior notice of rate
increases.
Kennedy (for Leahy/Sarbanes) amendment No. 83, to modify
the definition of disinterested person in the Bankruptcy
Code.
Harkin amendment No. 66, to increase the accrual period for
the employee wage priority in bankruptcy.
Dodd amendment No. 67, to modify the bill to protect
families.
Kennedy amendment No. 68, to provide a maximum amount for a
homestead exemption under State law.
Kennedy amendment No. 69, to amend the definition of
current monthly income.
Kennedy amendment No. 70, to exempt debtors whose financial
problems were caused by failure to receive alimony or child
support, or both, from means testing.
Kennedy amendment No. 72, to ensure that families below
median income are not subjected to means test requirements.
Kennedy amendment No. 71, to strike the provision relating
to the presumption of luxury goods.
Kennedy amendment No. 119, to amend section 502(b) of title
11, United States Code, to limit usurious claims in
bankruptcy.
Akaka amendment No. 105, to limit claims in bankruptcy by
certain unsecured creditors.
Feingold amendment No. 87, to amend section 104 of title
11, United States Code, to include certain provisions in the
triennial inflation adjustment of dollar amounts.
Feingold amendment No. 88, to amend the plan filing and
confirmation deadlines.
Feingold amendment No. 89, to strike certain small business
related bankruptcy provisions in the bill.
Feingold amendment No. 90, to amend the provision relating
to fair notice given to creditors.
Feingold amendment No. 91, to amend section 303 of title
11, United States Code, with respect to the sealing and
expungement of court records relating to fraudulent
involuntary bankruptcy petitions.
Feingold amendment No. 92, to amend the credit counseling
provision.
Feingold amendment No. 93, to modify the disclosure
requirements for debt relief agencies providing bankruptcy
assistance.
Feingold amendment No. 94, to clarify the application of
the term disposable income.
Feingold amendment No. 95, to amend the provisions relating
to the discharge of taxes under chapter 13.
Feingold amendment No. 96, to amend the provisions relating
to chapter 13 plans to have a 5-year duration in certain
cases and to amend the definition of disposable income for
purposes of chapter 13.
Feingold amendment No. 97, to amend the provisions relating
to chapter 13 plans to have a 5-year duration in certain
cases and to amend the definition of disposable income for
purposes of chapter 13.
Feingold amendment No. 98, to modify the disclosure
requirements for debt relief agencies providing bankruptcy
assistance.
Feingold amendment No. 99, to provide no bankruptcy
protection for insolvent political committees.
Feingold amendment No. 100, to provide authority for a
court to order disgorgement or other remedies relating to an
agreement that is not enforceable.
Feingold amendment No. 101, to amend the definition of
small business debtor.
Talent amendment No. 121, to deter corporate fraud and
prevent the abuse of State self-settled trust law.
Schumer amendment No. 129 (to amendment No. 121), to limit
the exemption for asset protection trusts.
Durbin amendment No. 110, to clarify that the means test
does not apply to debtors below median income.
Durbin amendment No. 111, to protect veterans and members
of the armed forces on active duty or performing homeland
security activities from means testing in bankruptcy.
Durbin amendment No. 112, to protect disabled veterans from
means testing in bankruptcy under certain circumstances.
The ACTING PRESIDENT pro tempore. The Senator from Massachusetts.
Mr. KENNEDY. Madam President, I understand that at 10:15, the Senator
from New York is to be recognized to offer an amendment?
The ACTING PRESIDENT pro tempore. That is correct.
Mr. KENNEDY. Madam President, this bankruptcy bill is mean-spirited
and unfair. In anything like its present form, it should and will be an
embarrassment to anyone who votes for it. It is a bonanza for the
credit card companies, which made $30 billion in profits
[[Page S2201]]
last year, and a nightmare for the poorest of the poor and the weakest
of the weak.
It favors the credit card companies, the giant banks, and the big car
loan companies at every turn. It favors the worst of the credit
industry--the interest rate gougers, the payday lenders, and the
abusive collection agencies. It hurts real people who lose their
savings because of a medical crisis or lose their jobs because of
outsourcing or suffer major loss of income because they were called up
for duty in Iraq or Afghanistan.
It protects corporate interests at the expense of the needs of real
people. It does absolutely nothing about the glaring abuses of the
bankruptcy system by the executives of giant companies such as Enron,
WorldCom, and Polaroid, who lined their own pockets but left thousands
of employees and retirees out in the cold.
It favors companies like MBNA, a top credit card issuer, with over
$80 billion in loans, which has contributed $7 million to Federal
candidates, a half a million dollars to President Bush alone, and spent
over $20 million in lobbying, since 1997, when their lobbyists wrote
this bill.
On the other side are people like special ed teacher Fatemeh Hosseini
on the front page of Sunday's Washington Post. She fell on hard times
when her husband left her and their three children. After her credit
card debt reached $25,000, she stopped using the cards and took a
second job to try to pay down that debt. She paid $2,000 a month but
was hit with very high interest rates, which were raised even higher
because of missed payments, heavy late fees, and over-limit penalties.
She made no new purchases, but by last June her $25,000 debt had
nearly doubled to almost $50,000. The longer she tried to pay what her
statements told her were her minimum payments, the more her debt went
up. When all of her salary was going for payments, she had no choice:
she was forced into bankruptcy, in the hope of getting the ``fresh
start'' the Nation has long provided to its working people when they
hit bottom.
This bill says to companies like MBNA: We'll help you scare that
teacher out of going into bankruptcy by making the bankruptcy process
expensive and burdensome to people like her. If we can't scare her
away, we will help you squeeze your high interest rates out of her for
a few years longer, even though she can't possibly pay off the amount
she owes. We will take sides with companies like you and against people
like her.
That is what this bill says. We all know that is wrong. How could the
Senate possibly do something so immoral and unreasonable and unfair to
our constituents when they are most in need of our help? Where are the
vaunted values our colleagues talk about so much? Why didn't the
Judiciary Committee do something about this travesty before it reached
the floor? Why haven't we fixed it on the floor after more than a week
of debate?
This bill was bulldozed through the committee on the pretense that we
should not deal with its serious problems there but should wait until
it reached the full Senate for serious negotiations and basic
improvements. We were assured that there would be good-faith
discussions and compromises and that all reasonable amendments would be
given fair consideration.
But now there has been no good faith at all--no meaningful
discussions, no negotiation, no real consideration of any of the very
reasonable amendments that have been proposed to give this bill some
shred of balance and fairness. On the contrary, the Republican
leadership has invoked the strictest possible party discipline. When
individual Republicans say they want to support or offer constructive
amendments, they are ordered not to do so. Even when a Republican
identifies a serious gap in the bill, such as the very basic
jurisdiction outrage pointed out by Senator Cornyn, an outrage that has
prejudiced workers and retirees in almost every State, the Republican
leadership said no and refused to let the amendment be called up.
The excuse for this bad faith and breach of promise is itself
bizarre. The Republican leaders say they cannot upset the delicate
compromise reached two Congresses ago, but the only real compromise was
the one that had the Schumer amendment in it, and this year's bill
doesn't have that amendment in it. In committee Senator Schumer
discussed his amendment, but I didn't see the other side jumping up to
adopt it in order to restore and preserve the so-called compromise. The
floor leaders have not indicated that they plan to accept this
amendment to restore and preserve the supposed compromise.
Let's be clear--any pretense of protecting a previous compromise
disappeared when the bill's sponsors unilaterally took the Schumer
amendment out of the bill before introducing it this year. So there is
no compromise before us in the first place. What's more, even the 2001
bill is now totally obsolete.
A great deal has happened in the past 4 years that helps us
understand the real issues in this bill and shows that abuse of the
system by consumers is not the real problem. We have now felt the full
impact of the Bush economic decline, the broad record levels of
sustained unemployment.
We have seen an explosion of medical costs, prescription drug costs,
and health insurance costs. We have seen job after job eliminated or
downgraded or outsourced.
A half million guardsmen and reservists have been called to active
duty in Afghanistan or Iraq, leaving their families and their jobs and
their small businesses behind to suffer the economic consequences, but
this Senate said no to the Durbin amendment.
We have seen the enormous harm caused to employees and retirees by
corporate mismanagement and fraud at major companies like Enron and
WorldCom and Polaroid, which abused the bankruptcy laws to avoid their
obligation to their own loyal workers. We have seen credit card rates
go higher and higher and higher, as high as 30 percent or more, plus
fees and penalties and charges, raising credit card profits by another
$10 billion, even as general interest rates remain low.
We have seen the credit card companies use a self-help remedy for the
problems they create by their own indiscriminate and predatory
marketing practices. They charge still higher risk-based rates to the
very same people who can't even afford the lower bait-and-switch rates.
We now know a lot more about the abuse of bankruptcy this bill was
supposedly designed to address. Four years ago we were told we were a
nation of bankruptcy abusers. But now, thanks to the careful study of
actual bankruptcy case files, we know the truth. We know that 50
percent of the families who go bankrupt have suffered from serious
medical problems and have exhausted their savings. Most of those
families had paid for health insurance, but it still left them with no
financial protection from serious illness or accidents.
If the family is impacted by cancer, you know right at the outset,
even if they have health insurance, they are going to have a $35,000
bill. If it is the heart or stroke, it may be $20,000. If they have a
child, spina bifida, autism, other kinds of serious children's
diseases, it is going to be $15,000 to $20,000. We know that right at
the start. And in too many instances, that is just enough to throw
hard-working Americans into the bankruptcy system and the harsh
provisions of this legislation. Most of these families tried in every
possible way to avoid bankruptcy for years. They gave up food and
medicine and utilities and other necessities of life and even
transferred their elderly parents into less adequate nursing homes in
order to try and avoid bankruptcy. But facts like these don't bother
the sponsors of this bill. They just make it up as they go along.
In the past week, for example, some of us offered amendments that
would exempt people from the burdensome procedures in this bill if
their finances were devastated by medical problems or because they were
called up for military duty, and they were voted down. Instead the
bill's sponsors introduced and adopted a devious amendment that they
said would do what our amendment did. But, of course, it did nothing of
the kind. It simply added some words about medical costs and military
callups in a way that did not change the real substance of the
committee's bill.
The sponsors also said our amendments exempting those below the
median income from the means test were
[[Page S2202]]
unnecessary because low-income filers were already exempt. If they
really mean what they say about no means testing for people below the
median income, then they should not be refusing to accept our amendment
which makes that exemption absolutely clear.
Another Democratic amendment would have placed a generous limit of 30
percent on the interest rates any credit card company could charge. It
very carefully stated that it would not change the status quo in States
which already had lower limits. That didn't stop the bill's supporters
from claiming that the bill would be an intrusion on States rights
because it would lift the limit in States with a lower limit.
And perhaps the most outrageous claim of all, one which I thought was
dead and buried after it was dragged out in 2001, was dragged out
again--a big blue chart and all--and further inflated in their debate.
The sponsors repeated the old chestnut that every American family is
paying $400 a year in a hidden bankruptcy tax for abuses that this bill
would stop. Only now they say this mysterious tax has risen to $550 per
person per year.
How is the original $400 number calculated? The debts discharged from
all consumer bankruptcies each year are about $40 billion. There are
100 million families in the United States. Therefore, those consumer
bankruptcies must be costing each family $400 per family. But this
phony math assumes that every dollar discharged in bankruptcy, 100
percent, could have been collected in full, if not for the massive
abuse of the system by every consumer who goes bankrupt.
It assumes that the credit card companies and payday lenders and
other lenders who collect this debt under the bill would somehow
distribute it to all 100 million American families instead of keeping
it for themselves. Obviously, neither of these assumptions is true.
Even the bill's supporters have long ago conceded that the maximum
conceivable amount recoverable from the consumer bankruptcies is about
10 percent of the total. Other estimates conclude that the real number
is a small fraction of that.
We don't have to guess what a responsible lender's loss from
bankruptcy abuse might be. The lead-off pro-bill witness at our hearing
on the bill was the head of the Wisconsin community credit union,
testifying for the national credit union lobby. He told us in the last
9 years his credit union has had an average of 10 bankruptcies a year
from 11,000 members. He estimated that the 9-year loss from abusive
cases was $15,000 to $75,000, with the higher figure based on an
unlikely assumption of 15 percent abuse. His credit union's loss from
possible abuse spread across its entire membership was 15 to 74 cents a
year per member--not per every family in his county or state, but just
his members. Yes, a real 15 cents instead of the mythical $400 dollars
we have heard about for years on this floor.
Why is that lender's loss from abuse so low? Because that credit
union cares about its members, who are also its owners. It gives them a
credit level appropriate to their finances, and does not promote
across-the-board increases in credit limits. It routinely monitors
credit card debt for signs of trouble. When members hit hard times, the
credit union does not pounce on them. It looks for ways to help them
out. In short, it is a careful and responsible lender, not a predatory
lender.
Hello? Could this tell us something about the real problem here?
Perhaps the credit card companies who are really pushing this bill
should think again about having solicitation desks every fifty feet in
the airport, offering gifts to anyone who signs up for a card. Perhaps
they should think twice about offering multiple cards to young college
students. Perhaps they should not encourage people to raise their card
limits recklessly or send them pre-printed checks against their
accounts in junk mailings. Perhaps they should not send monthly
statements urging their customers to pay only the monthly minimum and
pile up their debt.
This bill does nothing to prevent the enticements that the credit
card companies use to run up their profits. It does nothing to prevent
the real abuses of the system by those who use unlimited homestead
exemptions or ``protective'' trusts to hide tens of millions of dollars
from the bankruptcy process.
We still have time for common sense amendments on all of these
issues, but unless there is a change in direction, Republican party
discipline will be invoked to defeat them.
In fact, the present bankruptcy system has an effective way of
dealing with real abusers. Bankruptcy judges can and do deny the
petitions of those who have defrauded or abused the bankruptcy process.
The corporate sponsors of this bill know that, but their real
motivation is only partly to squeeze millions more dollars from the
people who do get into the bankruptcy system.
The more insidious purpose of this bill is to frighten people away
from the system altogether, by making it so burdensome and expensive,
that they delay filing for bankruptcy or never file. That way, the
predatory lenders can continue to collect excessive interest and fees
and penalties month after month from people who cannot afford to pay
them.
What this bill does to catch the very small number of potential
abusers--most of whom can be caught and screened out under the existing
system--is to impose huge new paperwork and filing and counseling and
other barriers on all those who seek to enter the system, whether they
are above or below the median income level, and whether or not there is
the slightest indication that they are trying to game the system.
Why else would the bill place such strict and intolerable personal
liability on the bankruptcy lawyer for mistakes made in the detailed
information provided by the client? In Boston and throughout the
country, pro-bono lawyers from leading firms now lend a hand with
bankruptcy filings to people down on their luck. The sponsors know that
if this bill passes, those firms will not let their lawyers do that
public interest work, because the risk will be too high.
There is so much wrong with this bill that we must take the time to
get it right. That is why we must have a serious discussion and
negotiation and amendment process.
That is why we must defeat tomorrow's cloture vote and continue to
seek a bill that is not an embarrassment to the Senate and the
fundamental principle of fairness and simple justice for all. It's
wrong, deeply wrong, for the Senate to rubber-stamp the greed of the
credit card industry.
In a few moments, the Senator from New York will be recognized. I
wanted to add a word of support for his amendment. His amendment is not
about abortion. It is about violence. Those who promote the culture of
life should not be encouraging acts of violence against any members of
our society. There is no legitimate reason to oppose this amendment.
Those who break the law through violence and intimidation should not
have bankruptcy as a shield.
Finally, in a vote later this afternoon, the Senate will declare its
true loyalties. Do we stand with low- and middle-income families who
fall on hard times, or do we stand with the credit card companies
looking for higher and higher profits at any cost? If we are true to
our values, we will stand with America's families and defeat this bill
because above all else, America stands for freedom and fairness and
opportunity. There is nothing fair about a single parent struggling to
make ends meet only to be gouged by credit card companies with double-
digit rates. There is no freedom in falling ill with cancer and facing
a mountain of medical bills only to be hounded by credit card companies
to pay them first.
And what is fair when an average American who has done everything
right still has to go alone into bankruptcy court and stand up against
the big credit card companies and all their might and try to make a
fresh start?
I am reminded of the words of Leviticus in the 25th chapter which
reads: If one of your brethren becomes poor and falls into poverty
among you, then you shall help him, like a stranger or a sojourner,
that he may live with you. Take no usury or interest from him, but fear
your God that your brother may live with you. You shall not lend him
your money for usury nor lend him your food at a profit.
One glance at the story of Fatemeh Hosseini shows that even when you
try your hardest to repay your debts, you are met by the cold, cruel
world of the credit card companies. With our vote
[[Page S2203]]
this afternoon, we have an opportunity to live up to the words of
Leviticus and our basic values as Americans and vote against this bill.
The PRESIDING OFFICER (Mr. Vitter). The Senator from Illinois is
recognized.
Mr. DURBIN. Mr. President, I thank the Senator from Massachusetts for
his leadership on this legislation. The bill we are considering today,
S. 256, is the bankruptcy reform bill. For American families who have
been absolutely devastated by medical bills, by loss of jobs from
outsourcing of jobs overseas, by family circumstances beyond their
control, this bill makes it more difficult to go to bankruptcy court to
put whatever they have on the table and to try to start anew. It was
written by the financial industry, by credit card companies, and big
banks in an effort to make certain that people in debt never get out of
debt. They want to make certain that debt will hound you and trail you
for a lifetime.
When Senator Kennedy offers an amendment and says should we not at
least say to people who have been devastated by a medical crisis in
their family and go through bankruptcy that they will have a roof over
their heads, that we will protect their home for $150,000 worth of
value, the Republicans on this side of the aisle said no. They should
put that home up, lose it if necessary, if they want to file for
bankruptcy.
I offered an amendment that said what about the Guard and Reserve
units, men and women who are serving overseas leaving behind businesses
that go bankrupt? Should we not give them some consideration in this
bill? Should not the harshest aspects of this bill not apply to men and
women in uniform serving our country? The Republican side of the aisle
said no; apply the law as harshly as possible to these soldiers as you
would to everyone else.
Time and again, as we have offered amendments to try to stand up for
those who were struggling in America to get by in a tough economy, in
difficult times, facing family disasters, the Republican side of the
aisle said it is more important that the credit card companies get
another dollar from those families. It is more important that the banks
prevail. Even if the loans they offered in the first place are illegal,
we have to stand by the credit industry.
The credit industry will win this battle. American families, American
soldiers, and those struggling with medical bills will be the losers.
I hope before this bill is completed that a few basic amendments that
show common decency and common sense will prevail.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the hour of 10:15
a.m. having arrived, the Senate will proceed to the consideration of
amendment No. 47 to be offered by the Senator from New York. The time
until 12:15 p.m. will be equally divided for debate.
Does the Senator offer the amendment?
amendment no. 47
Mr. SCHUMER. Mr. President, I offer the amendment, and I ask
unanimous consent that Senator Feinstein be added as a cosponsor to the
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New York [Mr. Schumer], for himself, Mr.
Reid, Mr. Leahy, Mrs. Murray, and Mrs. Feinstein, proposes an
amendment numbered 47.
Mr. SCHUMER. Mr. President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To prohibit the discharge, in bankruptcy, of a debt resulting
from the debtor's unlawful interference with the provision of lawful
goods or services or damage to property used to provide lawful goods or
services)
On page 205, between lines 16 and 17, insert the following:
SEC. 332. NONDISCHARGEABILITY OF DEBTS INCURRED THROUGH
VIOLATIONS OF LAWS RELATING TO THE PROVISION OF
LAWFUL GOODS AND SERVICES.
Section 523(a) of title 11, United States Code, as amended
by this Act, is further amended--
(1) in paragraph (18), by striking ``or'' at the end;
(2) in paragraph (19), by striking the period at the end
and inserting ``; or''; and
(3) by inserting after paragraph (19) the following:
``(20) that results from any judgment, order, consent
order, or decree entered in any Federal or State court, or
contained in any settlement agreement entered into by the
debtor, including any court ordered damages, fine, penalty,
citation, or attorney fee or cost owed by the debtor, arising
from--
``(A) an action alleging the violation of any Federal,
State, or local statute, including but not limited to a
violation of section 247 or 248 of title 18, that results
from the debtor's--
``(i) harassment of, intimidation of, interference with,
obstruction of, injury to, threat to, or violence against,
any person--
``(I) because that person provides, or has provided, lawful
goods or services;
``(II) because that person is, or has been, obtaining
lawful goods or services; or
``(III) to deter that person, any other person, or a class
of persons, from obtaining or providing lawful goods or
services; or
``(ii) damage to, or destruction of, property of a facility
providing lawful goods or services; or
``(B) a violation of a court order or injunction that
protects access to--
``(i) a facility that provides lawful goods or services; or
``(ii) the provision of lawful goods or services.
Nothing in paragraph (20) shall be construed to affect any
expressive conduct (including peaceful picketing or other
peaceful demonstration) protected from legal prohibition by
the first amendment to the Constitution of the United
States.''.
Mr. SCHUMER. Mr. President, I hope everybody will pay attention to
this debate, which has been going on intermittently in the Chamber for
the last 4 or 5 years. Not much has changed, except the votes of some
of my colleagues, if you can believe the press reports.
Let me start by saying I believe in bankruptcy reform. It is very
wrong for people to abuse the code. But reform should be across the
board, it should be applied fairly. It should not be just for some
interests. When some interests are abused, we legislate on that, but
when other interests are abused, we do not. It should not sweep under
the rug people who have real needs, as the amendments of some of my
colleagues--the Senator from Massachusetts and the Senator from
Illinois--have tried to address. A reform bill should not contain a
trove of treats for some supposed victims of the system, such as banks
and credit card companies, but leave others shivering in the cold.
For this reason, the bankruptcy bill before us today does not do the
trick. It has many deficiencies and, to my mind, a glaring, gaping
hole. While the bill supporters give lipservice to fairness, they have
carved out a loophole for those who use violence, for those who seek to
use bankruptcy for a purpose it was never intended. It is a loophole
that I cannot live with, and, once upon a time, in a different world,
the vast majority of Senators agreed with me and voted to close this
loophole.
Most of you are already familiar with this provision. After all, most
of you have voted for it before. Indeed, this is identical language;
there is not a single word change in this amendment, the Schumer-Reid
amendment, from the amendment that was added to the bill a few years
ago. This identical language was contained in the compromise bill we
have heard so much about this past week.
Along with Senator Reid, I am reintroducing the provision that would
close this loophole once and for all. I am pleased that Senators Leahy,
Feinstein, and Murray are also cosponsors of the amendment.
Put simply, the Schumer-Reid amendment would end the ability of
violent extremists to hide behind bankruptcy laws to escape court-
imposed debts. The amendment is very simple: If you use violence or the
threat of violence to achieve a goal, a political goal, and you are
successfully sued--as you should be--by the person or persons you have
used violence against, you cannot then go back home to a bankruptcy
court and say, protect me. Has anyone who ever envisioned the
bankruptcy law felt that it should be used to protect those who use
violence or threats of violence? I doubt it.
There is talk by some of ``peaceful protests.'' As I will talk about
later, the bill explicitly protects peaceful protests but not violence
or the threat of violence. It doesn't matter if you are
[[Page S2204]]
an extremist in the pro-life movement or the animal rights movement or
any other movement; if you believe you are so right that you have the
ability to take the law into your own hands and threaten others and do
violence to others because your knowledge and feelings are superior to
everybody else's, you are wrong. That is not American. Again, you
should not be allowed to use the Bankruptcy Code to protect yourself
from a rightfully imposed civil remedy.
This amendment could really be called the Schumer-Reid-Hatch
amendment because in 2001 Senator Hatch sat down with me and together
we worked out this compromise. We worked out this precise language in a
bipartisan fashion over 4 years ago. There is only one difference--that
since we worked out this compromise, which a large number of colleagues
on the other side of the aisle supported, including those who disagree
with me on the issue of choice, we have found that a small group in the
House has been able to block the bill if it had this amendment in it.
There is no reconsideration of the merits of the amendment. There is no
argument made against the amendment that hasn't been made before and
rejected overwhelmingly by this body. It is simply allowing a small few
in the other body to dictate what we are doing here.
If reason and logic prevail, this amendment would be considered among
the least controversial and most sensible fixes to the current bill. If
bipartisanship and consistency were the order of the day, this
provision, which was unceremoniously stripped from the current bill,
would pass again overwhelmingly. The bill is intended to curb abuses of
the Bankruptcy Code. But why are we curbing abuses when the victim is a
credit card company or a bank but not anybody else? Why not also when
the victim is a woman pursuing her constitutional rights? Does that
woman have any less rights than a bank or credit card company, or a
doctor pursuing a living, doing what he believes is right and what is
allowed by law, according to the Supreme Court and enshrined in the
Constitution, and this doctor tries to prevent people from hounding his
children, from threatening them with violence, and then you say, no, we
are going to protect the credit card companies and the banks but not
that doctor, not that woman; is that fair? Is this bill fair and
balanced?
We want to reform bankruptcy; there are abuses. But why are we only
reforming the abuses that affect some and not others? Why are we only
reforming the abuses that affect some of the most powerful interests
and not those who are weaker or more helpless?
In the current climate, I am sad to say that there appears to be an
edict from the leadership on the other side to vote down every
amendment, no matter what its wisdom for efficacy. That is not what the
Senate is about, that is not what America is all about, and that is not
what our constituents sent us here to do. It would be a tragedy if that
sort of marching-in-lockstep attitude affected the Schumer-Reid
amendment.
Let me take a minute to describe the history of this amendment, to
refresh the recollection of many of my colleagues who may have
forgotten it. Let me tell you what happened. Of course, Roe v. Wade was
passed by the Supreme Court in 1973. Many opposed Roe v. Wade; they
felt it was against their religious beliefs. I respect those religious
beliefs. A large movement of protests developed, the vast majority of
which was peaceful. The former bishop in my home of Brooklyn would
stand in front of a clinic every week and pray the rosary. That is an
American thing to do. That is a peaceful protest. But there were some--
an extreme few--who decided that they were so right, that what they
heard from God prevailed over what anybody else heard from God, and
that they should take the issue into their own hands. Some used the
methods of blockade, passive resistance. Others went further. They
would put acid on clinics that would render them useless--a destruction
of personal and private property, if there ever was. They would
threaten doctors. They would follow their children going home from
school and harass them. Inhumane. They would even encourage people to
kill doctors. We know doctors who were killed.
This protest movement was largely successful. It shut down about 80
percent of the clinics in America. There were some States and many
counties where a woman who was seeking her own right to choose would
not get that right, and, as a result, a number of us worked on a law--I
was a sponsor in the House, and I believe Senator Boxer was a sponsor
in the Senate--that would give the clinics that offered people a way to
effect their right to choose some help. The law made it a Federal crime
to use violence or the threat of violence against clinics. That was
necessary because you had large jurisdictions where the elected sheriff
said, I will not enforce the law, taking matters into his own hands.
As we were discussing what to do with this bill, I remember a meeting
in New York, and a young woman from one of the defense funds that
represent women said: Why don't you include the right to sue, so if the
Federal Government is unwilling or slow and cumbersome in protecting
this Federal right, the clinic could sue. We put it in the bill as an
afterthought, but it really proved to be the hope and the salvation of
the clinics because they began to sue those who would blockade them
when police forces would not enforce the law.
There was Dobbs Ferry in New York, where they wanted to enforce the
law. They had a police force of three, and hundreds of people were
protesting violently and blockading--not peacefully--and the police
force was overwhelmed. But the right to sue opened up these clinics
and, once again, the constitutional right, available voluntarily to
women.
No woman is forced to avail herself of this right; it is choice. That
is what it is all about--choice. Your beliefs may be different from
mine, but I respect yours; I hope you respect mine. I am not imposing
mine on you, and you should not impose yours on me, particularly when
they are deeply held religious beliefs. That is America.
So the clinics were open again. Many of these violent protesters sort
of faded away. They realized the legislatures were going to keep the
Roe v. Wade law, that they could not succeed in overturning it. If you
believe the polls, over 60 percent of Americans support the right to
choose. They had turned to violence and threats of violence, and now
the FACE law had stymied them in that decidedly un-American way to
enforce your views or effect your views. So we offered an amendment.
I skipped one point. Some of the more militant of these groups--the
militant of the militant--came up with a new way to avoid these civil
suits that the FACE law allowed. They said: Go back and declare
bankruptcy once you are sued, and then they cannot pursue the money
judgment used against you. This was made particularly difficult because
most of the groups that used violence or threats of violence were not
indigenous. They were not from the local community. There were a lot of
people against the clinics in the legal community, but they, like most
Americans, effected their views peacefully. But these were sort of
roving bands of groups from across the country. They would be sued
successfully, and then they would each go back to their home
jurisdiction and file for bankruptcy.
It was impossible for these clinics, most of which were small and not
terribly well funded, to then file after they won the first suit--a
burden enough to them. They should not have had to do it. It should
have been the Federal Government or the local government enforcing the
law. But they went back home, declared bankruptcy, and the clinics were
not able to pursue each of those suits in their home States.
An example is that of the notorious Nuremberg files case that took
place in Portland, OR. The defendants created, in that case, a Web site
that collected personal information about providers of abortion, clinic
staff, law enforcement officials, judges, and even Senators. The site
listed the names of those wounded in gray type and for those who had
been killed--including Dr. Barnett Slepian in my State who was murdered
in front of his family in 1998--they crossed out the names, as if they
had achieved something good.
Doctors and their families targeted by this Web site had to wear
bulletproof vests, install security systems, and take other
precautions. As one witness testified before the Judiciary
[[Page S2205]]
Committee, speaking of the targeted doctors:
They are not secure in their homes or in their offices.
They do not sit by windows in restaurants, and they even
refrain from hugging their children in front of open windows.
Can you imagine? Under the FACE law, the victimized doctors sued
these violent radicals who would threaten them. Judges and juries sided
with the victims and issued verdicts. For example, there was a $109
million verdict against the Nuremberg defendants. In another case,
Operation Rescue President Randall Terry ran up $1.6 million in fines
on account of his acts of clinic violence. But did these violent
extremists pay up? No. They instead filed for bankruptcy to avoid
responsibility for their heinous acts. In fact, many of these public
defendants publicly bragged about being judgment proof and thumbed
their noses at their victims, forcing years of protracted litigation.
Randall Terry, for example, blithely filed for bankruptcy to avoid
paying his debts. And the Nuremberg file defendants forced bankruptcy
litigation for years in six different jurisdictions to avoid their
debts. Some of the extremist groups even recruited people and had as a
criteria for admission to the group that you make yourself judgment
proof. One radical group, for instance, the American Coalition of Life
Activists, drafted its Constitution to state that members of the
organization ``must have their assets protected from possible civil
lawsuits (judgment proof).''
As one can imagine, with these tactics, it took years to enforce the
judgments against these violent radicals, and victimized doctors,
families, and clinics could not get the justice they deserved. We all
know that the wheels of justice are sometimes too slow, but tactics
such as this made a mockery of our system.
So when the bankruptcy bill came before the Senate back in 1999, I
offered an amendment to stop this awful abuse of the system. It made
sense. It was not adding a new issue to the bill. The bill was supposed
to deal with abuses of bankruptcy, and if there was ever an abuse of
bankruptcy, what these violent extremists did was an abuse of the
bankruptcy law. No one, when they wrote the bankruptcy law, thought the
Randall Terrys of the world deserved protection.
When I offered the amendment, Senator Hatch and others--some pro-
choice, some pro-life--came to me and said: Why are we singling out
pro-life activists who engage in violence and take the law into their
own hands? What about other extremists who abuse the Bankruptcy Code by
using violence or the threat of violence?
They were right. So we sat down. We had a fruitful discussion. From
this, Senator Hatch and I worked out a compromise with which everyone
could live. We hammered out an amendment that was not particular to the
issue of the clinics but dealt with anybody who would use violence or
the threat of violence in the same way--blockades, arson, whatever.
They, too, if they had a judgment against them, could not go to
bankruptcy court and successfully ask for protection.
The amendment we have does not mention the word ``abortion'' or
``choice.'' It simply talks about anyone who uses violence. It would be
applied with equal force and vigor to animal rights activists, to the
environmental extremists in the ELF movement. It only affects, frankly,
those on the far right or the far left who believe they are so morally
superior to all of us that they can avoid this constitutional democracy
and, with violence, take actions into their own hands. Anyone who
violently or misguidedly blocks access to services, whether in the name
of the pro-life movement, the animal rights movement, the environmental
movement, or any other movement, would lose the ability to hide behind
the Bankruptcy Code.
It would apply equally. It did apply equally to pro-life extremists
and ecoterrorists, one on the far right and one on the far left.
Indeed, if militants in the pro-choice movement should block a facility
that was pushing abstinence, it would apply to them, too. If violent
atheists blocked access or burned down a church, it would apply to
them. It applies to anybody who uses violence and then seeks protection
of the Bankruptcy Code.
This amendment is not about abortion, as its critics attack it. It
did have its origins there because that is where violence was used, but
now, after the Schumer-Hatch compromise, it is an amendment simply
about the rule of law, something everyone of any political party, of
any political belief who is an American--when you swear your loyalty to
the Constitution of the United States, you are basically swearing
loyalty to the rule of law.
Let me underscore this: It does no harm, none, not 2-percent harm,
not 1-percent harm, not .1-percent harm; it does zero harm to
legitimate protesters who do not engage in violence or threats of
violence. The amendment expressly states that ``nothing in this
provision shall be construed to affect any expressive conduct,
including peaceful picketing or peaceful demonstration, protected from
legal prohibition by the first amendment to the Constitution of the
United States.'' If you protest peacefully, you are protected. If you
use violence or the threat of violence, you are not. That is the
American way, and we made it clear.
People who are against this amendment say it stands in the way of
peaceful protests. I ask them to cite me a single example where that
has happened. It has not.
This was a fair amendment. It applied to anyone who used violence to
effect their means and, in overwhelming numbers, Democrats and
Republicans supported it. Virtually all of my Republican colleagues now
on the Judiciary Committee, including some leading pro-life Senators,
supported it--Senators Hatch, Grassley, Kyl, and Sessions. I take off
my hat to them. They were being fair. I am sure they received a little
pressure: Don't do this. Maybe there were some winks: Hey, maybe this
violence is OK because we feel so passionately about an issue. But they
stood up. To their credit, these Senators, even though they are
staunchly pro-life, were reasonable and sensible about the issue.
Then on March 15, 2001, a bankruptcy bill, largely identical to the
one before us today, except that it had the Schumer-Reid-Hatch language
in it, passed in the Senate by a vote of 83 to 15. Only two Republicans
voted against it, and that was for reasons other than this amendment.
Then, of course, the bill was sent to the House. It looked like as if
would pass. I supported the bill with this amendment in it. I have
always said I will be for the bill with this amendment because I think
this amendment is so important, even though I am not happy with other
provisions in the bill. I am, frankly, less happy today with the other
provisions in the bill.
The bill was sent to the other body, and a fight ensued within the
Republican caucus. A large number, probably a majority of the
Republican caucus, wanted to support the bill, but a small number who
were the most fervent in their pro-life beliefs said no bill. The
Republican leadership in the House said since this divides our caucus,
even though a vast majority of the House would have supported the
legislation, in my judgment, they pulled the bill.
So now we are back to where we are today. We have basically the same
compromise as last year but without the Schumer-Hatch compromise. All I
am doing today is adding that compromise word for word. Again, not a
comma, jot, or tittle has been changed in the bill.
I have watched while amendment after amendment offered by Democratic
Senators to end abuses and close loopholes has been beaten back because
of an edict that this ``negotiated compromise''--not negotiated
certainly with many of us on this side--should be delivered pristine to
the House.
Republicans defeated an amendment to protect veterans because it was
not part of the compromise. That was offered by the Senator from
Illinois, Mr. Durbin. For example, a National Guard man or woman, a
reservist sent overseas does not make the same money they made before,
and maybe they have to go into bankruptcy. Do we want to come down like
a hammer on these people the same as we would come down on somebody who
squandered whatever money they had in Las Vegas gambling? Absolutely
not. But the amendment was defeated.
There was an amendment that was defeated to protect victims of
identity
[[Page S2206]]
theft. I believe that was done by my colleague from Florida, Senator
Nelson, because it was not part of the compromise.
Senator Kennedy has eloquently spoken of those who have to go into
bankruptcy because they do not have adequate health insurance or any
health insurance, and they are putting their every last nickel to save
their husband or their wife or their mother or their father or their
child. Again, no protection.
An amendment I offered which said millionaires could not abuse the
code by setting up a trust and putting all their assets in this trust
and then declaring bankruptcy and shedding themselves of debt also was
not allowed because of the compromise.
Mr. President, do you know what was part of the original compromise?
The Schumer-Reid amendment or, more correctly, the Schumer-Reid-Hatch
amendment. Yet this provision was stripped from the current bankruptcy
bill.
If Senator Hatch continues to suggest we should honor the grand
compromise from last time and not change it, then let's do it for
everybody. Let's not just take out this provision.
What, I ask, has changed since the bill of this language passed by a
vote of 85 to 13? Absolutely nothing. It was a good law then, it is a
good law now. On what basis can my colleagues now oppose the Schumer-
Reid amendment because it targets, among others, those who take the law
into their own hands to oppose a woman's right to choose? That is
nonsense. Senator Reid is the lead cosponsor of the amendment, and he
is pro-life. And as I have said, the language is not particular to
abortion.
Let me ask my Republican colleagues a question. I hope they are
listening: Would my Republican colleagues oppose a broadly worded
murder statute because, among other things, prosecutors could bring
charges against someone who killed a doctor who would provide abortion
services? Would they oppose a neutrally drafted arson statute because
men and women who burn down health clinics might come under its ambit?
There is no moral reason, no legal reason, no logical reason, for
Senators who once overwhelmingly supported this language to now oppose
the Schumer-Reid amendment. Some of my colleagues have said they are
still in favor of this amendment but do not want the entire bankruptcy
bill to be held up because of it. My purpose is not to hold up the
bankruptcy bill, and I think my colleagues on the other side who worked
with me over the years on this bill understand that. My purpose is to
preserve the rights of those who seek to do constitutionally protected
acts in the face of violence.
So I ask my colleagues to please think about what they are doing. If
they vote against this amendment, they are voting against the rule of
law. If they vote against this amendment, they are voting against the
fundamental way we do things in America. If they vote against this
amendment, many of my colleagues are voting exactly the opposite of
what they did a few years ago. I ask my colleagues not to change their
vote because of political expediency. If my colleagues turn their back
on this amendment now, it will be a turnaround, an about-face, on
fairness, on reform, and on bipartisanship.
As I have said, this is not pro-choice or pro-life. It is pro rule of
law and it is antiviolence. No matter how strongly people feel--and I
respect people's passions; I respect their passions whether they come
from religion or politics or anything else--the greatest danger our
Republic faces is apathy, so people who feel passionately are good.
Because someone feels passionately, they should not be allowed to take
the law into their own hands and then hide like a coward behind the
bankruptcy law.
Just as we are trying to end the abuses of the bankruptcy law when it
affects banks, we should also end abuses of that law when it affects
victims of violence. It is vital that we make the law perfectly clear
that debts incurred by violent extremists who take the law into their
own hands are nondischargeable, and that is all this amendment does, no
more or no less. If we do not, individuals and organizations seeking to
shut down public facilities, whether they be clinics, powerplants or
animal laboratories, will continue to force victims of clinics and
other violence into a world of perpetual litigation by using the
Bankruptcy Code as it was never intended.
I ask my colleagues to support this amendment. Most of them did once
and they should do so again.
I reserve the remainder of my time, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SCHUMER. Mr. President, my colleague from Alabama is in the
Chamber. I was going to ask that the time be equally divided as we were
in the quorum call and not charged to myself, but if my colleague from
Alabama is taking the time, then that is moot.
The PRESIDING OFFICER. The Senator from Alabama is recognized.
Mr. SESSIONS. I thank the Senator from New York. As someone who has
worked hard on this bankruptcy legislation for the 8 years I have been
in the Senate, I have learned a political lesson that no matter how
much bipartisan support a bill has, how much momentum it has, how
needed it is, things can go awry.
In the last passage of this bill, Senator Schumer offered, and
aggressively argued, for the amendment that we are debating today. The
leadership on this side of the aisle said, OK, we will accept it. I
realized that it was problematic for a number of reasons. I opposed the
amendment, but it passed, and without a whole lot of objection, I
suppose, from this side. The truth is it then became the single factor
in the House's rejection of the bankruptcy bill, a bill that passed
this body by a vote of 83 to 15. It was really a remarkable sort of
event.
Let me just say a few things about the bankruptcy procedure. It has
long been a fundamental principle of bankruptcy that while a bankrupt
individual may bankrupt against their lawful debts, wipe them all out,
and pay none of those debts, it has always been the law that a bankrupt
may not discharge, may not wipe out, erase the debts that they incur as
a result of intentional or willful misconduct.
If a debtor lists debts that arise from an intentional wrong against
someone, the trustee in bankruptcy or a creditor or any of the
creditors can object to that discharge, and they would note that it
should not be wiped out, it should not be discharged, because it is a
debt that arises from a willful, wrongful act.
The court then considers that and determines whether or not the debt
should be wiped out and whether or not it was a debt that arose from a
nondischargeable reason like willfulness.
Senator Schumer's amendment says that willful violators of abortion
clinic protest prohibitions, and really a lot of other protestors, it
appears to me--maybe unions, civil rights, environmental, I think he
has said that they are covered here--he says that if willful violators
of abortion clinics and these others included in his bill are sued and
a judgment is rendered against this protestor under Federal law, then
automatically those judgments are not subject to discharge; the court
does not review it; they remain a debt of the protestor for their life,
and they can be pursued by collection attempts for as long as that debt
exists, and it can be for some time.
What we do know is this: Abortion clinic protestors have been sued
for misbehavior at abortion clinics under the FACE Act. Some of these
people have been relentless in their actions and have acted repeatedly
in violation of law, and they have been sued. Judgments have been
rendered against them. Most of them do not violate the law. As the
Senator has said, the archbishop prays the rosary and conducts lawful
acts, demonstrating his concern over the taking of what I consider to
be life by the abortion act, and this is a free country and they are
allowed to do that. But there are certain things that one cannot do in
that protest, and a number of people in the past, a lot more than is
currently happening, frankly, violated those prohibitions of the FACE
Act. They have been sued and judgments have been rendered against them.
[[Page S2207]]
We also know that some of those protestors who had judgments rendered
against them went to bankruptcy court and sought to wipe out their
debts and not pay these debts for their protests, to discharge them
from bankruptcy.
Finally, we know that under the current law, and under the law that
is in the bankruptcy bill that is moving forward today, it has not
changed on this point. That law prohibits the discharge of debts
arising from willful acts. In every single case that the courts have
considered petitions for discharge, in these abortion FACE Act
violation cases, the bankruptcy court has refused to discharge the
debt. They say, no, it was a willful act and you cannot discharge it;
you still owe it. And the abortion clinic plaintiff or doctors or
whoever is victimized can continue to pursue collection wherever they
go. They can file garnishments against people's wages, file judgments
against their property and pursue them aggressively and steadfastly to
collect that debt. That is what the law has said every single time, and
there is not much dispute about that. I do not think the Senator from
New York would dispute that.
By his amendment, the Senator from New York, because of his concern
over these very few cases, frankly, but he is concerned about it and
has raised the issue a number of times, has managed, as a result of his
successful passing of that amendment on this Senate floor 2 years ago,
to cause the bankruptcy bill and all of its important parts to actually
die and not become law because the House refused to accept it. Because
of his concern, I know he has offered this again.
What he would want to say, and what his amendment says, I think
fairly stated, is that a protestor and not just abortion clinics but
any number of protestors who are sued under Federal law, and a judgment
is rendered against them, Senator Schumer would want to make that
judgment automatically not dischargeable, automatically without review
by the court or any examination of the facts of the situation, to say
it should not be discharged and will remain a permanent debt of the
protestor.
I know the Senator said we all voted for this and there was some sort
of agreement. I really do not think there was an agreement about this.
As I recall, it came up in the Judiciary Committee. Chairman Hatch was
trying to move the bill forward, as he frequently does, and allowed it
to become accepted by a voice vote without any big to-do. It came up to
the floor and was debated again, and a decision was made that we would
just allow it to pass. It was not that big a deal as people saw it at
the time.
I opposed it. I did not feel good about targeting these kinds of
cases. I thought that the current law was acceptable and we should not
go in this direction, but it passed and I voted for final passage of
the overall bankruptcy bill. So I think that is why the Senator says I
and others voted for it. A lot of people voted for the bill on final
passage that may not have voted for the amendment on the floor.
Regardless of that, the question is, now what should we do? I would
just note that there are a number of reasons why I think this should
not be a part of the bill. First, as I have noted, these protestors
have lost every single case in which they have sought to discharge
debts arising from judgments under the FACE Act. The current bankruptcy
law and this bill will say flatly that such debts are not dischargeable
if the injury is the result of a willful, malicious act, as these
violations for the most part are.
So, first, it is not necessary, and I would again note that the bill
covers more than just abortion protestors. There could be any number of
protestors. I think about the situation where maybe somebody from
Alabama goes up to the southern district of New York and gets sued up
there and a big judgment is rendered against them for taking a position
unpopular in New York or maybe, as has happened in the past, people
from New York have come down to Alabama and have been involved in
protests and could have judgments rendered against them in local
courts. So the Senator would say that under no circumstances, when that
judgment were to appear on a discharge petition in bankruptcy court,
would the court have any authority to look behind it. This Federal
bankruptcy judge would have no authority to look behind this judgment
to see if it was willful or intentional as the current law and the law
has always been in bankruptcy, to my recollection, pretty much from the
history of bankruptcy law. He would not look behind it and he would
decide automatically it is a judgment not dischargeable. I am not sure
that is good policy. I am not sure we want to do that. As a matter of
fact, I do not think it is. I think the current law works. We should
not do this. The Schumer amendment is bad policy. I disagree with it. I
do not think it is the biggest deal in the entire world, but I think
under the legal system and the principles of this bill, we would be
better off allowing the bankruptcy court to consider these debts and
examine them to make sure they meet the standards of discharge.
There is a big practical reason. This bill has passed the Senate four
times by an overwhelming vote. One time I think it was 97 to 1. It has
been marked up in the Senate Judiciary Committee four times, and it has
not been lightly considered on the floor of the Senate. It has been the
subject of hours and hours and days of debate. We are already into the
second week on this bill. After all the debate and all the hoopla we
have had, and so many other issues, we continue to pound away at this
legislation for reasons that I am unable to fathom. But we are moving
forward. I believe we will pass it again.
What is the practical reason? The House of Representatives rejected
this bill the last time for the sole reason of the Schumer amendment.
It is unbelievable. As much as we had in this bill, all the pages of
this legislation, one little amendment killed this legislation, an
amendment that I believe is bad policy, certainly not necessary, and I
submit could result in killing this legislation again if we move it
forward.
So let's not do it. Let's not do this. Let's not go beyond the bill
that we have now, that came out of the Judiciary Committee with a
bipartisan vote, an overwhelming vote out of the Judiciary Committee to
come to the floor without the Schumer amendment in it. Let's not add
this amendment and jeopardize the passage of the bill.
Let's not add this amendment and perhaps take a step, I submit with
all seriousness, that could curtail protests and freedom of expression
in America. Sure the protesters have lost every time. I believe they
should have lost every time under the law. But there may be some times,
under some of these provisions of Federal law, that could result in
judgments that legitimate protesters were simply standing up under
hostile circumstances in a hostile jurisdiction for what they truly
believe in, and then the bankruptcy judge has no ability whatsoever to
prohibit this judgment from sticking against them perhaps for the rest
of their lives.
I don't know.
I don't think the law is failing in this regard, and I do not think
the law is being abused in this regard. I think it is being handled
well. We do not need this amendment for the reasons I stated, and for
other reasons, frankly, that I will not state at this time.
I urge the rejection of the Schumer amendment and note with pleasure
that Senator Hatch, the former chairman of the Judiciary Committee, now
a senior Republican member of it who has worked on this legislation
since the beginning, is on the Senate floor. I am pleased to yield to
him.
Mr. HATCH. I thank my colleague.
The PRESIDING OFFICER (Mr. Sununu). The Senator from Utah.
Mr. HATCH. Mr. President, I appreciate the remarks of my colleague.
As usual, he has done a very good job in outlining what is involved in
this bankruptcy bill, and I believe he deserves a lot of credit for the
hard work he has done on the floor.
Mr. President, comes now the Schumer amendment or, should I say,
comes again the Schumer amendment. I rise to speak in opposition to
this amendment. Been there. Done that. In fact, I have been there and
done that a few times.
I have been around here long enough to know a poison pill when I see
one. And make no mistake about it, this has become a classic poison
pill amendment.
I have worked in good faith for several years to attempt to
neutralize the
[[Page S2208]]
counterproductive effects of this amendment. But no matter how we try
to adjust the language, we cannot overcome the basic flaw in the
amendment: The Schumer amendment is a solution in search of a problem.
I oppose this amendment. It is no secret that I am genuinely fond of
the senior Senator from New York. While I frequently disagree with him
on issues, I respect enormously his political skills.
Even when from my perspective he is wrong--such as the leadership
role he has played in organizing the first permanent filibusters of
majority-supported judicial nominations--I know that he always tries to
act in a heartfelt manner that advances his political agenda.
We have been able to achieve compromises on many issues over the
years. Senator Schumer and I have worked together on many crime issues.
For example, we have worked on language pertaining to the designation
of high-intensity drug trafficking areas.
Over a period of years we have tried to work together on the subject
matter of the pending amendment to the bankruptcy bill. I have always
been willing to work with him and others in the interest of passing the
bankruptcy reform bill.
From the beginning of this debate, many others and I have long
contended that his amendment is unnecessary on its own merits. The
amendment which we consider today appears to seek to guarantee the
collection of civil and criminal penalties arising from
criminal violations of the 1994 Freedom of Access to Clinic Entrances
Act. The purpose of the Schumer amendment is to make clear that those
who are fined due to attacks on abortion clinics are prevented from
being able to discharge these fines and civil judgments resulting from
such attacks through bankruptcy proceedings.
My friend from New York has pushed a hot button. He must know that.
Injecting the polarizing politics of abortion into the bankruptcy bill,
most would have to agree, does not appear to be calculated to help the
passage of the bankruptcy bill. Quite the opposite, the Schumer
amendment has become a wedge issue that has stopped the bill in the
past and, today, can threaten the passage of this important bipartisan
bill that enjoys broad bicameral support.
I urge my colleagues to vote against the Schumer amendment. Let me
first explain my substantive objections and then I will describe my
procedural, pragmatic, and political concerns with the Schumer
amendment.
At the outset, it should be understood that in its best light the
Schumer amendment is a belts-and-suspender proposition that attempts to
solve a problem which, as far as I can tell, has never actually
occurred.
We have been debating this bill for 8 years, and I am still unaware
of any actual case in which a person who has been fined for harming a
person or property in connection with any unlawful protests against, or
attacks on, abortion clinics, has had any subsequent fines or financial
penalties discharged through bankruptcy. At our markup of this
legislation in February of 2001--more than 4 years ago, Senator Schumer
said in justification of the amendment:
. . . this is a vital amendment. I am not going into all
the details . . . I will not catalogue them except to tell
you that when Maria Vullo testified and anyone else did, they
said without the Schumer Amendment we would go back to the
days before 1994 when the clinics were closed by some who had
felt . . . that they were more moral than the rest of us. . .
.
Certainly that prophesy has not come to pass in the 4 years
subsequent to the time that Senator Schumer made that statement back in
2001.
I am unaware of a systemic shutdown of the network of abortion
clinics in this country over the past four years. Nor am I aware of any
evidence of the use of the bankruptcy code as a mechanism of escaping
financial responsibility for acts of violence against abortion clinics
or their personnel, or for that matter, any other criminal enterprise.
The reason for this outcome is simple: Current law prevents such an
outcome. Section 523(a)(6) of the bankruptcy code already prohibits the
discharge of debts through willful or malicious injury to a person or
property, and section 523(a)(12) makes restitution orders resulting
from a criminal conviction nondischargeable through bankruptcy.
Nothing in this bill changes these provisions in the law. Moreover, a
growing body of case law confirms the adequacy of these provisions when
it comes to enforcing judgments arising from FACE Act violations.
In Behn v. Buffalo GYN Womenservices, a 1999 decision in Federal
bankruptcy court in Senator Schumer's home State, the court rejected an
attempt to discharge a civil award debt resulting from an abortion
protest.
So it was rejected.
In Bray v. Planned Parenthood of Columbia/Willamette, decided in
2000, a bankruptcy court in Maryland rejected the attempt to discharge
debts resulting from an Oregon case in which a Web site produced by
anti-abortion extremists threatened the lives of those working in these
clinics. The 2001 Treshman decision in a Maryland bankruptcy court
confirmed that such actions will not be tolerated by permitting
discharge of restitution or judgment through bankruptcy.
Randall Terry, the founder of Operation Rescue, is living proof of
the adequacy of these laws. His Web site now solicits contributions
after he was completely bankrupted as a result of actions found to be
violative of the FACE Act.
From a purely legal perspective, it seems fair to say that what we
have here is a solution in search of a problem. This is actually
confirmed by the most recent testimony of my colleague from New York's
star witness on this subject, Maria Vullo.
Way back when this amendment was first suggested back in 1998 or
1999, several cases were still pending. But now these cases have been
resolved. And in every instance, the courts have refused a discharge of
these debts.
In answer to a question of Chairman Specter in connection with the
Judiciary Committee's last hearing on bankruptcy reform, held only 3
weeks ago, Ms. Maria Vullo acknowledged that she was ultimately
successful under current law in all six bankruptcy courts where she
acted to help prevent such improper bankruptcy discharges of abortion
clinic-related fines.
There you have it. The primary litigator in these cases testified
that she has won in all of her cases under existing law. This should
help lead us to the conclusion that there is no compelling legal reason
to change the law. There is an old saying: If it ain't broke, don't fix
it.
We are not talking just belts and suspenders, we are talking belts,
suspenders, and an elastic waist band. Discharges related to FACE Act
violations have not been permitted under current law.
Our laws are clear. We discourage, prevent, and punish abusive
filings, including those related to those offenses that occur in
connection with abortion clinics. Again, to my knowledge, there is a
complete absence of cases demonstrating the problem that this amendment
seeks to address. This is not surprising.
Our bankruptcy laws already act to prevent, have prevented, and will
act in the future to prevent precisely the problem that Senator Schumer
is worried about, but cannot, it appears, document. The truth of the
matter is that, on the merits, this is just an unnecessary amendment.
Yet this amendment has already scuttled bankruptcy reform on two
occasions.
In 2000 essentially the same bankruptcy bill passed this body with 83
votes and then 70 votes. It was vetoed by President Clinton in the
waning days of his second term for failing to include this amendment.
Then in the 107th Congress, the House of Representatives rejected even
a twice-amended--and moderated--Schumer amendment.
Now that it is clear that the courts will not discharge these debts,
the proponents of this amendment have slightly but subtly changed their
tune. Now the alleged issue of concern is that some will nevertheless
continue to attempt to discharge such fines and penalties--that is,
sometime, some place, someone will try to use the bankruptcy code to
shield illicit acts involving attacks on abortion clinics.
Some argue the amendment is justified on the supposed need to codify
the general prohibition of section 523(a)(6) against discharging debts
accrued in
[[Page S2209]]
connection with willful or malicious injury to a person or property
with a special provision of law geared solely toward abortion clinic-
related violence. The fact is, however, current bankruptcy law, along
with the ever growing body of precedents on this subject, make it clear
that attorneys will not be inclined to make these frivolous and abusive
filings in the future.
Rule 9011 of the Federal Rules of Bankruptcy Procedure already allows
sanctions against attorneys who participate in submissions to delay
proceedings and needlessly increase the cost of litigation. It says a
frivolous action without evidentiary support can be punished. I guess
it is true that particular bankruptcy courts may sometime in the future
eventually be faced with a filing by someone asking for improper
discharge of debts, but that is just the nature of litigation within
the bankruptcy system and the American system of justice.
Having the right to bring a claim in our system is very different
from winning that claim. For each case that goes to trial, there is a
winner and a loser. Trying to get around the bankruptcy code and case
law precedents in the manner feared by supporters of the Schumer
amendment is a losing case under current law.
Courts decide cases on the basis of the law and the particular facts
in front of them. That bankruptcy courts will have to undertake their
normal and traditional role of reviewing all relevant aspects of
individual filings that may, or may not, include these improper and
unsustainable claims related to abortion clinic damages is hardly a
grave injustice.
And for what it is worth, the success of the FACE Act and the
decisions of bankruptcy courts that hold those debtors to account
appears to have resulted in an ever dwindling number of judgments that
must be litigated.
This is an issue that is being overhyped.
The current statutes are clear.
The case law is clear.
The paucity of evidence of such claims for abortion clinic-related
violence and injuries being routinely, or even infrequently, made in
bankruptcy proceedings, reflects the fact that the word is out that the
statutes and case law already prevent the problem that the Schumer
amendment allegedly solves.
Moreover, I would like to add that section 319 of this bill expresses
the sense of the Senate that all signed and unsigned documents
submitted to a bankruptcy court must be preceded by a reasonable
inquiry to verify that this information is well grounded in fact and
warranted by existing law or based on a good faith argument for an
extension, modification, or reversal of existing law.
I am hopeful that this sense-of-the-Senate provision will help spread
the word even further.
When the Schumer amendment burst upon the floor in 2000, I worked in
good faith to make this questionably meritorious issue more palatable
to Members on my side of the aisle.
In particular, I wanted to help alleviate the concerns of those who,
as I, hold strong pro-life views. We are sensitive to the fact that the
original Schumer amendment could reasonably be interpreted as affecting
first amendment rights to protest against what we believe is the
unjustifiable practice of abortion.
It is my recollection that the original Schumer language back in 2000
also addressed attempted or alleged harassment, interference, and
obstruction. Many believed that this language was way too broad and
could have potentially implicated the actions of peaceful anti-abortion
protestors who were simply exercising their freedom of speech.
Nevertheless, for a variety of reasons, mostly political rather than
legal or policy, the Schumer amendment was accepted. One of the key
factors was that it appeared to some at the time that the amendment was
offered in part to give then-Vice President Gore an opportunity to
possibly cast a tie breaking abortion vote during the Presidential
election year of 2000.
I cannot say for certain that this was the case. But if it was, it
probably would not have been the first time that Presidential politics
played out on the floor of the Senate.
Before the February 2, 2000, vote on the Schumer amendment, I said
the following on the Senate floor:
Although I believe this amendment to be tremendously
flawed, the majority leader, Senator Grassley, and I
recommend that Members on both sides vote for this amendment.
We will, in good faith, in conference correct the amendment
and resolve these problems at that time. With this amendment
accepted, nobody will be able to demagogue this issue
politically in the context of true bankruptcy reform. We
pledge to work with our friends on both sides of the aisle
who are interested in this issue during conference to make
sure the law is clear, that the due respect for the first
amendment, and debts arising from violent acts cannot be
discharged in bankruptcy.
This is hardly a ringing endorsement and certainly nothing near an
absolute commitment to retain this language at any cost or contingency.
Nevertheless, in the 106th Congress the bankruptcy bill, with this
flawed language, passed the Senate with 83 votes.
Eventually during the House-Senate conference committee the Schumer
abortion clinic-specific amendment was not contained in the conference
report. The bankruptcy legislation, without the Schumer language still
passed the Senate with a strong bipartisan 70 votes.
Unfortunately, President Clinton then pocket vetoed the bill passed
by both the House and Senate.
Early in the 107th Congress, I worked with Senator Schumer on
compromise language that moved away from the incendiary abortion
clinics-specific language to a more general and neutrally-phrased
provision related to ``lawful good and services.'' This provision was
adopted by a unanimous voice vote of the Judiciary Committee on
February 28, 2001.
I would note for the record that despite this compromise, Senator
Schumer voted against the bill on final approval in the Judiciary
Committee.
On July 17 , 2001, this bill passed the Senate by a vote of 82-16.
The House-passed version of the bankruptcy bill in the 107th Congress
once again did not contain comparable language. I might add that the
House passed its bill by a strong bipartisan vote of 306-108 on
February 26, 2001.
At this point Senator Schumer and I worked with Representatives Henry
Hyde and John Conyers and others to fashion an acceptable compromise.
This compromise was rejected.
Frankly, at the time, I would have preferred that the compromise be
accepted and this already overdue bill be signed into law.
However, I can well understand the frustration of many of my
colleagues in the House being asked to adopt a watered-down version of
an amendment without meaningful legal effect derived from the
inflammatory original version of the Schumer amendment that addresses a
problem that apparently does not exist in the first place.
Rather than go down this fruitless road again, I ask my colleagues to
vote down the Schumer amendment for once and all.
Not only is it unlikely that the House will accept it, the Senate
should not accept it either.
One important difference from the situation of 3 and 4 years ago is
that we now have, as I discussed earlier, a more definitive picture of
how the courts will interpret the application of section 523(a)(6) in
the context of abortion-clinic related claims.
In short, the courts have not and will not allow fines or judgments
stemming from the willful or malicious injury to a person or property
to be discharged in bankruptcy whether they arise out of illicit
actions against abortion clinics that violate the FACE Act, or, for
that matter, any other of the literally dozens of other injuries that
can be conjured up relating to willful or malicious injury to a person
or property.
No one would, or should, take seriously any amendment that purported
to state explicitly that fines or judgments incurred from yelling fire
in a crowded theater could not be discharged through bankruptcy.
Nor should we support the Schumer amendment when we know it is both
unnecessary and divisive.
You do not have to be pro-life to be against the Schumer amendment.
You just have to conclude that 8 years is enough time to have worked on
one bill that has repeatedly engendered broad bipartisan support.
And to hold up this legislation once again over an incendiary,
extraneous,
[[Page S2210]]
redundant poison pill amendment is just not right.
I always try to seek a compromise or accommodation with my colleagues
whenever it is productive to do so and consistent with my principles.
In this case it is simply not possible to do so in a productive
manner absent any sign from the House that its Members are receptive to
such a compromise.
Having worked on this issue for several years, I have reached the
conclusion that the inherent volatility of the subject matter of the
original Schumer amendment has made it nearly impossible to arrive at a
neutral language resolution to this undocumented problem at this time.
Moreover, the well-known by now impasse over the acceptability of
compromise language is compounded by the simple fact that there is, to
my knowledge, no compelling evidence that there is a problem requiring
a legislative fix.
To a certain extent, this is an exercise that demonstrates why it can
be harder to fix a hypothetical problem than a real problem.
Frankly, that we would even be considering an amendment based on the
2001 Judiciary Committee markup language, rather than the revised 2001
conference report language, hardly seems like a step in the right
direction. To use an expression that my friend from New York sometimes
uses himself, reverting to the earlier language may seem to some a bit
like a poke in the eye.
I suspect that this is unintentional on the part of my friend from
New York. I wish we could have worked this out, and I thought we did
work it out.
But as I look at all the facts and circumstances, including the
developments in the actual cases brought and decided over the last few
years, I can only conclude that there is even stronger evidence today
than there was in 2000 and 2001 that this amendment is simply
unnecessary.
While I attempted in good faith to resolve this problem 4 years ago,
time seems to have proven that those I who looked askance at this
compromise in the first place were correct in their assessment of the
lack of necessity for this amendment.
I ask my colleagues to oppose the amendment of my distinguished
friend from New York for these reasons. It is important that we get
this bankruptcy bill finished. It is extremely important that we get it
done. If this amendment is added, it isn't going to get done again, and
we will be in the ninth year next year, frankly, probably 2 years from
now because we will never get what really has to be done in the best
interests of bankruptcy reform.
The PRESIDING OFFICER. The Senator from New York is recognized.
Mr. SCHUMER. Mr. President, I would like to ask my colleague a
question, but, first, I will make a couple of points.
First of all, nothing has changed since we all supported the Schumer-
Reid-Hatch amendment of a few years ago. The basic purpose then was not
to make sure that cases in bankruptcy court did not come out on the
side of those who were victims of violence. It was just impossible to
pursue the claims of bankruptcy.
My good friend from Utah cites Maria Vullo. She is a successful
lawyer in New York who donated her own time which she estimated at one
of our hearings to be worth over $1 million. She believed passionately
that those who used violence should be stopped. Not every clinic has
it. And, of course, if you go through the bankruptcy proceedings, you
will win. Clinics don't have the ability to do that; first, to fight in
court on the issue of violence and then to go back to the bankruptcy
court.
I say in all due respect to my good friend from Utah, he knew that
then, and he knows it now. It is the same issue. The very issue that he
says we don't need this law was brought up in 2000 and 2001. My good
colleague was then good enough to admit we did need the law even though
we couldn't find cases, and even though there were no cases in
bankruptcy court where the Randall Terrys of the world prevailed. You
would never have the successful suit.
That is why these fanatical groups are insisting that bankruptcy be
used.
I make another point to my colleague. If the amendment is unnecessary
now, why wasn't it unnecessary then?
I make this point to my colleagues: The merits have not changed.
Exactly the situation that prevailed in 2000 and 2001 prevails in 2005.
What has happened is people have done a 180-degree about-face because
of a small group in the House who do not represent the mainstream views
of the House or of even the Republican Party in the House but who have
insisted on not going forward with a bill with this worthy amendment in
it. An amendment that was praised, a compromise that was hailed a few
years ago is every bit as valid today as it was then.
I know it is difficult and awkward for people to say, well, never
mind, but we cannot let this issue just die. The rule of law is too
important. Fairness is too important. What is good and beautiful about
America is too important.
We will ask our colleagues to stick with their convictions that they
have had over the last few years and not do an about-face simply
because a small group of industry leaders says we must have this bill
no matter what.
Senator Hatch spoke for a long period of time. I wanted to rebut him.
He did not want to do it on his time.
The PRESIDING OFFICER. The Senator from New York does control time.
The Senator can yield time to the Senator from California, but in doing
so the Senator will lose his right to the floor.
Mr. SCHUMER. I yield 10 minutes to my friend and colleague from
California, and cosponsor of this legislation, Senator Feinstein.
Mrs. FEINSTEIN. Mr. President, I thank the distinguished Senator from
New York.
We are both members of the Judiciary Committee. We had an opportunity
to discuss and debate this amendment in the Judiciary Committee.
Senator Schumer's amendment is a critical amendment. Essentially,
when this body in 1994 passed the Freedom of Access to Clinic Entrances
Act, we said that individuals should be able to go into clinics without
being obstructed. The law was very clear.
The law also has led to successful criminal and civil judgments
against groups that use intimidation and outright violence to prevent
people from obtaining or providing reproductive health services.
This law would be seriously damaged if we do not close this loophole
that has allowed some antiabortion extremists to use bankruptcy to
shield their assets. The Senator from New York mentioned the founder of
Operation Rescue, Randall Terry, who said in 1998 after filing for
bankruptcy:
I have filed a chapter 7 petition to discharge my debts to
those who would use my money to promote the killing of the
unborn.
In my home State of California there was a similar incident involving
a man by the name of John Stoos and several other people in 1989 who
were sued by the operators of a Sacramento abortion clinic for
allegedly blocking the clinic's entrance and harassing patients. A
judge ordered Stoos and others to pay nearly $100,000 in attorney's
fees incurred by the clinic. As a result, Stoos filed for personal
bankruptcy, listing that debt among many he could not pay. These
actions are clear evidence of abuse of the bankruptcy system. This
bankruptcy bill should stop them.
I hope the Schumer amendment would be accepted by this Senate.
Let me use this time to speak a bit more generally about this bill. I
voted for this bill when it left committee. I have decided to vote
against this bill in the Senate. I want to say why. In committee, we
were asked to withhold all amendments to the floor. We knew the bill
was not a perfect bill. We have seen it improved over the years. We
knew it was better than the House bill. And with all complicated,
difficult bills, the tradition of the Senate has always been the floor
debate and discussion. In a majority of times as a product of floor
debate and discussion, problems in the bill can be remedied.
We knew there were problems in the bill. For example, I have an
amendment which I have withdrawn which says that the credit card
companies should, in fact, notify a minimum payer how long it would
take that payer of a credit card, if he only paid the minimum amount of
interest, to pay off the debt. Senator Akaka had a similar amendment.
It was summarily
[[Page S2211]]
defeated. I had an amendment; I had two Republican cosponsors. I
learned it would also be summarily defeated. Thanks to Senator Shelby
and Senator Sarbanes, the Banking Committee has taken an interest in
this and in the future and will take a look at it.
Nonetheless, the fact of the matter is this bill is all for the
credit card companies. I know there is credit card fraud. I know that
has to be met. I felt the bill was important to pass. However, I also
felt the bill should be balanced and that we should see that the
consumer is also protected in this process, protected with notice of
what a minimum payment means, and also, frankly, protected against high
interest rates.
Senator Dayton moved an amendment which would limit interest rates on
credit cards to 30 percent. The amendment was summarily defeated. The
fact is with penalties, with other charges, with high interest rates--
and many companies have interest rates, believe it or not, well in
excess of 30 percent--a minimum payer cannot ever pay the full debt
because the interest on the debt, if combined with certain penalties
and/or fixed payments, becomes such that it overwhelms the principal.
Many people do not know that.
The fact is 40 percent of credit card holders pay off their debt
every month; 40 percent make only the minimum payment; and 20 percent
are kind of 50/50 in that category. For those 60 percent who are
generally people who are not as informed, not as able to pay back their
bill, who may have one, two, three, four, five, six different credit
cards, because this is a credit economy, credit card companies have
been able, with very little interest to the payer of the debt, to
solicit huge fees, penalties, and interest rates. This is plain wrong.
If we are unable to correct it, which I had hoped would be corrected
by these amendments that have been presented, I cannot vote for this
bill as long as these gross injustices remain.
Let's for a moment look at the 30-percent interest rate. It is very
high. Inflation is about 2 percent. The interest rate on 3-month
Treasury bills is 2.75 percent. The national average lending rate on a
30-year mortgage is 5.59 percent. Yet an amendment to limit interest
rates on credit cards to 30 percent went down dramatically.
I mention there are companies that are charging high annual interest
rates. Some charge 384 percent, 535 percent. Amazingly, one Delaware-
based company has charged 1,095 percent, according to the Minnesota
chapter of the National Association of Consumer Bankruptcy Attorneys.
The Washington Post, the Los Angeles Times, other major newspapers
have pointed out where fees, rates, and charges have buried debtors.
They have pointed out a multitude of cases. A special education teacher
from my home State worked a second job to keep up with $2,000 in
monthly payments. She collectively went to five banks to try to pay
$25,000 in credit card debt. Even though she did not use her cards to
buy anything else, her debt doubled to $49,574 by the time she filed
for bankruptcy last June. Effectively, interest payments are half of
the debt. She will never be able to pay that off.
To push people like this from chapter 7 into chapter 13, when what is
the problem is interest rates and penalty fees that truly do victimize
an unsuspecting individual--how could this Senate do that, if someone
is going to charge a 100-percent interest rate?
One of my own staff members found that simply getting a credit card
cash advance resulted in an immediate 3 percent fee which was simply
added to the interest rate.
The result is even the most careful credit card users find themselves
often swamped, particularly those who can only afford to make a minimum
payment, and the fees, charges, and interests pile up, making it
virtually impossible to ever pay off the debt.
This amendment would have been a meaningful addition to the bill. It
certainly would have added fairness. It certainly would have sent a
signal to credit card companies that the sky is not the limit. Yet it
was defeated.
Senator Schumer's asset protection trust, of which I was a cosponsor,
was another indication of where wealthy people could shelter assets and
not have to pay back in chapter 13. These are some of the inequities.
In recent years a number of financial and bankruptcy planners have
taken advantage of the law of a few States to create what is called an
``asset protection trust.'' These trusts are basically mechanisms for
rich people to keep money despite declaring bankruptcy.
They are unfair, and violate the basic principle of this underlying
legislation--that bankruptcy should be used judiciously to deal with
the economic reality that sometimes people cannot pay their debts, but
to prevent abuse of the system.
This loophole is an example of where the law, if not changed,
permits, or even encourages, such abuse.
The amendment was simple. It set an upper limit on the amount of
money that could be shielded in these asset protection trusts, capping
the amount at $125,000.
The bottom line: Without this amendment, wealthy people will be able
to preserve significant sums of money in an asset protection trust,
effectively retaining their assets while wiping away their debts.
The proposed cap amount, $125,000, is not a small sum. It is more
than enough to ensure that the debtor is not left destitute. I believe
it is a reasonable amount--it is deliberately based on the now-accepted
$125,000 limit for the homestead exemption, which will also remain
available to a debtor.
I would also like to say a few words about my concerns about what
appears to be a new policy in the Senate.
It appears that the Republican leadership has decided that rather
than honoring the 200 plus year tradition of the Senate as a
deliberative body, the Senate should be run like the House of
Representatives. There appears to be a new process being implemented in
which the Senate should no longer seriously consider amendments on the
floor to improve bills.
We are now in the middle of the second major piece of legislation
where the majority has decided that amendments by the minority will be
rejected wholesale regardless of the merits.
It appears that even when serious problems in the underlying
legislation are raised and even when the Republican leadership agrees
that the problem exists, amendments offered by the minority will be
rejected.
In fact, when the Judiciary Committee was marking up the bill,
Senators were asked not to offer amendments and instead offer them on
the floor. Statements were made by the Acting-Chairman like, ``I know
we are going to go through this on the floor and I don't see any reason
to keep us here all day and all night''; and, ``[You will] have every
opportunity to present these amendments on the floor.''
Yet, upon reaching the floor, Senators have found that their
amendments are not being considered on the merits.
It is the Senate's job to carefully debate, carefully consider, and
pass the very best laws we can. But now the Senate is being asked to
simply pass legislation as drafted, regardless of its content.
This lack consideration and care does a disservice to the Senate and
to the Senators who work hard to reach compromises and find common
ground. But more importantly, it does a disservice to the American
people.
We are here to develop the best policy we can, not to simply play
political games and jam through legislation for the sake of expediency.
As I began, I want to be clear. I support bankruptcy reform
legislation, and I support many of the provisions in the underlying
bill. However, throughout this process many important issues have been
raised that identify serious problems that must be addressed. The
Senate has been and should remain a deliberative body that seeks to
draft the best legislation we can. Unfortunately, that is not what we
are doing.
And unfortunately, based on these concerns, I regret that I am no
longer able to support the bankruptcy legislation. I do not believe the
bill before us is balanced. There remain many serious problems that
must be addressed before I am ready to support the legislation. I have
decided because of the summary disposition of amendments by the other
side, this Democrat Member is going to vote ``no'' in the Senate.
Thank you, Mr. President, and I yield the floor.
I yield the floor and suggest the absence of a quorum.
[[Page S2212]]
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. FEINSTEIN. Mr. President, I ask the time be charged equally on
both sides during the quorum call.
The PRESIDING OFFICER. Without objection, the time during the quorum
call will be charged evenly to both sides.
The Senator from Kansas.
Mr. BROWNBACK. Mr. President, I yield myself as much time as I may
consume from the Republican side of the agenda.
I thank my colleagues for this good debate on an important issue that
does not belong on this bill. There are several key reasons, clear
reasons why this amendment of the Senator from New York should be
rejected. This is an important piece of legislation, the bankruptcy
legislation. This amendment brings the most difficult social issue we
have of our day into this debate. It does not belong here. It is not
the right place to do this. We have plenty of pro-life issues to come
before this Senate, and not to tie the bankruptcy bill up would be an
important thing to do.
The membership opposes this amendment because, as we learned in
previous Congresses, it is a poison pill.
The amendment is meant to kill the overall bankruptcy reform bill. I
would hope that is not what the author's intent is. But that is the
effect of this amendment. It kills the bill.
If the author of this amendment wants bankruptcy reform to move
forward, it is something that needs to move forward. I have voted
against bankruptcy reform in the past because I didn't think it was
proper. I thought particularly we have problems on homestead provisions
that we have been able to get worked out over the years we have been
considering this legislation. Now we have that worked out as many other
pieces have been refined over the 6 years this has been considered.
Now is not the time to add this most contentious issue into the
debate. It is not the proper place, and it is time that we move the
bill forward, move it to the House and to the President for signature.
Bankruptcy reform is an important matter. It would be my desire for
my colleague not to offer the amendment so that we can focus on the
particular critical issue facing our Nation in the form of the need for
fundamental bankruptcy reform.
Aside from the abortion issue, I am deeply concerned about what I
believe to be a lack of fairness and justice embodied in this
amendment. There is a fundamental fairness issue involved with this
amendment. No one in this Chamber condones violent crime. I am certain
that everyone believes violent crime should be prosecuted to the
fullest extent of the law. While the pending amendment is presented as
a way to address violent crime, it would primarily and inappropriately
intimidate and harm peaceful protesters. In fact, were the Schumer
amendment to become law, no crime would even be necessary to trigger
its sanctions. Merely violating a Federal or State civil statute, such
as a minor trespass, would be enough to place a violator in financial
jeopardy.
Historically this legislative body has fashioned criminal and
bankruptcy penalties in a manner proportional to the gravity of the
offense and the degree of injury and culpability. If enacted, this
amendment would be a radical break with this tradition of prudence and
fairness. For example, under current law, there are only a few extreme
cases where a debtor is prevented from seeking discharge of his or her
debts through bankruptcy protection. For example, instances in which
discharge of debt is prohibited include intentional financial
wrongdoing, such as fraud and embezzlement, or cases where the debtor
has created a grave unjustifiable risk to human life, such as injury
caused by drunk driving. Those are appropriate.
The Schumer amendment would put a peaceful pro-life protester who, in
the course of exercising his or her first amendment rights, simply
steps in the wrong place--trespassing--on a par with embezzlers or
drunk drivers. Should the price of constitutional freedom be the risk
of financial ruin? Amazingly, this amendment says yes. The amendment
says that people who protest and who do no physical harm, have no
malicious intent should be singled out for harsh treatment.
While I make no excuse for violations of the law, I have to ask
again: Should not the gravity of the punishment correspond with the
offense? I don't think that is at all the case in this particular
amendment.
A literal reading of the Schumer amendment would strip a peaceful
protester of bankruptcy protection should he or she simply step in the
wrong place while leafleting or even praying the rosary. Whether the
fine involved is $10 or $1 million, we are talking about a peaceful
individual and families with young children who should not be forced to
risk paying this price simply for doing what the Constitution permits.
Fairness and the great tradition of our first amendment freedoms
counsel against the adoption of this amendment.
I urge my colleagues to vote against it. It kills the bankruptcy
bill. It is against fundamental fairness and freedom for people to
exercise their right of free speech.
I suggest the absence of a quorum and ask unanimous consent that the
time be equally divided.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LAUTENBERG. Mr. President, I rise to support the Schumer
amendment to the bankruptcy legislation presently before the Senate.
The amendment provides that debts or judgments arising from acts of
violence and threats of violence cannot be discharged in bankruptcy
proceedings. While this provision was drafted in previous Congresses to
specifically apply to reproductive health service providers and
abortion clinics, it has been expanded this year with the help of some
of our Republican colleagues.
The amendment now addresses violence and intimidation aimed at
blocking access to any type of lawful good or service. The Schumer
amendment now applies to anyone who threatens, intimidates, or harms
another person in the course of a lawful practice in places like houses
of worship, the workplace and restaurants.
Supporters of the bankruptcy bill argue that this amendment should be
defeated because any amendment to so-called compromise bankruptcy
legislation would upset the apple cart, causing the House of
Representatives to reject it.
I cannot understand how this Senate could could fail to pass an
amendment that would simply prevent perpetrators of violence from
hiding behind our bankruptcy laws. Where is the justice in permitting
such a practice?
For the past week, supporters of the bankruptcy legislation have
consistently talked about personal responsibility and the need to
prevent people from abusing the bankruptcy process.
In fact, the centerpiece of this legislation is a means test that
presumes chapter 7 filers are abusing the bankruptcy laws because their
monthly income increases by as little as $100.
The Schumer amendment is intended to prevent extremists and fanatics
from abusing our bankruptcy laws to shield themselves from paying fines
and fees imposed by a court of law after they have endangered someone's
livelihood.
These attacks are more common that one might imagine. Since 1977,
there have been 7 murders, 17 attempted murders, 41 bombings, 171
arsons, 100 butyric acid attacks, and 655 threats targeting abortion
providers alone.
In total, there have been more than 4,000 cases of stalking,
burglaries, kidnappings, assaults, anthrax threats, invasions,
attempting bombing and acts of vandalism, perpetrated against people
who were performing or offering a legal procedure. And in case after
case, after the perpetrators of these acts of intimidation and violence
are
[[Page S2213]]
brought to justice, they hide behind the bankruptcy code to shield
themselves from assuming responsibility for their actions.
As Senator Schumer has said, this issue is neither pro-choice nor
pro-life; it is ``pro-rule-of-law and anti-violence.''
While we have a right to disagree with the law in this country, and a
right to try to change the law, no person has the right to take the law
into his own hands.
I have followed this issue for a long time. The first blockade of an
abortion clinic occurred in Cherry Hill, NJ, in 1987.
The first murder of an abortion provider occurred 12 years ago, on
March 10, 1993, when Dr. David Gunn was slain during an antiabortion
protest at a Pensacola, FL clinic. Since then, there have been six more
murders.
In 1994, responding to a rash of violence against abortion providers
around the country, I asked the United States attorney to convene a
task force to ensure that all appropriate measures were being taken to
protect women and doctors and to prosecute those who threatened them
with violence.
Later that year, Congress enacted the Freedom of Access to Clinic
Entrances, FACE, Act, which established Federal criminal and financial
penalties for those who employ violence and intimidation to prevent
persons from obtaining or providing reproductive health services.
Unfortunately, the perpetrators of violence have used our bankruptcy
laws to evade responsibility and escape the financial penalties that
were part of the FACE Act. For example, former Operation Rescue
president Randall Terry has filed for bankruptcy to avoid paying more
than $1.6 million in fines and fees that he owes as a result of his
illegal actions.
We must not allow those who would take the law into their own hands
and commit acts of violence against their fellow citizens to hide
behind our laws when it suits their purposes. We must not allow our
bankruptcy laws to be abused as a shield for violence.
I encourage my colleagues to support the Schumer amendment.
Mr. SCHUMER. Mr. President, we have 11 minutes on our side. How much
time remains left on the other side?
The PRESIDING OFFICER (Mr. Burr). There is 10 minutes remaining on
the minority side and 15 minutes on the majority side.
Mr. SCHUMER. Mr. President, I ask unanimous consent that the last 5
minutes be reserved for me and the previous 5 minutes to whoever wants
to speak for the other side.
The PRESIDING OFFICER. Without objection, 5 minutes will be reserved
on each side to be allocated from that side's time remaining.
Mr. SCHUMER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, it is my understanding there is 6\1/2\
minutes on the Democratic side.
The PRESIDING OFFICER. The Senator is correct.
Mr. REID. I will use a minute and a half of that now.
Mr. President, I am happy today to rise as a cosponsor of the Schumer
amendment. This amendment would ensure that debts arising from unlawful
acts of violence cannot be discharged from bankruptcy.
America is a nation of laws. One might not always agree with the law
or how it is interpreted, but that does not entitle you to willfully
violate the law. The right to express disagreement is to seek change
through peaceful means. It is never appropriate to resort to violence
or intimidation in violation of the law. Here in the Senate we express
policy differences through civil discourse and resolve them through the
political process, not through violence. We debate in this body
passionately but in a manner of respect and civility in an attempt to
persuade others of the merits of our position, and that is the purpose
of the debate. Those who resort to violence are violating not only our
laws but our American principles and values. They are violating what we
call the rule of law on which this country was founded.
Unfortunately, some who break the law are using a loophole in the
Bankruptcy Code to avoid paying the fines and penalties assessed
against them as a result of their illegal activities. This amendment
will ensure that individuals who engage in such acts of violence,
intimidation, or threats, cannot hide in bankruptcy from the penalties
imposed on them from violating the law.
I emphasize that this amendment is not about the right to abortion,
nor does it single out anti-abortion protestors. This amendment applies
to anyone who violates a law related to the provision of lawful goods
and services. It applies to any extremist who will turn to violence to
protest lawful activities.
For example, this amendment would apply to animal rights activists
who engage in illegal tactics to shut down a lawful animal research
center. There are many people who think that using animals for medical
research is immoral and wrong, but this does not entitle those people
to come in and trash one of those facilities, as has been happening. It
would apply to an ecoterrorist who engages in illegal tactics to
intimidate car dealerships or timber companies from doing business with
people they think they should not do business with. It would apply to
an arsonist who starts a fire at a church to deprive worshippers of the
right to practice their religion. All of these extremists must be held
accountable for their actions, and none should be permitted to
discharge their debts in bankruptcy.
It is true that some of the worst abuses of this kind have been anti-
abortion extremists who have terrorized reproductive health care
workers. They have directed thousands of acts of violence against
abortion providers, including bombings, arson, death threats,
kidnappings, assaults, and murders. When a man by the name of Barnett
Slepian, who was a father of four, a husband, was a victim, I was the
first person to come to the Senate floor and say that is wrong. When
violence occurred at a Planned Parenthood clinic--I believe that is
where it was--someplace in the South, I came to the floor immediately
to say that one cannot violate the law because they disagree with what
a lawful business is doing.
Dr. Slepian was an obstetrician/gynecologist. He provided health care
to women and delivered babies and, on occasion, he performed abortions.
He was at a downtown clinic, and he worked there specifically because
he believed it was important he give his expert advice to people who
were poor. Because of this, one night he was in his living room, and
someone with a high-powered rifle shot and killed him while he was
there with his family.
I did not know this doctor, but I learned after his death that he was
an uncle of a woman who worked for me. The woman was from Reno. She was
a good employee. Of course, she was heartbroken over the fact that her
uncle had been murdered. The person who did this was not only a
murderer but should be seen as a terrorist.
What is going on in Iraq today? We have these extremists, these
terrorists, who do not like what is going on there, and so they are
committing these criminal acts. They are taking the law into their own
hands.
The man responsible for killing Dr. Slepian was extradited from
France a few years ago where he had fled. His name was James Kopp. Kopp
was part of an organized network of violent extremists, including a
group that called itself the Army of God. The group and others similar
to it have engaged in a long campaign of violence.
In 1994, we passed the Freedom of Access to Clinic Entrances, called
FACE, which established Federal criminal and financial penalties for
those who employed violence to prevent persons from obtaining or
providing reproductive health services. The FACE Act is essential to
protecting the lives of women and health care providers.
Unfortunately, some of the people charged under this act are filing
for bankruptcy to avoid accountability for their illegal acts of
terrorism. As an example, defendants in the so-called Nuremburg files
case have tried to nullify years of court proceedings by filing a
chapter 7 proceedings.
[[Page S2214]]
What are the Nuremburg files? Listen to this one: They posted on a
Web site the names, addresses, and license plate numbers of people who
worked in these health care facilities. They even posted pictures of
their target's families, all members, and they would list them--father,
son, mother, brother, whatever it might be--and places where their
children waited for the school bus. Doctors who still worked appeared
in plain text on the Web site, a person who had been wounded was grayed
out; and those who had been murdered, including Dr. Slepian, had a line
through their names.
It is intolerable that the groups which incite these heinous acts of
violence can discharge their civil penalties in bankruptcy, but that is
exactly what happened. If we want to prevent future acts of violence,
including clinic violence, it seems to me that we need to have a
specific provision in the bankruptcy law to prevent discharge of
violence-related debts. That is what this amendment is all about.
I do not support abortion, but this amendment is not about abortion.
It is about holding responsible those who commit illegal acts and
believe that they are above the law. This amendment is about preserving
the rule of law.
I cannot imagine how this amendment is causing a concern or a
problem. Are we now to believe that there are people who are telling
members of the majority, do not do this, we want to go and commit acts
of violence, we want to commit crimes, and do not vote against us
because you will prevent us from filing bankruptcy? That is what this
is all about. Should not we as a body say that if one goes out and does
these terrible acts, where they kill people, they maim people--one of
their latest tricks is they figured out this acid which is some kind of
a chemical compound, and they walk into these facilities and they throw
it all over. It cannot be washed out. It cannot be steamed out. The
only thing one can do is tear the facility down. Should they not be
held responsible?
I cannot believe we are going to have a bill as important as this
bankruptcy bill jeopardized because of the terrorists who are out there
waiting to file bankruptcy. That is what this is all about. People are
out there wanting to commit crimes, waiting to commit crimes, saying,
do not pass this because if you pass it I will not be able to file
bankruptcy. I just think it is beyond my ability to comprehend that
people who know they are violating the law, they are killing people,
they have this Web site that they are soliciting murder.
And we are going to condone this activity under the guise that this
is a choice, this is a pro-life/pro-choice issue and we cannot get
involved. This is not about abortion. It is about maintaining the law.
I am so disappointed that the majority is going to go along with the
ability of people to commit crimes and terror and discharge them in
bankruptcy.
The PRESIDING OFFICER. Who yields time? The Senator from New York.
Mr. SCHUMER. Mr. President, what is the status of the time on both
sides?
The PRESIDING OFFICER. The majority has 11 minutes remaining. The
Senator from New York has the last 5 minutes.
Mr. GRASSLEY. Mr. President, I rise in strong opposition to the
Schumer amendment which would make debts incurred in connection with
violations of the Freedom of Access to Clinic Entrances Act
nondischargeable in bankruptcy. This amendment has been a poison pill
to enactment of the bankruptcy bill and must be defeated.
On two previous occasions, CRS performed research for us and told us
that FACE debts had never been discharged in bankruptcy. Just recently,
I asked CRS to perform an updated search on reported decisions
considering the dischargeability of liability incurred in connection
with violence at reproductive health clinics by abortion protesters.
CRS confirmed that this amendment is not necessary. The CRS memo
identified only one reported case, which found the debt to be
nondischargeable under the bankruptcy law's discharge exception for
willful and malicious injury. So this amendment is not necessary. Even
Senator Schumer's own witness at the Senate Judiciary Committee hearing
on the bankruptcy bill testified that in all the cases that she had
litigated, the court had always found that the debts incurred under the
FACE Act were nondischargeable in bankruptcy.
My colleagues make a big deal out of the fact that some of us on this
side have supported amendments similar to this one before. The truth
is, when the Schumer abortion amendment was offered in 1999 to the
comprehensive bankruptcy bill, Vice President Gore was campaigning for
the Democrat nomination. His opponent, Senator Bradley, was alleging
that Vice President Gore was not sufficiently pro-choice. Vice
President Gore's allies in the Senate were maneuvering to create a tie
vote on the Schumer amendment so Gore could ``break the tie'' to
improve his political standing.
To avoid this, most Republicans voted in favor for the Schumer
amendment. Thus, that vote in the 106th Congress was not a vote on the
merits of the Schumer amendment.
The Schumer amendment was included in the 107th Congress bankruptcy
bill. But the fact is that in the 107th Congress, the Schumer amendment
killed the bankruptcy conference report because the House would not
take it. Thus, the Schumer amendment is a poison pill and must be
defeated.
Let me reiterate that in two previous memos, CRS concluded that the
Schumer amendment is unnecessary because abortion protester debts are
already not dischargeable in bankruptcy. We have just updated this
research and CRS has confirmed that FACE Act violations are not
dischargeable in bankruptcy. The proponent's own witness testified
before the Judiciary Committee that none of these debts have ever been
discharged in bankruptcy. The reality is that the Schumer amendment is
just a political ploy designed to generate opposition to the bankruptcy
bill. The Schumer amendment is a poison pill which will kill the
bankruptcy bill. This amendment must be defeated, and I urge my
colleagues to oppose it.
The PRESIDING OFFICER. Does the Senator from Iowa ask unanimous
consent to yield back the remaining time?
Mr. GRASSLEY. Yes.
The PRESIDING OFFICER. The Senator from New York is recognized for
his final 5 minutes.
Mr. SCHUMER. Mr. President, in conclusion, I would like to rebut some
of the comments of my colleague from Utah who said this amendment was
not necessary, and he talked about Maria Vullo, the lawyer who
represented the clinic in the Nuremberg files case.
Here is the major point. She did not collect any money in that case.
Despite spending $1 million of her own money, pro bono, despite
relitigating in six bankruptcy courts, she was unable to collect any
dollars. This is the point we are making. Perhaps at the end of the day
you will get a nominal victory if you go all around the country chasing
these fanatics in bankruptcy court, but you cannot collect. That is why
the American Coalition of Life Activists, a violent fringe anti-choice
group, actually requires its leaders to be judgment proof.
Here is the bottom line: This amendment, which was supported by so
many on the other side, is being dropped, not because it is wrong but
for expediency, so there will not have to be a bloody battle in the
House between those who are on the Republican side, between those who
are more probusiness and those who are vehemently opposed to this
amendment. I will not denigrate the pro-life movement by labeling them
that way because the pro-life movement cannot be for these violent
groups.
This amendment is for the rule of law. This amendment says you cannot
use violence against any group to achieve a political end and then,
when you are sued civilly, use the bankruptcy courts for protection.
That has never been what the bankruptcy courts were intended to be. It
is neutral on terms of what issue. Yes, it might be extremists who are
against abortion. It also might be extremists on the left side, on the
environmental side who burn buildings or houses or cars. Are we going
to, as a society, condone that type of activity?
I will tell you, if we defeat this amendment, that is what we are
doing. Make no mistake about it, make no mistake about any of the
subterfuges. To me, this amendment and the rule of
[[Page S2215]]
law and the American way of life that this amendment stands for are
more important than the rest of the bankruptcy bill.
The bankruptcy bill, whether you are for it or not, twists the dials
a little bit with regard to the balance between creditors and debtors.
I assure you that was not on the Founding Fathers' minds when they
wrote the Constitution and created the Republic.
What this amendment does goes right to the heart of what America is
all about. It says those who use violence to achieve their political
goals cannot get a benefit, in this case bankruptcy. It, in my
judgment, as I said, is more important than the rest of the bill.
So I ask my colleagues on the other side to rise to the occasion. Do
not let arguments of expediency persuade you. That is the slow road to
oblivion. That is the tortured path to undoing step by step, bit by
bit, as the river creates a canyon, the way of life that we love. No
matter how strongly one feels about something, their job is to persuade
others to their viewpoint, not to take the law into their own hands and
use violence. And if they do, they should not be allowed to use the
Bankruptcy Code or anything else to prevent just civil or criminal
action against them.
I ask my colleagues to look into their hearts, to examine what this
amendment does, and to have the same courage--courage of conviction and
courage of a fair compromise--that we showed a few years ago. I urge
support of this amendment.
I yield the floor.
Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to amendment No. 47 offered by the
Senator from New York. The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New Jersey (Mr. Corzine)
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 46, nays 53, as follows:
[Rollcall Vote No. 28 Leg.]
YEAS--46
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Cantwell
Carper
Chafee
Clinton
Collins
Conrad
Dayton
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Jeffords
Johnson
Kennedy
Kerry
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Mikulski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sarbanes
Schumer
Snowe
Specter
Stabenow
Wyden
NAYS--53
Alexander
Allard
Allen
Bennett
Bond
Brownback
Bunning
Burns
Burr
Byrd
Chambliss
Coburn
Cochran
Coleman
Cornyn
Craig
Crapo
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lott
Lugar
Martinez
McCain
McConnell
Murkowski
Nelson (NE)
Roberts
Santorum
Sessions
Shelby
Smith
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NOT VOTING--1
Corzine
The amendment (No. 47) was rejected.
Mr. McCONNELL. I move to reconsider the vote.
Mr. REID. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Mr. HATCH. Mr. President, in a few hours we will be voting on cloture
for this bill. I would just like to take a minute or two and remind
everyone why it is time to end the debate on this bill.
It has been 8 long years of consideration on this legislation. We
have all compromised a great deal. Not everyone got their preferred
language or amendments. Not everyone is happy with the current
legislation.
But I think everyone would have to agree that we have given
thoughtful consideration and fair opportunity to all suggestions on the
bill throughout the years of debate.
Over the years, we modified the homestead exemption.
We modified the means test.
We provided for sanctioning attorneys who file abusive claims.
And we hindered creditors who would try to collect through predatory
lending practices.
All of these changes, among scores of others, came from my Democratic
colleagues.
After all this, just 2 weeks ago, we took 5 more Democratic
amendments in the Judiciary Committee markup.
And yet almost everyone of the pending amendments today touches upon
the areas where we have previously compromised.
At a certain point, the time comes to move forward with what we have.
Given how far we have come on this bill already over the last 8 years,
and considering all the compromises that have been made, we may get no
bankruptcy bill at all if we try to take more amendments.
The lopsided votes in favor of this bill in the past--with 70, 83,
and even 97 votes in this Chamber--reveal that we are left with only a
small minority of opposition. The fact is that a large majority of this
body recognizes that we are not doing anything radical in this bill.
We simply ask that higher-income filers who can pay their bills,
should pay their bills. It is as simple as that. There is no reason to
ask the vast majority of bill-paying consumers to pickup the tab when
those with means do not repay their obligations.
After 8 long years, we have compromised every which way we can. The
remaining amendments being proposed are just further adjustments of
adjustments to adjustments that were already made during this process.
There is simply no reason to continue to holdup this bill through the
amendment process. The longer we delay, the greater the chances for
mischief. The more we stall this measure, the more likely we open it to
political, message amendments that can only act to stall work on this
bill.
A time comes when you just have to say enough is enough. Eight years
should be long enough to pass one bill.
I urge my colleagues to join me in voting for cloture.
Mr. BAUCUS. Mr. President, I want to explain my decision to oppose
closure on the Bankruptcy bill. I have offered an amendment to this
bill modeled on legislation I have introduced to set up a permanent
health care trust fund for current and former Libby residents, and
former workers at the W.R. Grace vermiculite mine in Libby, MT. The
trust fund will help pay for medical costs associated with treating
asbestos-related disease or illness caused by exposure to deadly
tremolite asbestos and other fibers released by Grace's mining
operations.
I offered this amendment to this bill because it presented an
opportunity to make whole the people of Libby, who have suffered, while
preventing a company like W.R. Grace, which has filed for bankruptcy,
from emerging from that bankruptcy without setting up a health-care
trust fund for its victims.
I have worked very hard to make sure the people of Libby, MT, are
protected in any asbestos legislation to come before Congress; to
include special provisions in an asbestos bill for Libby residents that
take into account the unique kind of health impacts associated with
exposure to the deadly asbestos fibers from the W.R. Grace vermiculite
mine.
For years, I have been committed to securing a common sense solution
for the residents of Libby. I strongly believe that too many people
have suffered, and they deserve fair compensation. I will do everything
in my power to help Libby make their community whole again and to make
sure their long-term health care needs are met. Passing bankruptcy
legislation, with consideration of my asbestos amendment is essential.
I will fight to get additional protections for Libby residents and then
work to pass the bill.
Unfortunately, we have not had an opportunity to vote on this
amendment, and it has been judged to be non-germane. The bankruptcy
bill is all about responsibility and accountability. This amendment
tries to hold W.R. Grace accountable for its actions.
[[Page S2216]]
Because we were not able to vote on this amendment, I can not support
limiting debate on this bill.
____________________