[Congressional Record Volume 151, Number 104 (Wednesday, July 27, 2005)]
[Senate]
[Pages S9059-S9086]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
PROTECTION OF LAWFUL COMMERCE IN ARMS ACT--MOTION TO PROCEED
The PRESIDENT pro tempore. Under the previous order, the Senate will
resume consideration of the motion to proceed to S. 397, which the
clerk will report.
The legislative clerk read as follows:
A bill (S. 397) to prohibit civil liability actions from
being brought or continued against manufacturers,
distributors, dealers, or importers of firearms or ammunition
for damages, injunctive or other relief resulting from the
misuse of their products by others.
The PRESIDENT pro tempore. Under the previous order, the time from 10
to 2 p.m. shall be equally divided, with the majority in control of the
first hour and the Democrats in control of the second hour, rotating in
that fashion until 2 p.m.
Recognition of the Majority Leader
The PRESIDENT pro tempore. The majority leader is recognized.
Schedule
Mr. FRIST. Mr. President, this morning we are returning to the motion
to proceed to the Protection of Lawful Commerce in Arms Act, otherwise
known as the gun manufacturers liability legislation. Yesterday we
invoked cloture on the motion to proceed. We now have an order to begin
the bill at 2 p.m. today. The debate will be equally divided until 2
o'clock today. I understand a rollcall vote will not be necessary, and
we will have a voice vote at 2 p.m. and then be on the bill.
Senators can expect a cloture vote on the underlying bill to occur on
Friday, unless we change that time by consent. As I stated repeatedly
over the last several days, we are going to have a very busy session as
we address a range of issues, including energy and highways and the
Interior funding bill, the gun manufacturers liability bill, veterans
funding, nominations, and other issues.
Just a quick update on several of these. In terms of the Energy bill,
after 5 years of hard work, the energy conferees are now done. I expect
that that legislation will be filed shortly. This is a major
accomplishment that will cause serious and dramatic changes in how we
produce, deliver, and consume energy. We simply would not be at this
point without the hard work, the perseverance, and the patience of
Senator Domenici and his partner, Senator Bingaman, as well as
Congressman Barton. We will pass that conference report this week. Our
country will be all the better for it.
I was talking to the Secretary of Energy earlier this morning. We
were discussing the absolute importance of passing this bill to
establish a framework of policy from this legislative body. He again
referred to the great good this bill will do.
On highways, it has taken this Congress 3 tough years of work to come
to this point, but with just a little more work, we will have a bill
that the President will sign. Our conferees are working and should
complete the writing of it today. I spent time with several of the
conferees yesterday and with the Speaker, as we coordinate completion
of this highway bill.
The good news for the American people is, as they see what is
sometimes confusing on the floor of the Senate as these bills come in,
this particular highway bill will make our streets and our highways
safer. It will make our economy more productive. It will create many
new jobs.
I mentioned veterans funding. Yesterday, the House and Senate
majority agreed to ensure that $1.5 billion of needed funding will be
given to the Department of Veterans Affairs this fiscal year. Veterans
can be assured that their health care will remain funded. I know it is
confusing what you hear on the floor, but that action is being taken.
I mentioned Interior funding. Yesterday both Houses agreed to fund
many of the programs that affect many of our public lands held in trust
for Americans throughout the country. We intend to complete action on
this conference report this week as well.
Late last night, the conferees completed work on the Legislative
Branch appropriations bill, and we will be attempting to clear that
legislation as well this week.
[[Page S9060]]
I mentioned all these to give my colleagues an update because there
is so much activity going on right now, in addition to the very
important legislation that is on the floor.
After several months of aggressive work, we can now look back and say
that we have brought the Cabinet full strength for the President's
second term in effect. We have accomplished very important class action
legislation, after years and years and years of delay. We finished
bankruptcy reform, which we have worked on in the Congress, both
Houses, since the late 1990s. We completed writing one of the fastest
budgets in congressional history with the goal, which we are
accomplishing, of pushing down the deficit, keeping our economy
growing, and creating jobs, funding our efforts to confront the
terrorist challenge overseas, confirming, after what was tough for us
all, many of the judicial nominees that have been held up for years.
All of that is what we have done.
Now we have the opportunity over the next 3 to 4 days of completing
action on the very necessary, very important bills which I have
mentioned--bills that will make a real difference in the everyday lives
of Americans. We are talking about funding for health care, veterans,
highways, and energy. We are demonstrating governing with meaningful
solutions to everyday problems of Americans.
These bills will affect people's lives directly, will create
opportunities for new jobs, help people to fulfill the American dreams
they might have, as well as address critical national needs. By the
time we get to the recess--I mention that because we have a long
recess. A recess is the time that we can use to go back and be with our
constituencies. We do have a long recess in August. I say that to
preface how important it is that we complete all of our work this week.
The American people expect us to complete action on the items I have
mentioned. There is a tendency to think the recess is going to start
maybe a day early. It certainly looks like, because we are going to be
so busy, that we will be working through Friday of this week. I will be
in constant consultation with the Democratic leader. We will have the
opportunity to talk several times throughout the day.
At this point, we cannot rule out a Saturday session, if it is
absolutely necessary. I think we can finish our work earlier, but we
simply can't rule out a Saturday session at this point.
I do ask for Members to keep their schedules flexible until we get
through this legislative calendar. We will in a bipartisan way have a
lot to be proud of once we leave for our August recess.
Health Care
Mr. President, most of what I have said has to do with
accomplishments, challenges, and schedule. I want to turn to an issue
that I care passionately about, an issue that most, if not all
Americans, care about, and that is health care.
As I travel around the country, in part because I am a physician but
in larger part because of the reality of the problem, the cost of
health care, as well as the safety and quality of health care, is among
the first and foremost issues on the minds of the American people. They
want us to lower the cost. You do that by improving quality and getting
rid of waste, and we are doing just that.
I am pleased to report that after years of challenging work,
difficult work, and a lot of negotiation among ourselves on both sides
of the aisle, the House is expected to join the Senate in passing a
bill called the Patient Safety and Quality Improvement Act. I am
hopeful they will pass that bill today. We passed it not too long ago.
I mention it because it focuses on getting waste out of the system, and
it does so by putting the emphasis on patients.
A patient-centered system is what I strongly believe we need to move
to in the future. This does just that. Patient safety is something that
concerns me. We have an obligation, as physicians, as nurses, as the
health care sector, but also as a public policy body, to make sure that
patient safety is maximized. People say: Of course, you do. But if you
look back at the Institute of Medicine's report not too long ago that
really started a lot of this debate, they estimated that up to 98,000
deaths are caused each year by medical errors. That would make medical
errors, that are occurring every day in hospitals and clinics, and even
at home when people are taking medicines, the eighth leading cause of
death each year. That is more than car accidents, HIV/AIDS, or breast
cancer. People dispute the number. Is it 98,000? Is it 125,000? Is it
75,000? The exact number doesn't matter. The fact that there are
thousands and thousands of needless deaths being caused is inexcusable.
This body has acted. The House will act. And I am hopeful the President
will be able to sign that important legislation in the next several
days.
What is so obvious to me as a physician, having spent 20 years in the
medical arena, every day in the healing profession, is that the tragedy
of all these deaths is compounded by the fact that these deaths and the
many errors that result in prolonged hospitalization, more misery,
greater cost, can be prevented, can absolutely be prevented. Simple
reporting procedures, sharing of information, improved technology, a
systems approach--all can reduce these preventable errors, and thereby
improve hundreds of thousands of lives and actually save tens of
thousands of lives.
So people ask, What is the problem? The fear of litigation has kept
many health care providers--doctors, nurses, and lab technicians in the
hospitals--from sharing information if a mistake is inadvertently made.
Everybody makes mistakes, but if you have a mistake that is made, you
need to be able to share it with people so you can develop a system to
keep it from happening in the future. We all do that in our everyday
lives.
For example, in hospitals, there is a tendency not to do that because
if you share your mistake, there is a predatory trial lawyer who will
swoop in and find that error and take you to court and destroy you and
the system. It is human nature to say, if that is the case, Yes, I made
a mistake, I will improve, but I am not going to share it because it
will destroy my future. People are afraid of sharing their internal
data, such as their collection of reporting of infections that could
have been prevented with preventable techniques or a medical error that
might expose them to a ruinous lawsuit. That drives the reporting of
these medical errors underground.
The bill will change all of that, and it will lift this threat of
litigation and allow health care providers, doctors, nurses, and other
health care professionals to share information and to develop effective
solutions and to develop effective systems whereby those mistakes will
never occur again. That is the way this patient safety bill will
improve lives but also save lives of tens of thousands of people.
This type of nonpunitive reporting isn't new. I began flying small
planes fairly young, when I was a teenager. Over the years, I have
watched how self-reporting in that field has revolutionized safety in
general aviation, private aviation, and in the airline industry as
well. In 1975, I had been flying for about 7 years. I remember it
because it was a big deal at the time. Similar to what we are doing now
with the patient safety bill, the FAA established a system called the
Aviation Safety Reporting System. It encouraged everyone in the
aviation system--mechanics, pilots, air traffic controllers, flight
attendants, and the general public--to voluntarily report--I remember
the blue cards you reported on--potential or actual safety problems,
and you could do so without fear of recrimination.
That is why this voluntary aspect is so important. Because that
information in the aviation field was shared internally and with
others, accidents went down and overall safety went up dramatically.
Everyone improved. Quality improved and safety improved by learning
from others.
The patients safety bill that is before the House of Representatives
today--the same bill that passed in this body last Thursday--promises
exactly the same kind of benefits, in parallel, that were passed in
1975, and this is 2005, 30 years later than it should have been. Under
the provisions of this act, hospitals and physicians and other health
professionals will be able to share this information about their
practices with independent PSOs, or patient safety organizations,
without the fear of lawsuits, and this transparency will improve
quality.
America has the absolute best health care in the world. I have seen
it by
[[Page S9061]]
doing heart transplants, using the best of lasers to resect tumors out
of the trachea or windpipe, and with developing ventricular assist
devices. I was in Tanzania some weeks ago working at a small clinic out
in the bush, and when you look back at America, we have the most
advanced health care in the world, with new treatments and techniques,
improving millions of lives every day.
Through this bill, we are putting that same sort of American
ingenuity to work in improving patient safety in hospitals and clinics
and thus getting rid of waste and improving the overall quality of
care. This bill is a major step forward to making health care safer and
less costly, driving up the quality, driving down costs, and getting
out the waste.
I can tell you, this is the first major health bill in this Congress.
But I hope in the very near future we will pass other important
legislation we are working on in a similarly bipartisan way--namely,
information technology to have privacy-protected, electronic medical
records available to everybody who wants it. It is a bipartisan effort.
We have come a long way, and I am hopeful that we can do that in the
near future.
We are establishing interoperability standards--working with the
private sector to establish interoperability standards which will allow
the 6,000 hospitals and 900,000 physicians out there to be able to
communicate in a seamless way, with privacy-protected information.
Again, it is another bill that would get rid of waste, drive down the
cost of health care, and improve quality.
I am excited about these health initiatives. I thank my colleagues
who have specifically been involved in this bill, including Chairman
Mike Enzi, Senator Judd Gregg, Senator Jim Jeffords, who has been at it
as long as anybody--this particular bill on patient safety--and, of
course, Senator Ted Kennedy. On the House side, Chairman Joe Barton and
ranking member John Dingell have done a tremendous job as well
shepherding through, the Patient Safety and Quality Improvement Act. We
are saving lives and moving American medicine forward.
Mr. President, I suggest the absence of a quorum.
The PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CRAIG. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDENT pro tempore. Without objection, it is so ordered.
Mr. CRAIG. Mr. President, I understand that the Republican side has
from 10 until 11, is that correct, under the unanimous consent
agreement?
The PRESIDENT pro tempore. That is correct. The first hour is under
the control of the majority, the second hour is under the control of
the minority, and it reverts back to the majority and then the
minority.
Mr. CRAIG. Mr. President, I send to the desk a list of 61 cosponsors
of S. 397, the Protection of Lawful Commerce in Arms Act that is
currently pending before the Senate, and I ask unanimous consent that
it be printed in the Record.
There being no objection, the material was ordered to be
printed in the Record, as follows:
Cosponsors, By Date
Sen. Baucus, Max [D-MT]--2/16/2005*, Sen. Bunning, Jim [R-
KY]--2/16/2005*, Sen. Chambliss, Saxby [R-GA]--2/16/2005*,
Sen. Collins, Susan M. [R-ME]--2/16/2005*, Sen. Craig, Larry
[R-ID], Sen. Crapo, Mike [R-ID]--2/16/2005*, Sen. Ensign,
John [R-NV]--2/16/2005*, Sen. Hutchison, Kay Bailey [R-TX]--
2/16/2005*, Sen. Isakson, Johnny [R-GA]--2/16/2005*, Sen.
Kyl, Jon [R-AZ]--2/16/2005*, Sen. Murkowski, Lisa [R-AK]--2/
16/2005*, Sen. Santorum, Rick [R-PA]--2/16/2005*, Sen. Snowe,
Olympia J. [R-ME]--2/16/2005*, Sen. Thomas, Craig [R-WY]--2/
16/2005*, Sen. Sununu, John E. [R-NH]--2/16/2005*, Sen.
Vitter, David [R-LA]--2/17/2005, Sen. DeMint, Jim [R-SC]--3/
1/2005.
Sen. Dorgan, Byron L. [D-ND]--3/1/2005, Sen. Gregg, Judd
[R-NH]--3/1/2005, Sen. Hatch, Orrin G. [R-UT]--3/1/2005, Sen.
Frist, William H. [R-TN]--3/3/2005, Sen. Graham, Lindsey [R-
SC]--3/4/2005, Sen. Cochran, Thad [R-MS]--3/9/2005, Sen.
Shelby, Richard C. [R-AL]--3/9/2005, Sen. Burr, Richard [R-
NC]--3/10/2005, Sen. Specter, Arlen [R-PA]--3/14/2005, Sen.
Pryor, Mark L. [D-AR]--3/16/2005, Sen. Roberts, Pat [R-KS]--
3/17/2005, Sen. Bennett, Robert F. [R-UT]--4/12/2005, Sen.
McCain, John [R-AZ]--7/21/2005, Sen. Byrd, Robert C. [D-WV]--
7/25/2005, Sen. Alexander, Lamar [R-TN]1--2/16/2005*, Sen.
Burns, Conrad R. [R-MT]--2/16/2005*, Sen. Coburn, Tom [R-
OK]--2/16/2005*.
Sen. Cornyn, John [R-TX]--2/16/2005*, Sen. Domenici, Pete
V. [R-NM]--2/16/2005*, Sen. Enzi, Michael B. [R-WY]--2/16/
2005*, Sen. Inhofe, James M. [R-OK]--2/16/2005*, Sen.
Johnson, Tim [D-SD]--2/16/2005*, Sen. Lincoln, Blanche L. [D-
AR]--2/16/2005*, Sen. Nelson, E. Benjamin [D-NE]--2/16/2005*,
Sen. Sessions, Jeff [R-AL]--2/16/2005*, Sen. Stevens, Ted [R-
AK]--2/16/2005*, Sen. Thune, John [R-SD]--2/16/2005*, Sen.
Allen, George [R-VA]--2/17/2005, Sen. Landrieu, Mary L. [D-
LA]--2/17/2005, Sen. Dole, Elizabeth [R-NC]--3/1/2005, Sen.
Grassley, Chuck [R-IA]--3/1/2005, Sen. Hagel, Chuck [R-NE]--
3/1/2005.
Sen. Lott, Trent [R-MS]--3/2/2005, Sen. Talent, Jim [R-
MO]--3/3/2005, Sen. Allard, Wayne [R-CO]--3/7/2005, Sen.
Martinez, Mel [R-FL]--3/9/2005, Sen. Brownback, Sam [R-KS]--
3/10/2005, Sen. Bond, Christopher S. [R-MO]--3/14/2005, Sen.
McConnell, Mitch [R-KY]--3/15/2005, Sen. Coleman, Norm [R-
MN]--3/16/2005, Sen. Voinovich, George V. [R-OH]--4/12/2005,
Sen. Smith, Gordon H. [R-OR]--4/27/2005, Sen. Salazar, Ken
[D-CO]--7/21/2005, Sen. Rockefeller, John D. [D-WV]--7/26/
2005.
Mr. CRAIG. Mr. President, the reason I sent that list of cosponsors
to the desk is to demonstrate to all of our colleagues that 61
Senators--60 plus myself--are now in support of the legislation that is
pending before the Senate that we will move to active consideration of
this afternoon at 2 o'clock. I think it demonstrates to all of us the
broad, bipartisan support this legislation has and a clear recognition
that the time for S. 397 has arrived.
This legislation prohibits one narrow category of lawsuits: suits
against the firearms industry for damages resulting from the criminal
or unlawful misuse of a firearm or ammunition by a third party.
It is very important for everybody to understand that it is that and
nothing more. These predatory lawsuits are aimed at bankrupting the
firearms industry. The courts of our Nation are supposed to be a forum
for resolving controversies between citizens and providing relief where
it is warranted, not a mechanism for achieving political ends that are
rejected by the people's representatives, the Congress of the United
States.
Time and time again down through history, that rejection has occurred
on this floor and the floor of the other body.
Interest groups, knowing that clear well, have now chosen the court
route to attempt to destroy this very valuable industry in our country.
Over two dozen suits have been filed on a variety of theories, but
all seek the same goal of forcing law-abiding businesses selling a
legal product to pay for damages from the criminal misuse of that
product. I must say, if the trial bar wins here, the next step could be
another industry and another product.
While half of these lawsuits have already been fully and finally
dismissed, other cases are still on appeal and pending. Hundreds of
millions of dollars are still being spent. The bill would require the
dismissal of existing suits, as well as future suits that fit this very
narrow category of description. It is not a gun industry immunity bill
because it does not protect firearms or ammunition manufacturers,
sellers, or trade associations from any other lawsuits based on their
own negligence or criminal conduct.
This bill gives specific examples of lawsuits not prohibited--product
liability, negligence or negligent entrustment, breach of contract,
lawsuits based on violations of States and Federal law. And yet, we
already heard the arguments on the floor yesterday, and I am quite
confident we will hear them again and tomorrow, that this is a sweeping
approach toward creating immunity for the firearms industry.
I repeat for those who question it, read the bill and read it
thoroughly. It is not a long bill. It is very clear and very specific.
The trend of abusive litigation targeting the firearms industry not
only defies common sense and concepts of fundamental fairness, but it
would do nothing to curb criminal gun violence. Furthermore, it
threatens a domestic industry that is critical to our national defense,
jeopardizes hundreds of thousands of good-paying jobs, and puts at risk
access Americans have to a legal product used for hundreds of years
across this Nation for lawful purposes, such as recreation and self-
defense.
Thirty-three States enacted similar gun lawsuit bans or civil
liability protection. In other words, already 33
[[Page S9062]]
States, because of our silence, have felt it necessary to speak up to
protect law-abiding citizens from this misuse of our courts.
Yesterday, opponents repeatedly charged that negligent businesses and
people would be let off the hook by this bill. It was even stated that
this bill would bar virtually all negligence and product liability
cases in States and Federal courts. I repeat, nothing can be further
from the truth. For those who come to this floor to make that charge,
my challenge to them is to read the bill. Obviously they have not. They
are simply following the script of the anti-gun community of this
Nation. That is not fair to Senators on this floor to be allowed to
believe what this legislation simply does not do nor does it say.
The bill affirmatively allows lawsuits brought against the gun
industry when they have been negligent. The bill affirmatively allows
product liability action. Any manufacturer, distributor, or dealer who
knowingly violates any State or Federal law can be held civilly liable
under the bill. This bill does not shut the courthouse door.
Under S. 397, plaintiffs will have the opportunity to argue that
their case falls under the exception, such as violations of Federal and
State law, negligent entrustment, knowingly transferring to a dangerous
person. That is what that all means, that you have knowingly sold a
firearm to a person who cannot legally have it or who you have reason
to believe could use it for a purpose other than intended. That all
comes under the current definition of Federal law.
Breach of contract or the warranty or the manufacture or sale of a
defective product--these are all well-accepted legal principles, and
they are protected by this bill. Current cases where a manufacturer,
distributor, or dealer knowingly violates a State or Federal law will
not be thrown out.
Opponents have complained about the Senate considering this bill at
the same time and even have impugned the motives of the Senators who
support it. The votes yesterday speak for themselves. Sixty-six
Senators said it is time we got this bill before the Senate, and that
is where we are today. When a supermajority of the Senate speaks, there
is no question that the Senate moves, as it should, in that direction.
The Senate could not muster the votes needed to invoke cloture on the
Defense authorization bill which would have moved us to a final vote on
that measure possibly by tonight. But the Senate, as I have said, by a
wide margin spoke yesterday to the importance of dealing with this
issue. Sixty-six Senators said let's deal with it now, and I have just
sent to the desk 61 signatures of the cosponsors of this bill that
demonstrate broad bipartisan support.
I think it is appropriate to consider all of this in the context of
the Defense authorization bill because the reckless lawsuits we are
seeking to stop are aimed at businesses that supply our soldiers, our
sailors, and our airmen with their firepower. Stop and think about it.
Would there ever be a day when all of our military would be armed with
weapons manufactured in a foreign nation? There are many in this
country, in driving or attempting to drive our firearm manufacturers
from this country, who would have it that way.
Clearly, it is within the appropriate context as we deal with Defense
authorization that we ought to be talking about the credibility and the
assurance we are able to sustain the firearm manufacturing industry in
this country. In fact, the United States is the only major world power
that does not have a firearm factory of its own. That is something that
simply ought not be tolerated. Thirty-eight of our colleagues of both
parties signed on to a letter to Majority Leader Frist making this very
point: the importance of protecting America's small firearms industries
against reckless lawsuits.
I would read from that letter, but I see that my colleague from
Oklahoma is now on the floor wishing to discuss this legislation.
Mr. President, I yield the floor in recognition of Senator Coburn.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Oklahoma.
Mr. COBURN. Mr. President, first, I thank the Senator from Idaho for
his unwavering faithfulness to the Constitution and upholding his oath
as a Senator, as a Member of this body.
The Bill of Rights is important to us, and I rise today in support of
that Bill of Rights and, in particular, the second amendment. Not only
do I believe the right to bear arms is guaranteed by the U.S.
Constitution, I exercise that right personally as a gun owner. I stand
on behalf of the people of Oklahoma who adamantly believe in the second
amendment and the right to carry arms and against the attack on that
right by the frivolous lawsuits that have come about of late.
We have seen many attempts to curtail the second amendment. Nearly a
decade ago anti-gun activists tried to limit the right of law-abiding
citizens under the banner of ``terrorism'' legislation by slipping in
anti-gun provisions.
In another line of attack, the anti-gun lobby responded to decreasing
enthusiasm for limiting handguns by promoting a new form of gun
control--a cosmetic ban on guns labeled with the inflammatory title
``assault weapons.'' While that ban expired in 2004, we will likely see
Members of this body attempt to add a renewal and expansion of that ban
on this bill today.
Now anti-gun activists have found another way to constrict the right
to bear arms and attack the Bill of Rights and attack the Constitution,
and that is through frivolous litigation. They have not succeeded in
jailing thousands of law-abiding Americans for having guns, or making
the registration and purchase process so onerous that nobody bothers to
buy a gun. They have failed to get their cosmetic weapons ban renewed.
So now they must attack the arms industry financially through
lawsuits--frivolous lawsuits, I might say.
This is why we are here today--to put a stop to the unmeritorious
litigation that threatens to bankrupt a vital industry in this country.
As an important aside, I strongly believe it is important that we not
write legislation that provides immunity for an industry that knowingly
harms consumers.
It is also important that those who commit crimes, with or without
the use of firearms, should be punished for their actions. I have
always been a strong supporter of tough crime legislation. However,
make no mistake, the lawsuits that will be prohibited under this
legislation are intended to drive the gun industry out of business.
With no gun industry, there is no second amendment right because there
is no supply.
These lawsuits against gun manufacturers and sellers are not directed
at perpetrators of crime. Instead, they are part of a stealth effort to
limit gun ownership, and I oppose any such effort adamantly.
Anti-gun activists have failed to advance their agenda at the ballot
box. They failed to advance their agenda in the legislatures.
Therefore, they are hoping these cases will be brought before
sympathetic activist judges--activist judges--who will determine by
judicial fiat that the arms industry is responsible for the action of
third parties.
Additionally, trial lawyers are working hand in glove with the anti-
gun activists because they see the next litigation cash cow, the next
cause of action that will create a fortune for them in legal fees.
As a result of some of the efforts of the anti-gun activists and some
trial lawyers, the gun manufacturing and sales industry face huge costs
that arise from simply defending unjustified lawsuits, not to mention
the potential of runaway verdicts. This small industry has already
experienced over $200 million in such charges. Even one large verdict
could bankrupt an entire industry.
Since 1988, individuals and municipalities have filed dozens of novel
lawsuits against members of the firearms industry. These suits are not
intended to create a solution. They are intended to drive the gun
industry out of business by holding manufacturers and dealers liable
for the intentional and criminal act of third parties over whom they
have absolutely no control.
In testimony before a House subcommittee in 2005, the general counsel
of the National Shooting Sports Foundation, Inc., said:
I believe a conservative estimate of the total, industry-
wide cost of defending ourselves to date now exceeds $200
million.
[[Page S9063]]
What does that produce in our country other than waste and abnormal
enrichment of the legal system?
This is a huge sum for a small industry such as the gun industry. The
firearms industry taken together would not equal the value of a Fortune
500 company.
The danger that these lawsuits could destroy the gun industry is
especially threatening because our national security and our civil
liberties are at stake.
First, the gun industry manufactures firearms for America's military
forces and law enforcement agencies, the 9, the 11. Due in part to
Federal purchasing rules these guns are made in the U.S. by American
workers. Successful lawsuits could leave the U.S. at the mercy of small
foreign suppliers.
Second, by restricting the gun industry's ability to make and sell
guns and ammunition, the lawsuits threaten the ability of Americans to
exercise their second amendment right to bear arms.
Finally, if the firearms industry must continue to spend millions of
dollars on litigation or eventually goes bankrupt, thousands of people
will lose their jobs. Secondary suppliers to gunmakers will also have
suffered and will continue to suffer.
This is why it is not surprising that the labor unions, representing
workers at major firearms plants, such as the International Association
of Machinists and Aerospace Workers in East Alton, IL, support this
bill. This union's business representatives stated that the jobs of
their 2,850 union members ``would disappear if trial lawyers and
opportunistic politicians get their way.''
The economic impact of this problem may be felt in other ways. In my
home State of Oklahoma, hunting and fishing creates an enormous
economic impact. It is tremendously positive. Hunters bring in retail
sales of over $292 million per year; 6,755 jobs in Oklahoma are
dependent on hunting; $137,122,000 in salaries and wages in Oklahoma
alone; and $22 million in State sales tax per year. The financial
insolvency of gun manufacturers and sellers would have a devastating
effect on my State and many other States similar to Oklahoma.
Insurance rates for firearm manufacturers have skyrocketed since
these suits began, and some manufacturers are already being denied
insurance and seeing their policies canceled, leaving them unprotected
and vulnerable to bankruptcy.
That is the ultimate goal of these suits--bankruptcy and the
elimination of this arms industry. Because of that, 33 State
legislatures have acted to block similar lawsuits, either by limiting
the power of localities to file suit or by amending State product
liability laws. However, it only takes one lawsuit in one State to
bankrupt the entire industry, making all of those State laws
inconsequential. That is why it is essential that we pass Federal
legislation.
Additionally, plaintiffs in these suits demand enormous monetary
damages and a broad variety of injunctive relief relating to the
design, the manufacture, the distribution, the marketing, and the sale
of firearms.
Some of their demands: One-gun-a-month purchase restrictions not
required by State laws; requiring manufacturers and distributors to
``participate in a court-ordered study of lawful demand for firearms
and to cease sales in excess of lawful demand; ``prohibition on sales
to dealers who are not stocking dealers with at least $250,000 of
inventory--in other words, we are going to regulate how much you have
to have in inventory before you can be a gun seller; a permanent
injunction requiring the addition of a safety feature for handguns that
will prevent their discharge by ``those who steal handguns''; and a
prohibition on the sales of guns near Chicago that by their design are
unreasonably attractive to criminals.
These lawsuits are frivolous. Anti-gun activists want to blame
violent acts of third parties on manufacturers of guns for simply
manufacturing guns and sellers of guns for simply selling them. This
doesn't make any sense. This would be the equivalent of holding a car
dealer responsible for a person who intentionally runs down a
pedestrian simply because the car that was sold by the dealer was used
by a third party to commit negligent homicide.
Guns, like many other things, can be dangerous in the wrong hands.
The manufacturer or seller of a gun who is not negligent and obeys all
applicable laws should not be held accountable for the unforeseeable
actions of a third party. This is a country based on personal
accountability, and when we start muddying that aspect of our law and
culture we will see all sorts of unintended consequences.
Most of the victims of gun injuries I have seen in the emergency room
as a practicing physician were people who were intentionally shot by
other people. The gun was the mechanism that was used, but it was the
individual who carried out that act. The gun was a tool. Should we ban
all tools that are capable of committing homicide or committing injury?
These people were not injured by defective guns or defective
ammunition. The individuals who shot these patients deserve aggressive
prosecution, not the industry that made the guns or the legal sellers
of the guns. Even when I treated individuals who injured themselves
with guns, these tragedies were accidents. It was not part of a quality
or product defect. It was an act of stupidity on the part of people.
Part of our freedom comes with the ability to make wise choices. If we
limit our ability to make choices, then we limit our freedom.
These lawsuits are part of an anti-gun activist effort to make an end
run around the legislative system. We have seen that in multiple areas
in our country. When you can't pass it in the legislature, you get an
activist judge to get done what you wanted to do in the first place,
even though a majority of Americans and a majority of legislatures
don't want it. But one judge decides for the rest of us.
We are coming up on a judicial nomination for the Supreme Court. One
of the questions that has to be asked is what is the proposal, What is
the role in terms of judges making law rather than interpreting law? It
will be a key question.
So far judges have not been convinced by their arguments. Here are a
few examples. The Louisiana Supreme Court struck down the right of New
Orleans to bring a suit in the face of a State law forbidding it, in an
opinion stating clearly:
This lawsuit constitutes an indirect attempt to regulate
the lawful design, manufacture, marketing and sale of
firearms.
Judge Berle M. Schiller of the U.S. District Court for the Eastern
District of Pennsylvania struck the nail on the head when dismissing
all of Philadelphia's allegations, stating that ``the city's action
seeks to control the gun industry by litigation, an end the city could
not accomplish by passing such an ordnance.''
The Delaware Superior Court adeptly stated that ``the Court sees no
duty on the manufacturer's part that goes beyond their duties with
respect to design and manufacture. The Court cannot imagine that a
weapon can be designed that operates for law-abiding people but not for
criminals.''
A word of caution. Most new tort ideas took a while to work. All it
would take is one multimillion-dollar lawsuit to severely damage this
industry. This bill is limited in scope. It protects only licensed and
law-abiding firearms and ammunition manufacturers and sellers from
lawsuits that seek to hold manufacturers and sellers responsible for
the crime that third party criminals commit with their nondefective
products.
Manufacturers and sellers are still responsible for their own
negligent or criminal conduct and must operate entirely within the
Federal and State laws.
Firearms and ammunition manufacturers or sellers may be held liable
for negligent entrustment or negligence per se; violation of a State or
Federal statute applicable to the sale or marketing of the product
where the violation was the proximate cause of the harm for which
relief is sought; breach of contract or warranty; and product defect.
They still are responsible for all that through this bill. It takes
none of that away. It holds personal accountability solid and
steadfast. It does not infringe on it. Claimants may still go to court
to argue that their claims fall under one of the exceptions.
In my opinion, gun manufacturers and sellers are already policed
enough, too much, through hundreds of pages of
[[Page S9064]]
statutes, hundreds of pages of regulations. To name a few sources of
regulations of guns and ammunition: the Internal Revenue Code,
including the National Firearms Act postal regulations restricting
shipping of handguns; Federal explosive law; regulations for gunpowder
and ammunition manufacture; the Arms Export Control Act; the Commerce
Department export regulations; the Department of Transportation
regulations on ammunition explosives and hazardous material transport.
In addition to keeping explicit records that can be inspected by
BATF, the Bureau of Alcohol, Tobacco, Firearms, and Explosives,
licensed dealers have to conduct a Federal criminal background check on
their retail sales either directly by the FBI through its national
instant criminal background check or through State systems that also
use the NICS system. All retail gun buyers are screened to the best of
the Government's ability.
Additionally, the industry has voluntary programs to promote safe gun
storage and to help dealers avoid sales to potential illegal
traffickers.
Manufacturers also have a time-honored tradition of acting
responsibly to make recalls or make repairs as they become aware of
product defects.
In the past, Congress has found it necessary to protect other
classes; for example, the light aircraft industry. Jim Inhofe, a
Senator from Oklahoma, moved that through the House and ultimately
through the Senate, an industry that was killed, literally destroyed by
frivolous lawsuits. Community health centers, same thing; the aviation
industry; the medical implant makers; Amtrak--we have created a special
exception for Amtrak--the computer industry members who are affected by
Y2K. We took the nonsense out of the courts and put it where it
belongs, into statutes with common sense that requires personal
accountability and responsibility.
Furthermore, Congress may enact litigation reform when lawsuits are
affecting interstate commerce. In many of these lawsuits cities and
individuals are trying to use the State court to restrict the conduct
of the firearms industry nationally, often contrary to state policies
expressed through their own legislatures.
A single verdict in favor of an anti-gun plaintiff could bankrupt or
regulate an entire segment of the economy--and of America's national
defense. It could be out of business, but most importantly, my right,
Oklahomans' right, all of America's right to a guarantee of the second
amendment to the Bill of Rights secured for them in their ability to
own and use firearms responsibly.
This bill will protect our national security. It will protect our
constitutional rights. It will protect an industry responsibly, and it
will protect thousands of jobs. It also will ensure that people who
have suffered a real injury from a real cause of action can be heard
and taken seriously while law-abiding manufacturers and dealers of
firearms may continue to serve the law-abiding citizens exercising
their constitutionally guaranteed second amendment rights.
Mr. President, I thank you, and I note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CRAIG. 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. CRAIG. Mr. President, I just came from our Republican Senate
cloakroom doing an interview on this important piece of legislation,
and I thought that in the course of that interview there was an
interesting comment made by the person on the other end of the line:
Why are you doing this now? And I thought it would be important for me
to put it in the appropriate context because there is a tremendous
number of important issues before the U.S. Congress at this time that
the American people are highly concerned about because we are headed
toward the end of the week. As the leader said a few moments ago, we
are headed toward the August recess, which means Congress, in its
traditional way, will take the month of August off for personal time
and family vacation as do many Americans, and we reconvene after Labor
Day.
So why now are you addressing the Protection of Lawful Commerce in
Arms Act, S. 397? It was stated in the context that the Senate really
can only chew gum or dribble a ball, but it can't do both. What I think
is important for those who might be listening to understand is that we
can chew gum and dribble a ball at the same time, and probably keep
multiple balls in the air. That is exactly what the leader is doing at
this moment.
Last night, I signed, and I think the Presiding Officer signed, a
document that we are very proud of that has been 6 years in coming to
the desk of the President of the United States, and now comes to this
President because of his very clear urging, and that is the national
energy policy.
Yes, the Congress of the United States has completed its work on a
national energy policy, and we believe we can take up the conference
report now on the floor of the Senate during the remainder of the week
before we recess, and we hope that all of our colleagues would let us
step back for a moment from this legislation to do so before we move to
final passage.
It is very possible that we could also do the transportation
conference report. We have extended the legal authority under the
Transportation Act 11 times while the Senate and the House did its
work, and I hope we would not extend it anymore. So, clearly, there are
multiple things we can do, and I trust we will do, before we adjourn
for the August recess. But I think the Presiding Officer and I would
agree that when our President came to town, now, nearly 6 years ago--
and I remember President George W. Bush elect in the leader's office
saying: While I spent a good deal of the campaign time talking about
education and a variety of other issues, I am here now to talk about
national energy. And the first thing I am going to do as a President-
elect and a sworn-in President is to name a task force headed by the
Vice President to recommend to the Congress the development of a
national comprehensive energy policy.
He did, but we did not. He pushed, but we could not produce. He
continued to push, and now we have produced, and finally we have a
comprehensive energy policy before us. So I would say to those
listening and to all of our colleagues, I hope we can dribble a ball
and chew gum at the same time and get all of this work done before the
August recess. If reasonable heads prevail, we should get it all done
by late Friday night. But the leader also said we do have Saturday, and
we will get our work done. By early afternoon today, we will be on S.
397, the Protection of Lawful Commerce in Firearms Act.
What I would like to do at this time is read a letter that we sent to
Majority Leader Frist that we think sets into the right context exactly
why we are here today and tomorrow debating this important legislation.
The letter goes something like this: Dear Majority Leader Frist--and
this was sent on July 12, signed by a great many Senators, Democrats,
and Republicans alike, Max Baucus, who is my cosponsor of this
legislation, and I, along with a good many others. We said:
In the early days of World War II, President Franklin
Roosevelt foresaw that America ``must be the great arsenal of
democracy.'' Americans rose to that challenge, producing
unprecedented quantities of arms, not only for U.S. forces
but also for our allies around the world.
That tradition continues during today, during our Global
War on Terror. In 2004-2005, the United States--the only
major world power without a government firearms factory of
its own--
I said, in earlier statements this morning, we are the only major
world power where the Government does not own a firearms factory. They
are all owned by private citizens--
has contracted to buy over 200,000 rifles, pistols, machine
guns, and other small arms for our soldiers, sailors, airmen
and Marines. In addition, the U.S. Army alone uses about 2
billion rounds of ammunition each year--about half of it made
by private industry. Those guns and ammunition are made in
the U.S. and provide good jobs for hardworking Americans.
Those gun manufacturing facilities and ammunition facilities are
spread across the United States.
Unfortunately, our military suppliers are in danger. Anti-
gun activists have taken to the courts to promote their
agenda of more restrictive gun control. The very same
companies that arm our men and women on the
[[Page S9065]]
front line against terrorism have been sued all over the
country, where plaintiffs blame them for the acts of
criminals.
These lawsuits defy all the rules of traditional tort law.
While many have been rejected in the court--
And that is many of the lawsuits, some 24-plus filed, about half of
them now rejected--
even one verdict for plaintiffs would risk irreparable harm
to a vital defense industry.
These are some of the reasons I have cosponsored S. 397,
the Protection of Lawful Commerce in Arms Act. This bill
would protect America's small arms industry against these
lawsuits, while allowing legitimate, recognized types of
suits against companies that make defective products, or
against gun dealers who break the law.
I was very clear earlier today that S. 397 sets that out in clear
fashion.
The letter goes on to say:
We urge you to help safeguard our ``great arsenal of
democracy'' by bringing S. 397 to the Senate floor before the
August recess, and working to pass it without any amendments
that would jeopardize its speedy enactment into law.
That is why we are here today, because a substantial majority of the
Senate has urged our leader to bring this important legislation to the
floor. We have asked the Senate to be flexible, as is typical in the
Senate. While we have legislation on the floor and conference reports
on major bills pending, we wanted to come forward to be able to set
aside the legislation and to deal with those, and I trust we will, at
least three: conference report on energy, the national energy policy, a
conference report on transportation, and a conference report on the
Interior appropriations bill, which has some critical veterans money in
it that I and others have worked for over the last good number of
weeks, and we hope all of that can be effectively accomplished before
we complete our work by late Friday night or Saturday.
I think that with full cooperation from all of our colleagues, we can
get all of this legislation done in a timely amount of time.
Another question was asked of me a few moments ago by the person I
did the interview with, who said, well, these are very big companies
that make a lot of money and are you not protecting them a great deal?
Let me put that into the right context. I am not going to name names,
but I will say that I know of at least three firearms companies that
have around $100 million worth of sales a year apiece, not collectively
but apiece.
They were comparing it in this interview with the tobacco industry. I
said, Well, gee, I know of those companies alone, they were selling
$1.1 billion, $1.2 billion, some of them $2 billion industries in their
collective value. So we are talking apples and oranges, an industry
that is very limited in its capability that is now being sucked to
death by the trial bar and these frivolous lawsuits to the tune of
hundreds of thousands, if not millions, of dollars a year, in necessary
legal defenses.
So that is why we have been very specific in the law. It is not the
gun industry immunity bill. It is important that we say that and say it
again because it does not protect firearms or ammunitions
manufacturers, sellers or trade associations from any lawsuits based on
their own negligence or criminal conduct. The bill gives specific
examples of lawsuits not prohibited. Let me repeat, not prohibited:
Product liability, in other words, a gun that is defective, that
misfires, that does damage to the operator of it, those definitions are
clearly spelled out within the law. Negligence or negligent
entrustment, breach of contract, lawsuits based on a violation of State
and Federal law, it is very straightforward, and we think it is very
clear.
The trend of abusive litigation targeting the firearms industry not
only defies common sense and concepts of fundamental fairness, but it
would do nothing to curb criminal violence, and we know that.
Furthermore, it threatens the domestic industry that I think is
critical, as I have mentioned earlier, to the national defense of this
country.
It would be a tragedy, and I do not know of a soldier serving today
or one who has served that would want to serve with a firearm at his or
her side being made by a foreign manufacturer. It does not make sense
whatsoever. Yet that is the end product of the effort that is under way
today, to simply put firearms manufacturers out of business. If they
can be pushed overseas, then other forms of law can be used to block
access to firearms or access to the importation of firearms from
foreign countries. The argument would be foreign nations are attempting
to flood the American consumer with a foreign product. I have heard the
argument on the floor by those who have attempted to ban certain types
of importation over the years.
It is an argument well spelled out and well used by many. Faulty as
it may be, it is an argument that oftentimes resonates to the American
consumer. But when the American consumer finds out that they have been
denied access to a quality U.S. product or that product does not exist,
then the argument turns around.
That is why we are on the floor today. That is why we are dealing
with this important legislation. It is my understanding that we have
arrived at a unanimous consent agreement that brings us on to the bill
by 2 this afternoon. I hope at that time many of my colleagues who are
cosponsors would join with me so that we can move this legislation
expeditiously through the Senate. I know there are several amendments
that will probably be brought to the floor, most of them destructive to
the intent of the bill, marginalizing it at best. As a result, I urge
all of my colleagues to stay with us on the construct of S. 397, to be
able to pass it from the Senate as clean as possible, hopefully, very
clean, so the House can act on it immediately and move it to our
President's desk.
That is the intent. As we move through S. 397 over the course of
today and tomorrow, I trust we will also be able to deal with the
conference reports I have mentioned that I think are extremely
important for this country and for all of us to have prior to the
August recess.
I see no other of my colleagues on the floor wishing to speak at this
moment and I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Graham). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. KENNEDY. 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. KENNEDY. Mr. President, I take a moment to explain the effect of
our proceeding to this gun bill. We are putting aside an important
debate on national security and the needs of our troops in a time of
war. Last Friday I listed a number of the amendments that still were
pending that would affect the National Guard and our Reserve troops and
also provide additional kinds of protections for the service men and
women. The decision by the Republican leadership was that we had spent
enough time on the legislation, even though we chose to spend 2 weeks
earlier in the year on the credit card industry and on bankruptcy and a
similar amount of time on the class action legislation which benefited
special interest groups. The credit card industry will profit about $6
billion more this year than last year because of the actions taken. We
also spent time on the special interest legislation dealing with class
actions. We spent the time on that, but we are not on the Defense
authorization bill.
We had an important amendment on the whole policy of the
administration in developing new nuclear weapons which has profound
implications in terms of the issues of nuclear proliferation and
nuclear safety. We looked forward to having an opportunity to debate
that issue. That was put aside by the Republican leadership because
they were concerned about a provision that had been introduced to the
Defense authorization bill last Thursday. Senator Levin, Senator Reed,
Senator Rockefeller, and I introduced an amendment to create an
independent commission to examine the administration's policy
surrounding the detention and interrogation of detainees as an
amendment to the Defense authorization bill.
The response of the White House was instant and negative. The
President announced he would veto the Defense authorization bill, all
$442 billion of it, if it included any provisions to restrict the
Pentagon's treatment of detainees or creating a commission to
investigate detainee operations. No other response could have
demonstrated so
[[Page S9066]]
clearly the urgent need to establish a commission than that this
imperial White House considers itself immune from restraints by
Congress on its powers no matter what the Constitution says.
It is appalling that the administration is so afraid of the truth
that they are even willing to veto the Defense bill which includes
billions of dollars for our troops, pay raises for our troops, and
funds for armored humvees to protect our troops in Iraq. But the
administration was prepared to veto that legislation because of this
amendment that had been offered by Senator Levin, Senator Reed, Senator
Rockefeller, and myself.
Now the Senate Republican leaders have pulled the Defense bill from
the floor. It is interesting that Republican leaders hatched this plan
after Vice President Cheney visited with Senate Republicans last week.
He told them the White House does not want votes on amendments to
require an inquiry into their detention policies and practices. The
White House has not only threatened to veto a national defense bill to
avoid accountability, but is preventing us from voting on the issue. It
is already obvious that the administration's detention and
interrogation policy failed to respect the longstanding rules that have
guided our policy in the past, rejecting the collective wisdom of our
career military and State Department officials. In today's newspapers
we see the result of this action once again with the use of dogs
against detainees.
We need to return to our core values of openness and accountability.
The facts we know so far about torture and other abuses, about
indefinite detention, have already become recruiting tools for
terrorists. But if we act now to uphold our principles, we can end the
outrage, we can end the coverups, and hold officials accountable at the
highest levels. We need to disavow the abuses and harsh techniques. We
need to ensure our actions do not become an excuse for our enemies to
torture American troops when they are captured in the future or to
attack innocent Americans in any part of the world.
The reports of abuse also undermine our own security efforts at home.
The vast majority of Muslim Americans and Arab Americans are willing to
help identify potential terrorists, help prevent charitable donations
from being misused, and act as eyes and ears of a community uniquely
capable of identifying potential threats. When the reports of abuses go
unanswered, they undermine the community's willingness to provide that
assistance. It is impossible for many Muslim Americans and Arab
Americans to be persuaded to help against such threats if they feel
their own religious beliefs have been targeted.
The reality is our safety and security depend on accountability. It
is not enough to pretend that problem does not exist, but that is how
the President has responded to the flow of reports about abuses.
Contrary to the protests of the administration, we do not have the
answers we need. So far, we have had 12 separate so-called
investigations of allegations, but not a single report has adequately
examined the role that civilian authorities have played in crafting the
policies that led to our missteps. Twelve investigations and counting,
and the coverup continues.
The administration and its proxies in the coverup have vilified
anyone who calls for a full inquiry into the policies. They even
stooped to claiming a request for full accounting is somehow a smear
against our troops. The real smear is that the administration continues
to prosecute only a few low-level offenders without holding accountable
the higher-ups who laid the groundwork for all the abuses. The real
disservice to our troops and to our country is done by those who leave
those at the bottom of the chain of command holding the bag while
officials at the top are promoted and rewarded.
We need a commission independent of political influence to find the
relevant facts, not just the facts that suit the partisan needs of the
administration. We need an investigation of the country's so-called
rendition policy which sends detainees to other countries where torture
is well known. We need answers about the administration's reaction to
FBI complaints about abuse. We need a thorough assessment of the legal
regime that is currently in effect.
With its willingness to conceal the truth, the administration will
never tell the American people about this practice of rendition on its
own. We need an independent commission to examine our policies and
practices and make appropriate recommendations. The American people
deserve to understand the choices made by this President and to
evaluate them.
In sum, our interrogation and detention policies need much more
thorough review. In avoiding accountability, the administration has
made it clear it won't accept responsibility for giving our Nation the
clear answers it deserves. As Benjamin Franklin said, half a truth is
often a great lie. Until now we have been fed half truths and coverups
by the administration.
With the recent veto threat, the White House has declared war on any
full and honest accounting of responsibility. The safety of our troops
and our citizens depends on finding out the whole truth and acting on
it. An independent commission of respected professionals with
backgrounds in law and military policy and international relations is
the only way we can learn the truth about what has happened so we can
end the suppression and establish a policy for the future that is
worthy of our Nation and worthy of our respect of all nations.
Administration secrecy doesn't stop with their interrogation policy.
This administration has a systematic disregard for oversight and
openness. Government is intended to be ``of the people, by the people,
and for the people.'' Democracy requires informed citizens, and to be
informed, citizens need to have information about the government.
Congress and the executive branch are supposed to be open and
accountable, so the American people know what is being done in their
name. But under the Bush administration, openness and accountability
have been replaced by secrecy and evasion of responsibility. They abuse
their power, conceal their actions from the American people, and refuse
to hold officials accountable.
No one disputes the necessity of classifying information critical to
protecting our national security--military operations, weapon designs,
intelligence sources, and similar information. But in the post-9/11
world, the administration is making secrecy the norm and openness the
exception. It has used the tragedy of 9/11 to classify unprecedented
amounts of information. Material off-limits to the public has become so
extensive that no other conclusion is possible. The Bush administration
has a pervasive strategy to limit access to information in order to
avoid independent evaluation of its actions by Americans whose job it
is to observe and critique their government. When even Congressmen,
journalists, and public interest groups complain about limits on access
to information, we know the difficulties faced by ordinary Americans
seeking information from their government.
At a hearing last August in the House Subcommittee on National
Security, the Director of the Government's Information Security
Oversight Office, J. William Leonard, testified that ``it is no secret
that the government classifies too much information. Too much
classification unnecessarily impedes effective information sharing.''
The Deputy Under Secretary of Defense for Counterintelligence and
Security, Carol A. Haave, said that as much as half of all classified
information doesn't need to be classified.
Last year, a record 15.6 million documents were classified by the
Bush administration at a cost of $7.2 billion, many under newly
invented categories with fewer requirements for classification.
The administration argues that all this secrecy is necessary to win
the war on terrorism. But the 9/11 Commission Report said that too much
government secrecy had hurt U.S. intelligence capability even before 9/
11. ``Secrecy stifles oversight, accountability, and information
sharing,'' says the report. They know from their own experience.
In July 2003, the 9/11 Commission's cochairmen, Thomas Kean and Lee
Hamilton, complained publicly that the administration was failing to
provide requested information.
[[Page S9067]]
In October 2003, the Commission had no choice, after repeated
requests, but to subpoena records from the FAA.
In November 2003, after multiple requests, the Commission again had
to subpoena information, this time from the Department of Defense.
For the rest of that fall and spring, the administration repeatedly
tried to deny access to presidential documents important to the
Commission's investigation, until public outcry grew loud enough to
convince the administration otherwise.
Key members of the administration balked at testifying, until public
opinion again swayed their stance.
And then, in an ironic twist, 28 pages of the 9/11 Commission Report
itself was classified. So, is all this secrecy really about protecting
us from the terrorists? Or is it just to avoid accountability?
This administration, once in office, wasted no time challenging those
who would hold them accountable. In May 2001, Vice President Cheney's
energy task force issued its report recommending more oil and gas
drilling to solve our energy problems. In light of his former
employment at Halliburton, the recommendation was hardly astonishing.
What was astonishing was the Vice President's refusal to identify the
people and groups who helped write the policy. In June 2001, the GAO,
the nonpartisan, investigative arm of Congress, requested information
on the energy task force, following reports that campaign contributors
had special access while the public was shut out. GAO's request was
simple. It asked, ``Who serves on this task force; what information is
being presented to the task force and by whom is it being given; and
the costs involved in the gathering of the facts.'' Considering that
the task force wrote the nation's energy policy, it was not an
unreasonable request.
The administration refused to comply, even though GAO's request was
not out of the ordinary. President Clinton's task forces on health care
and on China trade relations were both investigated by GAO. The Clinton
administration turned over detailed information on the participants and
proceedings of the task forces.
But the Bush administration argued that GAO did not have the
authority to conduct the investigation. For the first time in its 80-
year history, GAO was forced to file suit against an administration to
obtain requested information. But the court sided with the
administration in Walker v. Cheney, and GAO's investigative oversight
authority was effectively reduced. Independent oversight is critically
important when one party controls both Congress and the White House,
and GAO is critical to that oversight.
On October 12, 2001, John Ashcroft wrote a memo outlining the Justice
Department's views on Freedom of Information Act requests. The memo set
the tone for an administration hostile to such requests. It discouraged
executive branch agencies from responding to Freedom of Information Act
requests, even when the agencies had the option to respond. He
basically reversed the longstanding policy of prior administrations.
The Clinton administration policy, set forth by Attorney General
Janet Reno, was that if a document could be released without harm, an
agency should do so, even if there were technical grounds for
withholding it. They knew that government openness was essential to an
informed public.
When the Bush administration came to office, Attorney General
Ashcroft disagreed--he wrote that if there is any technical ground for
withholding a document under the Freedom of Information Act, an agency
should withhold it. The Clinton policy had been ``release if at all
possible.'' The Bush policy was ``keep secret if at all possible.''
Why should the public know what the administration is doing? Why
release documents that might be embarrassing to the White House or its
friends in business?
Some organizations claim, based on their experience, that this
obsession with secrecy goes even farther, and that executive branch
agencies are being told to withhold information until it is subpoenaed.
Sean Moulton, a senior policy analyst at OMB Watch, argued that ``if
there are documents the government doesn't want to release but doesn't
have any legal basis for withholding, unless you're willing to go to
court, you're not getting those documents.''
Since the tragedy of September 11, this administration has
effectively shut down inquiry after inquiry:
In November 2001, energy companies were planning a natural gas
pipeline through the Blue Ridge Mountains of Virginia. Local citizens,
led by former U.S. Army Ranger Joseph McCormick, asked the Federal
Energy Regulatory Commission for a map of the planned pipeline. These
citizens weren't being nosy--they wanted to know if a large new
pipeline for natural gas would be going through their backyards. FERC
denied the citizens' request in the name of national security, even
though this type of information had been public before 9/11. Clearly,
national security concerns are legitimate. But without knowledge of the
pipeline's location, how could these citizens defend their property?
Joseph McCormick put it bluntly: ``There certainly is a balance,'' he
said. ``It's about people's right to use the information of an open
society to protect their rights.''
In the fall of 2002, the chemical compound perchlorate was found in
the water supply of Aberdeen, Maryland--near the Army's famous Aberdeen
Proving Ground. Perchlorate is a main ingredient of rocket fuel. It
also stunts the metabolism and brain growth of newborns. A group of
citizens organized, and worked with the Army to protect their drinking
water from further contamination. But a few months later, the Army
began censoring maps and information that would help determine which
areas were contaminated, supposedly in the interest of national
security--if citizens could find out where the water was contaminated,
then terrorists could find it too. The head of the citizens' group was
a 20-year army veteran. His water well was only a mile and a half away
from the proving ground. ``It's an abuse of power,'' he said. ``The
government has to be transparent.''
Even Members of Congress have had to subpoena information in order to
do their work. Last October, Congressmen Christopher Shays and Henry
Waxman, the chairman and ranking Democrat on the House Government
Reform Subcommittee on National Security, Emerging Threats and
International Relations, asked for an audit of the Development Fund for
Iraq. The copy they received had over 400 items blacked out. They had
so much difficulty obtaining an unredacted report from the Defense
Department that they had to prepare a subpoena. Once they finally
received an unredacted copy, guess what had been blacked out? More than
$218 million in charges from Halliburton. So far, no one has been held
accountable.
It has now been 744 days without a White House investigation into the
CIA leak case. It took 85 days for the administration even to require
its staff to turn over evidence relating to the leak. Senate
Republicans held 20 hearings on accusations against President Clinton
and the Whitewater case, but they have held zero hearings on the leak
of the covert identity of CIA agent Valerie Plame. So far, no one has
been held accountable.
Last week, the Defense Department refused to cooperate with a federal
judge's order to release secret photographs and videotapes of prisoner
abuse at Abu Ghraib. The ACLU had sued to obtain release of 87
photographs and 4 videotapes, but the administration filed sealed
documents resisting the order. They are so obsessed with secrecy that
they even make secret arguments to keep their secrets. So far, no one
has been held accountable.
Also last week, the administration submitted an initial report on
progress in training Iraqi security forces. It has been more than 2
years since the fall of Baghdad, and a reliable assessment of our
progress in training those forces was long overdue. The key questions
that the American people want to know are how many Iraqi security
forces are capable of fighting on their own and what our military
requirements will be the months ahead. But the answers remain
classified. The American people deserve to know the facts about our
policy. They want to know how long it will take to fully train the
Iraqis and when our military mission will be completed. They can deal
with the truth, and they deserve it.
[[Page S9068]]
No one wants to do anything that would help the insurgents. But the
administration must do a better job of responding to the legitimate
concerns of the American people. The administration still isn't willing
to be candid. It needs to find a way to shed some of the secrecy and
answer these questions in good faith for the American people. The
silence is deafening.
There is also a pattern of withholding information from members of
Congress on the administration's nominations. In 2003, Miguel Estrada
was nominated for a Federal judgeship. We requested legal memoranda he
wrote as Assistant Solicitor General, and we were repeatedly denied. In
2004, Alberto Gonzales was nominated to be Attorney General. We
requested various memoranda he authorized on administration torture
policy, and we were repeatedly denied. Earlier this year, John Bolton
was nominated to be Ambassador to the United Nations. We requested
documents to determine if he acted appropriately in his previous job,
and we have been repeatedly denied.
Instead of coming clean and providing the information to the
Congress, we have been stonewalled. Our questions have gone unanswered.
And now, the President appears to be poised to abuse his power further,
rub salt in the wound, and send John Bolton to the United Nations
anyway with a recess appointment of dubious constitutionality.
Now John Roberts has been nominated to a lifetime seat on the Supreme
Court. We hope this nomination will not be another occasion for
administration secrecy, but press accounts suggest otherwise. Even
before we asked for any documents, the administration announced it will
not release many of the memoranda written by John Roberts. The White
House spokesman says they will claim attorney-client privilege, but
many of the memos vital to our consideration of Judge Roberts for the
Supreme Court were written while he worked as a top political and
policy official in the Solicitor General's office. That office works
for all the American people--not just the President. Attorney-client
privilege clearly has never been a bar to providing the Senate with
what it needs to process a nomination.
As we all know, no one is simply entitled to serve on the Supreme
Court of the United States. One has to earn that right. And one earns
that right by getting the support of the American people, reflected in
the vote here in the United States Senate. And that is what the
confirmation process is all about. We know that the administration is
familiar with and aware of Judge Roberts' positions on various issues.
They have had a year to study it and had their associates talk with him
and with those who worked with him. The real question is: Shouldn't the
American people have the opportunity to get the same kind of
information so that they can form their own impression and so that the
Senate can make a balanced, informed judgment and see whether or not
the balance in the Supreme Court will be furthered? That is the issue
and it appears that the administration is continuing to withhold
important information that would permit the Congress the ability to do
so.
Yes, the administration has consistently used the horror of 9/11 and
its disdain of congressional oversight to get its way and avoid
accountability. It consistently uses this secrecy to roll back the
rights of average Americans. But even its best spin doctors can't
conceal some of the administration's most flagrant abuses of power.
Last August, the New York Times reported that ``health rules,
environmental regulations, energy initiatives, worker-safety standards
and product-safety disclosure policies have been modified in ways that
often please business and industry leaders while dismaying interest
groups representing consumers, workers, drivers, medical patients, the
elderly and many others.'' Often, this has been done in silence and
near secrecy.
In 2000, Congress responded to the disclosure of defects in Firestone
tires, which may have been responsible for as many as 270 deaths, by
passing legislation which would make information on auto safety and
related defects readily available. But in July 2003, the National
Highway Traffic Safety Administration decided that reports of defects
would cause ``substantial competitive harm'' to the auto industry, and
exempted warranty claims and consumer complaints from the Freedom of
Information Act. Clearly, that was another abuse of power that protects
big business while putting the American public at greater risk.
In 2003, the administration knowingly withheld cost estimates of its
Medicare prescription drug bill--one of the most important pieces of
legislation that year. The estimates showed costs over $100 billion
more than the administration claimed, but the information was withheld
because of fears that the actual numbers would persuade Members of
Congress to vote no. Administration officials threatened to fire Chief
Actuary Richard Foster ``so fast his head would spin,'' if he informed
Congress of the real cost estimate. I wrote a letter to the
administration on this subject, but they never responded to my
questions.
In 2003, the Food and Drug Administration kept secret a report that
children on antidepressants were twice as likely to be involved in
suicide-related behavior. The FDA also prevented the author of the
study--their expert on the issue--from presenting his findings to an
FDA advisory committee. Dr. Joseph Glenmullen, a Harvard psychiatrist,
said ``Evidence that they're suppressing a report like this is an
outrage, given the public health and safety issues at stake . . . For
the FDA to issue an ambiguous warning when they had unambiguous data
like this is an outrage.''
In November 2003, the White House told the Appropriations Committees
in both Houses of Congress that it would only respond to requests for
information if they were signed by the committee chairman. In a time of
one-party rule, this tactic made congressional oversight almost
completely impossible.
In April 2004, the ranking member of the Environment and Public Works
Committee, Senator Jeffords, was forced to place holds on several EPA
nominees after the administration refused to respond to twelve
outstanding information requests, including information on air
pollution.
In August 2004, under pressure from the Department of Homeland
Security, the FCC decided to make telephone service outage reports
confidential, and exempt them from Freedom of Information Act requests.
The FCC argued it was because companies could use competitors' service
outages in ad campaigns. You may not be able to make informed decisions
on your phone company, but at least the company will be protected from
nasty advertising.
Last month, we discovered that the administration had blocked studies
criticizing the Central American Free Trade Agreement--after it had
already paid for them. In 2002, the Department of Labor hired the
International Labor Rights Fund to back up its argument that Central
American countries had improved on labor issues. The contractor found
the opposite, and posted its results on its Web site in March 2004. The
Labor Department ordered its removal from the website, banned its
release, and barred the contractor's employees from discussing the
report. The Department of Labor denied a Congressman's request for the
report under the Freedom of Information Act. These are the American
people's tax dollars. But when the administration didn't like an
answer, it abused its power to avoid accountability--at their expense.
Yesterday, the Wall Street Journal disclosed yet another list of
abuses in Iraq reconstruction. Ten billion dollars of no-bid contracts
were awarded; $89 million was doled out without contracts at all; $9
billion is unaccounted for, and may have been embezzled. An official
fired for incompetence was still giving out millions of dollars in aid,
weeks after his termination. A contractor was paid twice for the same
job. A third of all U.S. vehicles that Halliburton was paid to manage
are missing. It is a staggering display of incompetence and cover-up,
so that no one will be held accountable.
Americans deserve better. They deserve the information necessary to
become informed, effective citizens. We as lawmakers are better able to
represent our constituents when we have access to the critical
information held by the executive branch. We must never forget who we
work for--the American people. Congress is a co-equal branch of
government, and we
[[Page S9069]]
have a duty to hold the administration accountable for its actions.
Mr. President, on the matter we have before the Senate at the present
time, here we go again on the issue of legal immunity for the gun
industry. Without shame, the Republican leadership has brought back
this special interest, anti-law enforcement bill that strips away the
rights of victims to go to court.
Why the urgency to take up this bill now? This is a critical moment
in this country's future. Surely, the Republican leadership can take
some time to address other priorities before attempting to give a free
pass to the gun industry. Why aren't we completing our work on the
Defense authorization bill? That is what was before the Senate. Why
have we displaced a full and fair debate on the issue of the Defense
authorization bill--which has so many provisions in there concerning
our fighting men and women in Iraq and about the National Guard and
defense--in order to consider special interest legislation?
That is what is before the Senate, and that is what we are
considering at the present time, as a result of the Republican
leadership. Surely, the Congress can do more for our citizens than rush
to pass unprecedented special interest legislation. We can and should
be acting to meet our real challenges.
Last year, the Federal Government recalled a water pistol, the Super
Soaker, just a few days before the assault weapons ban expired. America
does more to regulate the safety of toy guns than real guns, and it is
a national disgrace. The gun industry has worked hard to avoid Federal
consumer safety regulation. Where are our priorities? Where is the
logic in passing a bill that makes it harder to sue for harm caused by
real guns than harm caused by a plastic toy gun?
The industry has conspicuously failed to use technology to make guns
safer. It has attempted to insulate itself from its distributors and
dealers, once guns leave the factory. Under this bill, it will not even
matter if the guns are stolen by factory employees and snuck out of the
factory in the middle of the night.
The overwhelming majority of Americans believe gun dealers and gun
manufacturers should be held accountable for their irresponsible
conduct, similar to everyone else.
Cities, counties, and States incur billions of dollars in costs each
year as a result of gun violence. Studies estimate that the public cost
of firearm-related injuries is over $1 million for each shooting
victim. Yet this bill would take a fierce toll and dismiss even pending
cases where communities are trying to get relief.
This bill would bar the legal rights of hard-working law enforcement
officers, such as Ken McGuire and David Lemongello. These two police
officers from Orange, NJ, were seriously wounded in a shootout with a
burglary suspect. The gun used by the suspect was one of 12 guns sold
by a West Virginia pawnshop to an obvious straw purchaser for an
illegal gun trafficker. Fortunately for the officers, this bill did not
become law last year, and their case was able to proceed.
Recently, David Lemongello was able to obtain a $1 million
settlement. Significantly, the settlement required the dealer and other
area pawnshops to adopt safer practices. These reforms go beyond the
requirements of current law and are not imposed by any manufacturers or
distributors. This is not about money. This is about public safety, and
I commend these brave officers for their courageous battle to change
the system.
It is clear what will happen if Congress gives the gun industry this
unprecedented legal immunity, on top of its existing exemption from
Federal consumer safety regulations. Guns will be more dangerous. Gun
dealers will be more irresponsible. More guns will be available to
terrorists and criminals. There will be more shootings and more dead
children.
The Nation's response to this death toll has been unacceptable. Yet,
year after year, little changes in our approach to regulating guns. How
can we justify this neglect? How can we continue to ignore the vast
discrepancy in gun deaths in the United States compared to other
nations? How can we possibly justify this effort to give the gun
industry even greater protection for irresponsible behavior?
Mr. President, this bill is nothing short of Congress aiding and
abetting the provision of guns to criminals. It takes the gun industry
off the hook when their guns are sold to the wrong people who are out
to hurt us. Under this administration, we have seen the budget cuts to
the Bureau of Alcohol, Tobacco and Firearms, so our law enforcement do
not have the resources they need to keep guns out of criminal hands.
That is why these citizen lawsuits are so important. If the police
cannot do their job, then citizens should be able to do it. But this
legislation will throw the citizens out of court. It is wrong.
I yield the floor.
The PRESIDING OFFICER. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I come to the floor to speak in
opposition to the motion to proceed on the gun liability bill.
Before I begin, I want to say I find it incongruous that we had the
Defense Authorization bill up, an important bill--we were about to
consider some amendments affecting enemy combatants and detainees, I
think very important amendments, by Senator McCain, Senator Warner, and
Senator Graham. The bill was up for an unprecedented short time, and
had to have cloture, according to the Republican side. Well, some of us
wanted to hear what Senators McCain, Warner, and Graham had to say. So,
we voted against cloture. Then, the leader took down the bill, and now
we are on a bill for a real special interest in this country, the
National Rifle Association.
Mr. President, I have carefully reviewed this bill, and in my
assessment is it is mistitled. The Protection of Lawful Commerce in
Arms Act has nothing to do with protecting lawful commerce; rather, it
protects one segment of industry against the lawful interests of our
States in remedying and deterring negligent conduct.
The bill pretends to be part of the long-ranging and important debate
about gun regulation. Its proponents argue that lawsuits need to be
stopped in order to defend their view of the second amendment. But that
is pretense. This bill is a simple giveaway to one industry--the gun
lobby. It is a special-interest windfall.
I, for one, do not believe we should be giving the gun industry
sweeping and unprecedented protection from the type of lawsuits that
are available to every individual involving every other industry
anywhere in America.
We have to recognize that guns in America are responsible for the
deaths of 30,000 Americans a year. If we remove this one avenue for
enforcing responsibility, individuals will have no recourse. Gun owners
and gun victims alike will be left virtually powerless against an
industry that is already immune from so many other consumer
protections. So we find ourselves today on the cusp of yet another NRA
victory.
Simply put, we are considering legislation that would ensure that it
is not in the financial interests of gun manufacturers or sellers to
take reasonable care in administering their business. We are removing
the incentives of the tort system to encourage responsible behavior. No
longer will those incentives to responsible behavior be present.
Let me be clear, if this bill is approved, it will not be a victory
for law-abiding gun owners who might someday benefit from the ability
to sue a manufacturer or dealer for their negligent conduct. No, this
will be a victory for those who have turned the NRA into a political
powerhouse, unconcerned with the rights of a majority of Americans who
want prudent controls over firearms and who want to maintain their
basic legal right in our civil law system.
Now, I do not support meritless lawsuits against the gun industry. I
do not think anybody does. It is my belief gun manufacturers and
dealers should be held accountable for irresponsible marketing and
distribution practices, as anyone else would be, particularly when
these practices may cause guns to fall into the hands of criminals,
juveniles or mentally ill people.
This legislation has one simple purpose: to prevent lawsuits from
those harmed by gun violence as a result of the wrongful conduct of
others. These include lawsuits filed by cities and
[[Page S9070]]
counties responding to crimes often committed using guns that flood the
illegal market, with the full knowledge of the distributors that the
legal market could not possibly be absorbing so many of these weapons--
that is why so many mayors have written strongly against this
legislation--and lawsuits filed by organizations on behalf of their
members and victims of violent crimes and their families who are
injured or killed as a result of gun violence facilitated by the
negligence of gun manufacturers or sellers.
This issue is not an abstract one. The bill is going to hurt real
people--victims not only of criminal misuse by a well-designed firearm,
but victims of guns that have been marketed in ways which, quite
frankly, should be illegal.
Essentially, this bill prohibits any civil liability lawsuit from
being filed against the gun industry for damages resulting from the
criminal or unlawful misuse of a gun by a third party, with a number of
narrow exceptions.
In doing so, the bill effectively rewrites traditional principles of
liability law which generally hold that persons and companies may be
liable for their negligence, even if others are liable as well. This
bill would essentially give the gun industry blanket immunity from
civil liability cases of this type, an immunity no other industry in
America has today. This is truly a remarkable aspect of the
legislation. It is a radical approach to our Nation's laws and the
principles of federalism.
The bill does allow certain cases to move forward, as its supporters
have pointed out, but these cases can proceed only on the narrowest of
circumstances. Countless experts have now said that this bill would
stop virtually all of the suits against gun dealers and manufacturers
filed to date which are based on distribution practice, many of which
are vital to changing industry practice and compensating victims who
have been horribly injured through the clear negligence or even
borderline criminal conduct of some gun dealers and manufacturers.
With any other business or product, in every other industry, a seller
or manufacturer can be liable if that seller or manufacturer is
negligent, but not here. Since money, rather than life or liberty, is
at stake in a civil case, the standard of proof is lower. There need
not be a criminal violation to recover damages. In the overwhelming
majority of civil cases, there is no criminal violation. But here,
contrary to general negligence law covering almost every other product,
the bill allows negligent gun dealers and manufacturers to get off the
hook unless they violated a criminal law. This is dreadful. It is
despicable. This bill would create a special area of law for gun
manufacturers and says that unless they violate a law, they can be
careless in how they stock, secure, and sell dangerous weapons.
The judge in Washington State, presiding over the case brought by the
DC area sniper victims--the case where a sniper lay in the trunk of a
car with a hole punched through the trunk, went to different gasoline
stations, schools, parks, and stores, and simply fired at people,
indiscriminately killing them--has ruled twice that the dealer of the
weapon used in the shooting, Bull's Eye Shooters Supply, and its
manufacturer, Bushmaster Firearms, may be liable in negligence for
enabling the snipers to obtain their weapon. But even with the new
modifications of this bill, the sniper victims' cases will likely be
thrown out of court under this legislation. So guess whose side this
Senate is coming down on. Not the side of the victims of the DC sniper
but the side of Bull's Eye Shooters Supply and the manufacturer,
Bushmaster Firearms.
Let's make that clear. This is the most notorious sniper case in
America. There is negligence on the part of the gun dealer who sold
that gun. He didn't report it until very late. He allowed the snipers
to get the gun. Now we are passing a law to prevent the victims from
suing under civil liability. Nowhere else in the law does this concept
exist in this form. It is a special carve-out for the DC sniper gun
manufacturer and gun seller.
In another case, a Massachusetts court has ruled that gun
manufacturer Kahr Arms may be liable for negligently hiring drug-
addicted criminals and enabling them to stroll out the plant door with
unmarked guns to be sold to criminals. But with these proposed changes,
the case against Kahr Arms would be dismissed. A case would be
dismissed where a gun manufacturer negligently hired drug-addicted
criminals and let them go out the plant door with unmarked guns to be
sold to criminals. That is what this does.
This conduct, though outrageous, violated no law--negligent, yes;
criminal, no. Contrary to current law which allows judges and juries to
apportion blame and damages, this bill would bar any damages against a
manufacturer if another party was liable due to a criminal act.
Why should firearms get special treatment? In our society, we hold
manufacturers liable for the damage their negligence causes. We do this
across the board for every industry, such as the automobile industry if
they build a faulty gas tank or if they are negligent putting it
together. Lawsuits filed against the gun industry provide a way for
those harmed to seek justice from the damages and destruction caused by
firearms. Just as important, they create incentives to reform practices
proven to be dangerous. I will bet Kahr Arms will make every effort not
to hire drug addicts to sell guns to criminals. If that case is
dismissed, they can hire them. They can sell to criminals. That is not
going to make a difference.
When this bill was introduced in the last Congress and again in this
Congress, its supporters spoke about the need to protect the industry
from frivolous lawsuits and the need to protect the industry from the
potential loss of jobs brought on by future lawsuits. These claims are
unfounded. This bill is simply the latest attempt of the gun lobby to
evade industry accountability. The suits against the gun industry come
in varying forms, but they all have one goal in common--forcing the
firearms industry to become more responsible. What is wrong with that?
Under the principles of common law, all individuals and industries have
a duty to act responsibly. What is special about the gun industry that
they should be exempt from this most basic of civil responsibilities?
Answer: Nothing. This is an industry that is less accountable under law
than any other in America right now. The only avenue of accountability
left is the courtroom. This bill attempts to slam the courtroom door in
the face of those who would hold the industry responsible for its
negligent actions.
We ought to hold the industry responsible for taking the proper
precautions to ensure law-abiding citizens are able to obtain the guns
they choose while criminals and other prohibited individuals are not.
Let me read from a letter that was sent by more than 50 full
professors from law schools all across this Nation, from the University
of Michigan School of Law, UCLA Law School, the University of Oregon
School of Law, Indiana University School of Law, Harvard Law School,
Syracuse University College of Law, Brooklyn Law School, Georgetown
University Law Center, Lewis and Clark Law School, Roger Williams
University School of Law, Northwestern School of Law, University of
Chicago Law School, William Mitchell College of Law, University of
Colorado School of Law, Duke Law School, Albany Law School, University
of California Hastings College of Law, Houston Law Center, Widener
University School of Law, Rutgers, Tulane, Boston, Albany, Temple
University Beasley School of Law, Case Western Reserve University
School of Law, Cornell Law School, Salmon P. Chase College of Law,
Northern Kentucky University, NYU School of Law, The George Washington
University Law School, Boston College Law School, Tulane University Law
School, Columbia Law School, New York Law School, University of Alabama
School of Law, Emory University School of Law, University of California
Boalt School of Law, and on and on.
Let me tell you what they say. I will read parts of it. They have
reviewed this bill, S. 397.
No other industry enjoys or has ever enjoyed such a blanket
freedom from responsibility for the foreseeable and
preventable consequences of negligent conduct.
S. 397 . . . would abrogate this firmly established
principle of tort law. Under this bill, the firearms industry
would be the one and only business in which actors would be
free utterly to disregard the risk, no matter how high or
foreseeable, that their conduct
[[Page S9071]]
might be creating or exacerbating a potentially preventable
risk of third party misconduct. Gun and ammunition makers,
distributors, importers, and sellers would, unlike any other
business or individual, be free to take no precautions
against even the most foreseeable and easily preventable
harms resulting from the illegal actions of third parties.
And they could engage in this negligent conduct persistently,
even with the specific intent of profiting from the sales of
guns that are foreseeably headed to criminal hands.
They could engage in the conduct in an unlimited way and profit from
the sales of guns that are foreseeably headed for criminal hands.
Under this bill, a firearms dealer, distributor, or
manufacturer could park an unguarded open pickup truck full
of loaded assault weapons on a city street corner, leave it
there for a week, and yet be free from any negligence
liability if and when the guns were stolen and used to do
harm.
Mr. President, this is what we are doing. This isn't just my view,
this is the view of more than 50 professors of law at major law schools
all across the Nation. We are facilitating criminal conduct by
providing this protection against liability.
It goes on to say:
A firearms dealer, in most states, could sell 100 guns to
the same individual every day, even after the dealer is
informed that these guns are being used in crime--even, say,
by the same violent street gang.
That is a direct quote. So you are facilitating a situation where
somebody could sell a hundred guns a day to a street gang and have no
liability for that action. That is what I think is really despicable--
all because of the power of one lobby.
Again, it goes on to say:
It might appear from the face of the bill that S. 397 and
H.R. 800 would leave open the possibility of tort liability
for truly egregious misconduct, by virtue of several
exceptions set forth in Section 4(5)(I). Those exceptions,
however, are in fact quite narrow and would give those in the
firearm industry little incentive to attend to the risks of
foreseeable third party misconduct.
One exception, for example, would purport to permit certain
actions for ``negligent entrustment.'' The bill goes on,
however, to define ``negligent entrustment'' extremely
narrowly.
The exception applies only to sellers, for example, and
would not apply to distributors or manufacturers, no matter
how egregious their conduct.
So when somebody comes to the floor and argues this bill provide for
negligent entrustment, don't believe it. It is so limited that it
doesn't cover the whole field of those who handle firearms.
And then it goes on to say:
Even as the sellers, the exception would apply only where
the particular person to whom a seller supplies a firearm is
one whom the seller knows or ought to know will use it to
cause harm. The ``negligent entrustment'' exception would,
therefore, not permit any action based on reckless
distribution practices, negligent sales to gun traffickers
who supply criminals--
That is the pickup that is parked on the street corner containing
loaded assault weapons and sold to anybody who comes by.
The negligent entrustment exception would, therefore, not
permit any action based on reckless distribution practices,
negligent sales to gun traffickers who supply criminals,
careless handling of firearms, lack of security, or any of a
myriad of potentially negligent acts.
Another exception would leave open the possibility of
liability for certain statutory violations, variously
defined, including those described under the heading of
negligence per se. Statutory violations, however, represent
just a narrow special case of negligence liability. No
jurisdiction attempts to legislate standards of care as to
every detail of life, even in a regulated industry; and there
is no need. Why is there no need? Because general principles
of tort law make clear that the mere absence of a specific
statutory prohibition is not carte blanche for unreasonable
or dangerous behavior. S. 397 and H.R. 800 would turn this
traditional framework on its head, and free those in the
firearms industry to behave as carelessly as they would like,
so long as the conduct has not been specifically prohibited.
If there is no statute against leaving an open truckload of
assault weapons on a street corner, or against selling
hundreds of guns to the same individual, under this bill
there could be no tort liability.
That is what this bill is opening up.
Again, this represents a radical departure from traditional
tort principles.
Again, this isn't just me saying this; this is more than 50 law
professors from almost 50 different law schools.
As currently drafted, this bill would not simply protect
against the expansion of tort liability, as has been
suggested, but would in fact dramatically limit the
application of longstanding and otherwise universally
applicable tort principles. It provides to firearm makers and
distributors a literally unprecedented form of tort immunity
not enjoyed, or even dreamed of, by any other industry.
Mr. President, I know the motion to proceed will pass. I also know
that what is being engaged upon is the most stringent test of
germaneness I have ever seen take place in this body to prevent
amendments from being offered once cloture is invoked, which is going
to happen. This Senate is going to do the people it represents an
enormous harm. They are going to protect the most powerful lobby in the
United States and open millions of Americans to egregious injury from
negligent practices by distributors and sellers of firearms in this
country.
That is not what we were elected to do. No one in this body was
elected to be the Senator from the National Rifle Association. Although
they have a point of view, and although this point of view is popular
in many places, the question is, do we still protect the public
welfare?
I say to you we do not protect the public welfare, as more than 50
professors of law have pointed out.
Additionally, I will put into the Record a letter of opposition from
law enforcement. I ask unanimous consent that it be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
July 26, 2005.
U.S. Congress,
U.S. Senate,
Washington, DC.
Dear Senator: As active and retired law enforcement
officers, we are writing to urge your strong opposition to
any legislation granting the gun industry special legal
immunity. S. 397 would strip away the legal rights of gun
violence victims, including law enforcement officers and
their families, to seek redress against irresponsible gun
dealers and manufacturers.
The impact of this bill on the law enforcement community is
well illustrated by the lawsuit brought by former Orange, New
Jersey police officers Ken McGuire and David Lemongello. On
January 12, 2001, McGuire and Lemongello were shot in the
line of duty with a trafficked gun negligently sold by a West
Virginia dealer. The dealer had sold the gun, along with 11
other handguns, in a cash sale to a straw buyer for a gun
trafficker. In June 2004, the officers obtained a $1 million
settlement from the dealer. The dealer, as well as two other
area pawnshops, also have implemented safer practices to
prevent sales to traffickers, including a new policy of
ending large-volume sales of handguns. These reforms go
beyond the requirements of current law and are not imposed by
any manufacturers or distributors.
If immunity for the gun industry had been enacted, the
officers' case would have been thrown out of court and
justice would have been denied. Police officers like Ken
McGuire and Dave Lemongello put their lives on the line every
day to protect the public. Instead of honoring them for their
service, legislation granting immunity to the gun industry
would deprive them of their basic rights as American citizens
to prove their case in a court of law. We stand with officers
McGuire and Lemongello in urging you to oppose such
legislation.
Sincerely,
International Brotherhood of Police Officers (AFL-CIO
Police union); Major Cities Chiefs Association
(Represents our nation's largest police departments);
National Black Police Association (Nationwide
organization with more than 35,000 members); Hispanic
American Police Command Officers Association (Serving
command level staff and federal agents); National
Latino Peace Officers Association; The Police
Foundation (A private, nonprofit research institution);
Michigan Association of Chiefs of Police; Rhode Island
State Association of Chiefs of Police; Maine Chiefs of
Police Association.
Departments listed for identification purposes only:
Sergeant Moises Agosto, Pompton Lakes Police Dept. (NJ);
Sheriff Drew Alexander, Summit County Sheriff's Office
(OH); Sheriff Thomas L. Altiere, Trumbull County
Sheriff's Office (OH); Director Anthony F. Ambrose III,
Newark Police Dept. (NJ); Chief Jon J. Arcaro, Conneaut
Police Dept. (OH); Officer Robert C. Arnold, Rutherford
Police Dept. (NJ); Chief Ron Atstupenas, Blackstone
Police Dept. (MA); Sheriff Kevin A. Beck, Williams
County Sheriff's Office (OH); Detective Sean Burke,
Lawrence Police Dept. (MA); Chief William Bratton, Los
Angeles Police Dept. (CA); Special Agent (Ret) Ronald
J. Brogan, Drug Enforcement Agency; Chief Thomas V.
Brownell, Amsterdam Police Dept. (NY).
Chief (Ret) John H. Cease, Wilmington Police Dept. (NC);
Chief Michael Chitwood, Portland Police Dept. (ME);
Chief William Citty, Oklahoma Police Dept. (OK); Chief
Kenneth V. Collins,
[[Page S9072]]
Maplewood Police Dept. (MN); President Lynn N. Cripps,
Iowa State Police Association, Marshalltown Police
Dept. (IA); Chief Daniel G. Davidson, New Franklin
Police Dept. (OH); Asst. Director Jim Deal, U.S. Dept.
of Homeland Security, Reno/Lake Tahoe Airport (NV);
Chief Gregory A. Duber, Bedford Police Dept. (OH);
Captain George Egbert, Rutherford Police Dept. (NJ);
Sterling Epps, President, Association of Former Customs
Agents, Northwest Chapter (WA); Chief Dean Esserman,
Providence Police Dept. (RI).
Officer Daniel Fagan, Boston Police Patrolman's Assoc.,
Boston Police Dept (MA); Captain Mark Folsom, Kansas
City Police Dept. MO); Chief Charles J. Glorioso,
Trinidad Police Dept. (CO); Superintendent Jerry G.
Gregory (ret), Radnor Township Police Dept. (PA); Chief
Jack F. Harris, Phoenix Police Dept. (AZ); Chief (Ret.)
Thomas K. Hayselden, Shawnee Police Dept. (KS); Terry
G. Hillard, Retired Superintendent, Chicago Police
Dept. (IL); Steven Higgins, Director (Ret.) ATF;
Officer Rick L. Host, Sec/Treasurer, Iowa State Police
Assoc., Des Moines Police Dept. (IA); Officer David
Hummer, Ft. Worth Police Officers Association, Ft Worth
Police Dept. (TX); Officer H. Husberg, Ft. Worth Police
Officers Association, Ft Worth Police Dept. (TX); Chief
Ken James, Emeryville Police Dept. (CA).
Chief Calvin Johnson, Dumfries Police Dept. (VA); Chief
Gil Kerlikowske, Seattle Police Dept. (WA); Deputy
Chief Jeffrey A. Kumorek, Gary Police Dept. (IN);
Detective John Kotnour, Overland Park Police Dept.
(KS); Detective Curt Lavarello, Sarasota County
Sheriffs Office (FL); Chief Michael T. Lazor, Willowick
Police Dept. (OH); Sheriff Simon L. Leis, Jr., Hamilton
County Sheriffs Dept. (OH); Sheriff Ralph Lopez, Bexar
County Sheriff (TX); Chief Cory Lyman, Ketchum Police
Dept. (ID); Chief David A. Maine, Euclid Police Dept.
(OH); Chief J. Thomas Manger, Montgomery County Police
Dept. (MD); Chief Burnham E. Matthews, Alameda Police
Dept. (CA); Chief Michael T. Matulavich, Akron Police
Dept. (OH).
Chief Randall C. McCoy, Ravenna Police Dept. (OH);
Sergeant Michael McGuire, Essex County Sheriff's Dept.
(NJ); Chief William P. McManus, Minneapolis Police
Dept. (MN); Chief Roy Meisner, Berkley Police Dept.
(CA); Sheriff Al Myers, Delaware County Sheriff's
Office (OH); Chief Albert Najera, Sacramento Police
Dept. (CA); Detective Michael Palladino, Executive Vice
President, National Association of Police
Organizations, President, Detectives' Endowment
Association of New York City; Chief Mark S. Paresi,
North Las Vegas Police Dept. (NY); President Thomas R.
Percich, St. Louis Police Leadership Organization, St.
Louis Police Dept. (MO); Sheriff Charles C. Plummer,
Alameda County Sheriffs Department (CA).
Chief Edward Reines, Yavapat-Prescott Tribal Police Dept.
(AZ); Chief Cel Rivera, Lorain Police Dept. (OH);
Officer Kevin J. Scanell, Rutherford Police Dept. (NJ);
Robert M. Schwartz, Executive Director, Maine Police
Dept. (ME); Chief Ronald C. Sloan, Arvada Police Dept.
(CO); Chief William Taylor, Rice University Police
Dept. (TX); Asst. Chief Lee Roy Villareal, Bexar County
Sheriffs Dept (TX); Chief (Ret) Joseph J. Vince, Jr.,
Crime Gun Analysis Branch, ATF (VA); Chief Garnett F.
Watson Jr., Gary Police Dept. (IN); Hubert Williams,
President, The Police Foundation (DC); President Greg
Wurm, St. Louis Police Leadership Organization, St.
Louis Police Dept. (MO).
Mrs. FEINSTEIN. This letter of opposition details the case that
Senator Kennedy mentioned, involving two law enforcement officers from
Orange, NJ, and points out that that case would have been thrown out of
court. It is signed by numerous chiefs of police and major law
enforcement entities.
The American Bar Association states in their letter of opposition:
S. 397 would preempt State substantive legal standards for
most negligence and product liability actions for this one
industry, abrogating State law in cases in which the
defendant is a gun manufacturer, gun seller, or gun trade
association, and would insulate this new class of protected
defendants from almost all ordinary civil liability actions.
It goes on to say:
There is no evidence that Federal legislation is needed or
justified. There is no hearing record in Congress or other
evidence to contradict the fact that the State courts are
handling their responsibilities competently in this area of
the law.
So all those people who believe in States rights are taking States
rights away for the National Rifle Association.
The American Bar Association also says:
There is no data of any kind to support claims made by the
industry that it is incurring extraordinary costs due to
litigation, that it faces a significant number of suits, or
that current State law is in any way inadequate. The Senate
has not examined the underlying claims of the industry about
State tort cases, choosing not to hold a single hearing on S.
397 or its predecessor bills in the two previous Congresses.
That is amazing to me. It continues:
Proponents of this legislation cannot, in fact, point to a
single court decision, final judgment, or award that has been
paid out that supports their claims of a crisis. All evidence
points to the conclusion that State legislatures and State
courts have been and are actively exercising their
responsibilities in this area of law with little apparent
difficulty.
This letter goes on and again concludes this is going to be the only
industry in the United States with this kind of immunity. There is no
crisis that merits this. There is no hearing record that documents the
need. This really worries me.
Maybe I am biased because I have been a mayor, because I have seen
what happens on the streets. I have seen how guns are misused. I have
seen the threats that criminals with a firearm can be. I have watched,
over the years, as firearms have grown much more sophisticated. Their
killing power is greatly enhanced. The copycat, or the civilian
version, of the 16--the .50 caliber weapon now that is out there--can
send a bullet as large as my hand from Arlington Cemetery into the
Capitol. Don't you think how those weapons are sold and distributed
should prevent negligence? I do.
I guess in all my years in this body I have never been more
disillusioned about how we proceed or why we proceed. We have the
PATRIOT Act that is ready to come to the floor, and we are doing this.
We have an asbestos bill that is ready to come to the floor, and we are
doing this. I am ranking on Military Construction appropriations. We
have passed out a military construction bill with $70 billion in it for
veterans benefits, and we are doing this. There are a number of other
appropriations bills that are ready for floor action. The conference on
the Energy bill just concluded, and we are doing this. The Calendar of
Business contains 100 items ready for Senate floor action, and we are
doing this. There is no hearing record for the previous two Congresses.
More than 50 law professors point out this is a giveaway to one special
industry that no other industry enjoys in the United States of America,
and 30,000 people a year are killed with firearms in this country. I
find it extraordinarily disillusioning.
I know we are going to lose on the motion to proceed. The latest is
that we are not even going to have a vote. It will be voice-voted
because it is so ironclad that this bill is going to swim through. And
then we will watch them try to stop us from putting any amendments on
the bill. It is a sad day in the Senate. It is a regretful day. It is
an extraordinarily disillusioning day.
I thank the Chair and yield the floor. I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. GRAHAM. 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. GRAHAM. Mr. President, it is my understanding that the majority
has control of this next hour under the agreement.
The PRESIDING OFFICER. That is correct.
Mr. GRAHAM. At this time, I will yield to Senator Cornyn 15 minutes.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Nomination of Judge John Roberts
Mr. CORNYN. Mr. President, I would like to take a few minutes to
comment on the nomination of Judge John Roberts to serve on the U.S.
Supreme Court. In particular, I would like to provide some context in a
brief response to some statements that have been made by our colleague
on the other side of the aisle, the senior Senator from New York.
My colleague has repeatedly stated his intention to ask Judge Roberts
during the confirmation proceedings dozens of questions about his
positions on particular constitutional rights, as well as his views of
particular cases that have been decided by the U.S. Supreme Court.
[[Page S9073]]
He provided Judge Roberts a copy of these questions last week when
the two of them met and has stated that he will take ``responsibility
to make sure that those questions are answered.''
Any of our colleagues can, of course, ask whatever questions they
want, but the notion that Judge Roberts puts his confirmation at risk
if he does not answer the questions on the list from the Senator from
New York is contrary to the traditional practice of this body. Nearly
every single one of the questions on that list involves an issue that
is likely to come before the Supreme Court during Justice Roberts's
tenure. Every single Justice confirmed in recent memory has declined to
answer questions of the sort contained on that list.
As Justice Ginsburg has noted:
In accord with longstanding norm, every member of the
current Supreme Court declined to furnish such information to
the Senate.
Every member of the Court has declined to answer such questions
because it has long been understood that forcing nominees to take sides
on issues while under oath compromises their ability to rule
impartially in cases presenting those issues once they sit on the
Court.
Judges are supposed to decide cases after hearing the evidence
presented by the parties involved and the arguments presented by their
lawyers. They are supposed to keep an open and impartial mind.
As Justice Ginsburg has also noted, ``the line each [Justice] drew in
response to preconfirmation questioning is . . . crucial to the health
of the Federal judiciary.''
Judges in our system are like umpires in a baseball game. They are
not supposed to take sides before the game has begun. Judges are not,
for example, supposed to pledge to the Senate that they will be ``on
the side of labor'' or ``on the side of corporations'' once confirmed
to the bench. We should not demand of judges that they are biased on
behalf of a particular party before they have even gotten to the bench
and heard the facts and the arguments of counsel.
The only side that a judge should be on is on the side of the law.
Indeed, that is the oath that each of them take when they are sworn
into office. Sometimes corporations should win in court, and sometimes
they should lose. Sometimes labor should win in court, and sometimes
labor should lose. But it depends on the facts of the case and on the
law that applies to those facts. Any judge worth their salt would
decline to make a commitment ahead of time about how that hypothetical
controversy would come out, not knowing what those facts are or how the
question would be presented.
The Senator from New York has said that his questions do not threaten
Judge Roberts's impartiality because he is not asking about specific
cases that are already pending before the Supreme Court. He
acknowledges that asking questions about those cases--in other words,
cases that are actually pending--would be inappropriate. But I would
ask my colleague to review, as I have, the Supreme Court's pending
cases for the session set to begin in October because it clearly shows
that this proposed list of questions would force Judge Roberts to
prejudge the very pending cases that the Senator has said should be off
limits.
Take, for example, the question of whether Judge Roberts ``believes
Roe v. Wade was correctly decided.'' That is one of the Senator's
questions. The Senator has said specifically that this is a ``question
that should be answered.''
Demanding that Judge Roberts answer questions about Roe v. Wade will
undoubtedly force him to prejudge a case that is currently pending on
the Court's docket. On November 30, the Supreme Court will hear
arguments in Ayotte v. Planned Parenthood, a case involving the
constitutionality of a New Hampshire law requiring a minor to notify
her parents before having an abortion.
It is nearly certain that some party in that litigation, perhaps even
an amicus party, will ask the Court to revisit or overturn Roe v. Wade
because one party does so in nearly every abortion case that reaches
the U.S. Supreme Court.
Thus, whether Roe v. Wade should be overturned is not only an issue
likely to come before the Court during Judge Roberts's tenure, it is
already before the Court.
Accordingly, demanding an answer to a question about Roe v. Wade will
force Judge Roberts to prejudge at least one of the issues in the
Ayotte case, and, no doubt, many others while he is on the bench.
Perhaps an even better example is the Senator's question about
whether ``the Americans with Disabilities Act requires State buildings
to be accessible to the disabled . . . or [whether] sovereign immunity
exempts the States?'' Again, on November 9, the Supreme Court is
scheduled to hear a case called Goodman v. Georgia, a case involving a
suit by a disabled prisoner against the State of Georgia. The only
question in that case is whether the Americans with Disabilities Act
can force States to make prisons accessible to the disabled. Again,
this is precisely the question that the Senator warned Judge Roberts
that he would not have to answer but which, in fact, he is now being
asked to answer.
It is clear then that the questions proposed by the Senator from New
York will force Judge Roberts to prejudge pending cases. This is
something that surely all of us can agree is inappropriate. Thus,
surely all of us can agree in this Chamber that Judge Roberts should be
permitted to decline to answer at least some of the questions that the
Senator from New York has said he will ask him and others like those
questions.
But once it is acknowledged that Judge Roberts should be permitted to
decline to answer the questions involving issues already pending before
the Supreme Court, it becomes clear that Judge Roberts should be
permitted to decline the rest of the questions propounded by the
Senator as well.
There are literally hundreds of cases at this very moment in lower
Federal courts raising virtually all of the questions posed by the
Senator from New York. Judge Roberts should not be forced to guess
which one of them will or will not one day make their way to the High
Court. This is why the Canons of Judicial Ethics counsel judges against
answering questions about issues that are not only already before the
Court, but also those that are likely to come before the Court.
Any case pending in the lower courts meets this definition because it
could be and, indeed, many will be appealed to the U.S. Supreme Court.
Indeed, the danger of demanding that Judge Roberts answer such
questions, even though some may not now be pending before the Court, is
clear from an event involving one of the sitting Justices, Justice
Scalia.
Two years ago, after delivering a speech, Justice Scalia was asked
whether he thought the phrase ``under God''--that is the reference in
the Pledge of Allegiance--was constitutional. There was not at that
time any case involving that question before the Court, so Justice
Scalia answered the question. But there was, as it turns out, a case
involving that precise question pending before a lower Federal court
and, as we all know, that case eventually made its way to the Supreme
Court. As we also know, Justice Scalia was then forced to recuse
himself from hearing that case because the rules of ethics prevent
judges from publicly commenting on pending or impending cases.
We should not force Judge Roberts to choose between confirmation and
recusal. If Judge Roberts is forced to recuse himself in all of the
cases, all of the issues on the Senator's list, then the Supreme Court
will be left shorthanded for much of his tenure.
The Senator from New York says that his list includes some of the
most important questions of the day, and that may well be true. But
surely we want all nine Justices on the Supreme Court to answer those
important questions in those cases as they are presented.
Judge Roberts should be permitted to do what we have always permitted
nominees to do, and that is to decline to answer questions that might
call into question his impartiality at a later date. We have always
respected the right of nominees to decline to answer questions that
make them feel as though their ability to do their job would be
compromised. That is in the interest of a value that we all hold dear,
and that is the independence of the judiciary.
[[Page S9074]]
I hope and expect that we will not break that longstanding tradition
with Judge Roberts.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Ms. Murkowski). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FRIST. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FRIST. Madam President, the current Congress has taken a stand
against frivolous lawsuits, and we have done so in a number of ways as
we paint a portrait of the fact that frivolous lawsuits today are not
in the interest of the American people. We addressed it in class action
reform. We addressed it to a degree with bankruptcy reform, returning
to personal responsibility. We will do it with asbestos reform, an
issue that has for the last 10, 15, 20 years unfairly resulted in the
trial lawyers doing very well, but the patient with cancer,
mesothelioma, not being compensated, the victims not being compensated.
We will be addressing medical liability at some point in time,
hopefully in this Congress, and then gun liability, the Protection of
Lawful Commerce in Arms Act, which is being addressed today and
tomorrow and possibly the next day.
This bill is directed at the frivolous lawsuits that today are aimed
at gun manufacturers and people who are selling firearms. The bill
places responsibility on the criminal for the unlawful use of guns, and
that is where that responsibility belongs.
Many people believe that the whole gun manufacturing industry is a
hugely profitable industry, and that is wrong. It is not. The gun
industry is relatively modest. In 1999, the most recent year I have
seen, there was an industry total profit of about $200 million. If we
put all the manufacturers of firearms together, they would not even
make the Fortune 500 list.
More important than size is the hard-working people who are
manufacturing guns. I have had the opportunity, as many of our
colleagues have, to go to these wonderful facilities with hard-working
Americans, typically in rural communities, who are manufacturing and
putting together these guns.
The firearm maker I visited was in a rural area with not that many
employees. They were putting together shotguns which many of us use to
hunt over the course of the year. Right now my favorite avocation is
taking my sons hunting on the weekend, to be together and share
fellowship.
I mention that because when one tours these gun manufacturing
facilities, they realize that frivolous lawsuits drive people out of
the business, which is a loss of jobs. Those jobs happen to be
predominantly in rural communities. Anti-gun crusaders say that the
firearm business, which today is one of the most regulated industries
in America, should be responsible for the criminal acts of others. They
believe it is OK to use lawsuits to circumvent the democratic process
and legislate actually from the bench, and they say so themselves.
If we turn to the trial attorneys and look at the quotations, one
trial attorney claims that what has happened is that the legislatures
have failed. Lawyers are taking up the slack, said the trial attorney.
Another anti-gun trial lawyer says that trial lawyers are ``the new arm
of government,'' replacing the legislative branch ``that's not working
anymore.'' These trial lawyers apparently believe they are above the
voters, that they are above the legislative process. I do not agree,
most Americans do not agree, and thus, we have the bill today.
Most Americans think there is too much litigation and not too little
litigation in this country. Legislatures in 33 States have passed laws
to preempt frivolous gun lawsuits. They recognize that our Constitution
protects the right to keep and bear arms. In fact, 53 percent of
American households today own a gun. Still, the anti-gun crusaders,
aided and abetted by powerful trial lawyers, charge ahead. They know
that all it takes is one successful lawsuit to drive a manufacturer out
of business. As one chapter of the United Steelworkers of America
points out, ``we are just one defeat away from bankruptcy.''
Since 1997, more than 30 cities and counties have sued firearms
companies in an attempt to force them to change the way they make and
sell guns. Firearm manufacturers have already spent more than $200
million in legal fees to defend themselves. Meanwhile, most of these
cases have been dismissed. The Supreme Court of New York says:
[The] courts are the least suited, least equipped, and thus
the least appropriate branch of government to regulate and
micro-manage the manufacturing, marketing, distribution and
sale of handguns.
The Florida Third District Court of Appeals agrees, adding:
The power to legislate belongs not to the judicial branch
of government but to the legislative branch.
Some cases, however, are still pending and are slated to go forward.
Thus, it is critical that we act now, that we pass this legislation
now.
In California, former Governor Gray Davis signed legislation
explicitly authorizing lawsuits against gunmakers. Because the firearms
business is relatively small, just one big verdict--maybe not even
big--a substantial verdict could bankrupt the entire industry. In
California, that is a real possibility. If the gun industry is forced
into bankruptcy, the right to keep and bear arms will be a right in
name only. Even if some gunmakers are able to hold on, the prices for
firearms, whether it is the shotgun one buys to go hunting with or
whatever the firearm might be, will go sky-high.
There is another important issue, which is little recognized, and it
has been mentioned on the Senate floor, but I wanted to mention it
again because I am sure others will come forward because the problem is
so real, it is so apparent, and that is that America relies on private
gun manufacturers to equip our soldiers and our law enforcement
officers with the arms they need to protect us or to fight for our
freedom. The guns our police officers and soldiers carry are made in
the United States by hard-working Americans.
The main manufacturer of guns in my home State, just as one example,
supplies important small arms to the military. So far, this middle
Tennessee company has not been sued. In fact, Tennessee passed some
liability protections back in 1999. But if they are sued and put out of
business, the military would lose a critically important supplier, and
70 Tennesseans for this one small company, one small employer, would
lose their jobs.
We all agree that guns need to be kept out of the hands of criminals,
and that is why we have innumerable, countless laws and regulations to
stop illegal gun sales. But we also cannot let frivolous lawsuits strip
our police officers and our soldiers of the guns they need to protect
us. We cannot allow unfair litigation to cripple our national security.
Our sympathies always first and foremost go to crime victims and
families, and no one in any way deserves to be harmed by a criminal
wielding any kind of a weapon, be it a gun or a knife or anything else.
But we have to place the blame where it belongs, not on the people
working in that factory I visited that makes these firearms. We need to
place it at the feet of the violent criminals themselves, those who
commit the crimes and threaten our communities. They are the ones
responsible, and they are the ones who should be held accountable.
Blaming gun manufacturers misses the real problem. It punishes law-
abiding owners and undermines our constitutionally protected rights.
Even if litigation managed to bankrupt law-abiding gun manufacturers,
it is not going to stop the criminals from getting guns elsewhere.
So I urge my colleagues to help stop frivolous gun litigation. We can
accomplish that by allowing this legislation first to come to the floor
and then passing this legislation. A vote for reform is a vote for
security, and a vote for reform is a vote for common sense.
The PRESIDING OFFICER. The majority whip.
following the ginsburg standard
Mr. McCONNELL. Madam President, I rise to speak on the nomination of
Judge John Roberts to be the next Justice of the Supreme Court of the
United States. As we are beginning to learn, the President has selected
one of the foremost legal minds of his generation. Many of my
colleagues have already spoken Judge Roberts' praises on
[[Page S9075]]
this floor, and I agree with all of them. Judge Roberts possesses a
keen intellect, an open mind, very importantly, a judicious
temperament, and a sterling reputation for integrity. He will
faithfully apply the Constitution, not legislate from the bench. He
should be confirmed in time for the Court to operate at full strength
by October 3.
Looking to recent history, and looking more specifically to the most
recent Supreme Court nominations of Justices Ruth Bader Ginsburg and
Stephen Breyer, I would think that I should not have cause to worry how
this nominee will be treated. Then, as now, the President's party
controlled the Senate. Then, as now, the President nominated a jurist
whose credentials could not be questioned. The only difference is that
the occupant of the White House then was a Democrat, and the current
President is a Republican.
But that one simple fact may make all the difference to some of my
friends on the other side of the aisle.
In recent weeks I have begun to worry that some of my Democratic
friends have forgotten the standard to which the Senate held Justices
Breyer and Ginsburg when they were nominees. Judge Roberts deserves the
same standard, no more or no less, than the nominees of President
Clinton. But I fear that ``the Ginsburg-Breyer standard''--which I will
call the ``Ginsburg standard'' for short--is giving way to a double
standard. I would like to remind my colleagues of recent history, so we
may draw some lessons from the confirmation processes of Justices
Breyer and Ginsburg.
Both Ruth Bader Ginsburg and Stephen Breyer came to the Senate with a
distinguished record and a deserved reputation for a fine legal mind.
But Justice Ginsburg also came with a long record of liberal advocacy
and thought-provoking, to put it mildly, statements. Yet the Senate
handled her nomination in a manner that brought credit to the
institution. It followed a respectful process. Indeed, it can be said
that ``respect''--both for the President and his nominee--was a
hallmark of her nomination, and the nomination of Stephen Breyer.
In the Ginsburg nomination, the Senate recognized that most judicial
nominees, including Justice Ginsburg, have at one point been private
practitioners of the law. The Senate recognized that it is unfair to
attribute to lawyers the actions of their clients. Lawyers are zealous
advocates for their clients. Lawyers speak for their clients, not
themselves.
After all, if a lawyer defends a client accused of stealing a
chicken, it does not then follow that the lawyer is a chicken thief.
Again, if a lawyer defends a client accused of stealing a chicken, it
does not then follow that the lawyer is a chicken thief. By following
this standard, the Senate did not hold against Justice Ginsburg the
policy positions of her most famous client, the American Civil
Liberties Union.
As we know, the ACLU takes consistently liberal positions on high-
profile issues, positions that many Americans strongly disagree with. I
respect that. I do not often agree with the ACLU, but its members
believe strongly, and they fight for their beliefs. There is certainly
nothing but admiration we can have for that.
During Justice Ginsburg's tenure as a general counsel and a member of
its board, the ACLU, for example, opposed restrictions on pornography.
Yet even though her client had adopted controversial policy positions,
the Senate did not attribute them to Justice Ginsburg, let alone
disqualify her from service on the Supreme Court because of them.
In addition, this country values a healthy ``market-place of ideas.''
So, the Senate did not block Justice Ginsburg's nomination because she
made controversial and thought-provoking statements in her private
capacity as a legal thinker. Those thoughts ranged from suggesting a
constitutional right to prostitution, to proposing abolishing
``Mother's Day'' and ``Father's Day'' in favor of a unisex ``Parent's
Day.'' Why did we not hold those views against her? Because by a 96-3
margin, we decided she had the integrity to apply the law fairly to
each case, despite some rather, to put it mildly, provocative personal
views that had been expressed over the years in her writing.
With both the Ginsburg and Breyer nominations, the Senate also
continued its long-standing practice of respecting a nominee's right
not to disclose personal views or to answer questions that could
prejudge cases or issues. Senators may ask a nominee whatever questions
they want. But the nominee also has the right not to comment on matters
the nominee feels could compromise their judicial independence.
For example, during his Supreme Court confirmation hearing in 1967,
Thurgood Marshall, before the Senate Judiciary Committee, declined to
answer a question regarding the Fifth Amendment. He explained.
I do not think you want me to be in a position of giving
you a statement on the Fifth Amendment and then, if I am
confirmed, sit on the Court and when a Fifth Amendment case
comes up, I will have to disqualify myself.
Justice O'Connor, whom our Democratic colleagues have been citing so
glowingly in the last few weeks, also demurred regarding questions she
thought would compromise her independence. One of those questions asked
her view of a case that had already been decided, Roe v. Wade; and in
explaining her position, she said:
I feel it is improper for me to endorse or criticize a
decision which may well come back before the Court in one
form or another and indeed appears to be coming back with
some regularity in a variety of contexts. I do not think we
have seen the end of that issue or that holding and that is
the concern I have about expressing an endorsement or
criticism of that holding.''
The Senate continued this practice with the Breyer and Ginsburg
nominations. It did not require them to state their private views, or
to prejudge matters before they had read one word of a brief or heard
one word of oral argument.
Justice Breyer explained why he had to be careful about pre-
committing to matters:
I do not want to predict or to commit myself on an open
issue that I feel is going to come up in the Court. . . .
There are two real reasons. The first real reason is how
often it is when we express ourselves casually or express
ourselves without thorough briefing and thorough thought
about a matter that I or some other judge might make a
mistake. . . . The other reason, which is equally important,
is . . . it is so important that the clients and the lawyers
understand that judges are really open-minded.
The Senate respected Justice Breyer's concerns about prejudging and
confirmed him by an overwhelming 87-9 margin. This respect extended to
cases that had already been decided. For example, our late colleague,
Senator Thurmond, asked Justice Breyer about Roe v. Wade, a case that
had been decided 21 years earlier. Like Justice O'Connor, Justice
Breyer declined to comment, stating:
The questions that you are putting to me are matters of how
that basic right applies, where it applies, under what
circumstances. And I do not think I should go into those for
the reason that those are likely to be the subject of
litigation in front of the Court.
Senator Thurmond respected Justice Breyer's position, and did not
hold against Justice Breyer his decision not to answer that question.
Other Senators did the same on a host of issues.
Justice Breyer also declined to give his personal views. He
explained, ``The reason that I hesitate to say what I think as a person
as opposed to a judge is because down that road are a whole host of
subjective beliefs, many of which I would try to abstract from.'' As
result, he declined to give his personal views on whether the death
penalty was cruel and unusual, what the scope of the exclusionary rule
should be and whether he supported tort reform.
Justice Ginsburg also invoked her prerogative not to answer questions
that could compromise her independence, and both sides of the aisle
respected her decision. Indeed, Senator Biden, who was then chairman,
encouraged her not to answer questions that would preview her position
on a legal issue. He told her:
I will have statements that I made during the process read
back to me. But I do think it is appropriate to point out,
Judge, that you not only have a right to choose what you will
answer and not answer, but in my view you should not answer a
question of what your view will be on an issue that clearly
is going to come before the Court in 50 different forms,
probably, over your tenure on the Court.
Justice Ginsburg's effort to remain unbiased--like Justices O'Connor
and Breyer--included not commenting on cases that had already been
decided.
[[Page S9076]]
For example, Justice Ginsburg was asked how she would have ruled in
Rust v. Sullivan, an abortion case that had already been decided. She
declined to answer, explaining her position with a metaphor of the
slippery slope:
I sense that I am in the position of a skier at the top of
that hill, because you are asking me how I would have voted
in Rust v. Sullivan. Another member of this committee would
like to know how I might vote in that case or another one. I
have resisted descending that slope, because once you ask me
about this case, then you will ask me about another case that
is over and done, and another case. . . . If I address the
question here, if I tell this legislative chamber what my
vote will be, then my position as a judge could be
compromised.
Indeed, Justice Ginsburg declined to comment 55 times on a variety of
legal questions. That is 55 times. These included: If the second
amendment guarantees an individual right to bear arms; If the death
penalty is cruel and unusual punishment under the eighth amendment; If
school vouchers for children are constitutional under the Establishment
Clause; If the Supreme Court had interpreted too narrowly the Voting
Rights Act; If the first amendment was intended to erect a wall of
separation between church and state; and If the Federal Government may
prohibit abortion clinics from using Federal funds to advocate
performing abortions.
That is a lot of ``ifs'' she declined to answer and yet was confirmed
overwhelmingly.
Both Justices Ginsburg and Breyer were reported out of the committee
promptly; Republicans did not try to delay the committee vote. Nor did
Republicans try to deny these nominees the courtesy of an up-or-down
vote on the Senate floor.
As I mentioned, Justice Ginsburg was confirmed 96-3 after 2 days of
debate. Justice Breyer was confirmed 87-9 after only a single day of
debate. By giving these nominees up-or-down votes, the Senate continued
the practice it had followed with even contested Supreme Court
nominees, like Robert Bork and Clarence Thomas. The average time for
Senate consideration of the Ginsburg and Breyer nominations was 58
days. For Justice Ginsburg's nomination, the entire process lasted only
42 days from nomination to confirmation.
It troubles us on this side of the aisle, and it should trouble all
Americans, when different standards are applied to different people for
no valid reason. Unfortunately, this already appears to be happening
with respect to the nomination of Judge John Roberts.
Judge Roberts will no doubt be as forthcoming as he properly can be
when he testifies. However, as with all nominees, there are some
questions that he will not be able to answer. His decision ought to be
respected as were the decisions of Justice Ginsburg and Justice Breyer.
But our colleague Senator Schumer has declared that for this
nomination--forget all the prior nominees--``Every question is a
legitimate question, period.'' And he plans on asking Judge Roberts
some 70 questions. These include specific issues that will likely come
before the Court. In addition, he wants Judge Roberts to discuss how he
would have voted in specific cases, such as New York Times v. Sullivan
and United States v. Lopez.
If our friend from New York insists that Judge Roberts answers these
types of questions, it will be a radical departure from the practice
that the committee followed with Justice O'Connor, Justice Breyer,
Justice Ginsburg and other Supreme Court nominees. These nominees were
given discretion in not answering questions on issues that might come
before the Court. It was agreed that it would be improper for a
potential justice to pre-commit on a matter.
We on this side of the aisle are not asking the Senate to change its
practices or standards. We are not asking that this President be
treated better than his immediate predecessor. We are asking for equal
treatment. In short, we are simply asking that the Senate follow the
Ginsburg standard, not a double standard.
I am hopeful that the courtesy and respect the Senate showed
President Clinton's nominees, and prior Supreme Court nominees, will
continue with Judge Roberts. After all, it's only fair.
I yield the floor.
Mr. HATCH. It is my understanding the Senator from South Carolina
would like to take 2 minutes. If I can be recognized after that, I
would appreciate it.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. GRAHAM. Madam President, I rise to speak in support of S. 397,
protecting gun manufacturers from lawsuits that basically would hold
the manufacturer liable if someone bought a gun and intentionally
committed a crime with it, was irresponsible in its use. I believe
everybody should have their day in court for a legitimate grievance.
But it is not legitimate, in my opinion, to sue someone who makes a gun
lawfully, that is not defective, and that person is held responsible in
court because some other person who bought the gun decides to misuse
it, to commit a crime with it. That would ruin our economy. It would
fundamentally change personal responsibility in America. This bill is a
cultural moment in American history.
The second amendment gives us a right to bear arms, but it is not
unlimited. We have to be responsible. We have to responsibly use that
right. The idea that you could sue someone who is lawfully in business
because someone else chooses to do something bad will destroy the way
America works. It is a ridiculous concept.
Suing gun manufacturers for defective products is included in this
bill. Everyone should stand behind what they make and put in the stream
of commerce. That has not changed. The only thing that has changed is
we are cutting off a line of legal reasoning that has extended to fast
food now: ``The reason I have health problems is because you served me
food that was bad for me.'' The bottom line is, if we go down this
road, we are going to make America noncompetitive in the 21st century,
and we are going to rewrite the way America works--to our detriment.
The rule should be simple. If you make a lawful product and someone
chooses to buy it and they decide to misuse it, it is not your fault,
it is theirs. You are not going to have your money taken because
somebody else messed up. Madam President, $200 million in legal fees
have already been incurred by gun manufacturers because of this line of
reasoning. You win in America; you still lose.
If you want to make sure our country is secure in the future, let's
make sure people can manufacture arms in America and we are not
dependent on foreign sources for arms for the public or the military.
There is a lot at stake here. I enthusiastically support this
limitation on what I think would be not only a frivolous lawsuit, but a
dangerous concept that will change America for the worse.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Madam President, I rise today to express my continued,
strong support of S. 397, the gun liability bill.
As I outlined yesterday, this legislation is a necessary and vital
response to the growing problem of unfounded lawsuits filed against gun
manufacturers and sellers. These suits are being filed in no small part
with the intention of trying to drive them out of business.
These lawsuits, citing deceptive marketing or some other pretext,
continue to be filed in a number of States, and they continue to be
unsound.
These lawsuits claim that sellers give the false impression that gun
ownership enhances personal safety or that sellers should know that
certain guns will be used illegally. That is pure bunk. Let's look at
the truth.
The fact is that none of these lawsuits are aimed at the actual
wrongdoer who kills or injures another with a gun--none. Instead, the
lawsuits are focused on legitimate, law-abiding businesses.
It is this kind of rampant, race-to-sue mentality, that fuels our
tort-happy, litigious culture. It has to stop.
In its Statement of Administration Policy, the White House has urged
us to pass a clean bill, in order to ensure enactment of the
legislation this year. Amendments that would delay enactment beyond
this year are simply unacceptable.
The administration knows what we also know: This is a modest bill to
help prevent the gun industry from a tidal wave of baseless lawsuits.
It is also highly relevant, I believe, that the leading suppliers of
small
[[Page S9077]]
arms to our Armed Forces are the same targets of these reckless
lawsuits: Beretta, Bushmaster, Remington, Smith & Wesson.
These are the companies we rely on for small arms for the military.
But if the proliferation of lawsuits against them continues, it could
jeopardize the supplies we receive and need for our military.
This bill does nothing more than prohibit--with five exceptions
lawsuits against manufacturers or sellers of guns and ammunition for
damages ``resulting from the criminal or unlawful misuse'' of
nondefective guns and ammunition.
Let me repeat that: ``resulting from the criminal or unlawful
misuse'' of nondefective guns and ammunition.
This bill is not a license for the gun industry to act irresponsibly.
If a manufacturer or seller does not operate entirely within Federal
and State law, it is not entitled to the protection of this
legislation.
I should also note that this bill carefully preserves the right of
individuals to have their day in court with civil liability actions
where negligence is truly an issue, or where there were knowing
violations of laws on gun sales.
It is also noteworthy that in a recent poll by Moore Information
Public Opinion Research, 79 percent of Americans do not believe that
firearms manufacturers should be held legally responsible for violence
committed by armed criminals.
Seventy-nine percent!
And in this poll, 71 percent of Democrats hold this view. So this
should not be a partisan issue.
Let me just read a postcard from one of the thousands of people who
have written me in support of this bill from Utah. This Utahn, from the
city of Hyde Park, writes:
Dear Senator Hatch: Please give your full support for S.
397 with no anti-gun amendments. As a business woman I know
the strength of America is productive businesses that keep
America strong and my fellow citizens employed!
These are the people I represent. I not only represent them, I am
proud to be one of them. I am proud to help small businesses. And I am
proud to help gun owners.
Let me just say a word about the precedents for this legislation.
Congress has the power--and the duty--to prevent activists from abusing
the courts to destroy interstate commerce.
We did this in the General Aviation Revitalization Act of 1994 where
we protected manufacturers of small planes against personal injury
lawsuits. That act superseded State law, as does the gun liability
bill.
There are many other precedents for abusive lawsuit protection,
including light aircraft manufacturers, food donors, charitable
volunteers, medical implant manufacturers and makers of anti-terrorism
technology, just to mention a few.
There is simply no reason the gun makers should have to continue to
defend these types of meritless lawsuits. We must protect against the
potential harm to interstate commerce. The gun industry has already had
to bear over $200 million in defense costs thus far.
The bottom line is that this is a reasonable measure to prevent a
growing abuse of our civil justice system.
The bill provides carefully tailored protections for legitimate
lawsuits, such as those where there are knowing violations of gun sale
laws, or those based on traditional grounds including negligent
entrustment or breach of contract.
We simply should not force a lawful manufacturer or seller to be
responsible for criminal and unlawful misuse of its product by others.
We do not hold the manufacturers of matches responsible for arson for
this same reason.
Individuals who misuse lawful products should be held responsible,
not those who make the lawful products.
In closing, I leave my colleagues with one last thought.
These abusive gun liability actions usurp the authority of the
Congress and of State legislators. They are an obvious and desperate
attempt to enact restrictions that have been widely rejected.
It is for this reason that many States have enacted statutes to
prevent this type of litigation. Congress should do the same.
As with class action lawsuits, the few States that allow jackpot
jurisdictions can create a disastrous economic effect across the entire
country, and across an entire industry.
We cannot allow this to happen. We must stop these abusive lawsuits.
I urge my colleagues to vote for this important legislation.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. I thank my colleague from Utah for relinquishing the rest
of the time, and I join my colleague in strong support of S. 397, the
gun liability bill. But I also wanted to address a topic that continues
to draw much heat and discussion here on this floor and in the media.
In the heat of political rhetoric over Iraq and the administration's
prosecution of the global war on terror, much has been lost and not all
the facts are being presented in the matter. Unfortunately, some are
quick to exploit the situation in Iraq and the global war on terror
and, by extension, the brave men and women prosecuting these conflicts
as cannon fodder in their attacks on the President from the media and
others. These folks hope to undermine the administration's credibility
with a keen eye on gaining political advantage. However, in the end,
those efforts serve only to undermine the noble efforts of our Armed
Forces, the men and women of our intelligence community who take the
fight to the enemy every day. Most damning, however, is that we have
yet to see those who strongly criticize the President's policies
present any comprehensive, workable or viable alternatives.
This kind of politicizing only serves to erode the morale of the men
and women in the field who do the heavy lifting. It is nothing short of
shameful when these warriors' leaders in Congress bicker about
nonsubstantive issues while they in the field are united and committed
to the missions of freedom and keeping our country safe. The armed
conflicts in which our young men and women sacrifice so much should be
the topic of thoughtful debate.
However, there is no place for this kind of posturing in the business
of war because it merely emboldens the enemy and belittles the efforts
of our troops.
Let's look at the facts. Some argue there is no connection between
Iraq and 9/11. Look at the facts. In late 1994 or early 1995, Saddam
Hussein met with a senior Iraqi intelligence officer in Khartoum. In
March 1998, after bin Laden's public fatwah against the United States,
two al-Qaida members reportedly went to Iraq to meet with Iraqi
intelligence. In July, an Iraqi delegation traveled to Afghanistan to
meet first with the Taliban and then bin Laden. ``One reliable source
reported bin Laden's having met with Iraqi officials, who `may have
offered him asylum'.'' These are quotes from the bipartisan 9/11
Commission Report published in July 2004.
I do not think one could argue that these facts are either agenda-
driven or biased. These facts demonstrate that prior to the 9/11
attacks, al-Qaida and bin Laden himself maintained contacts with the
Iraqi regime and that the Iraqis even offered to harbor bin Laden.
Accordingly, a categorical denial that ``Iraq had nothing to do with
9/11'' cannot be made responsibly.
Next contention: Iraq had and has nothing to do with the global war
on terror. That is flat dead wrong. Hardly anyone can refute the fact
that Iraq has become the gathering place for Sunni extremists who wish
to wage war against the United States. From their optic, the terrorists
have a plethora of targets with the presence of U.S. forces in Iraq.
They are also motivated to combat our policy of fostering a
pluralistic, open, and democratic government in Iraq. True meaning.
Instead, the terrorists wish to distort Islam's true meaning, wage an
unholy war against Iraq's Shi'a, and induce a sectarian civil war
during the aftermath of which the terrorists would like to establish a
Taliban-like state in Iraq. These same terrorists are also motivated by
their desire to evict U.S. forces not only from Iraq but from the
Greater Arab Middle East, and they view our mission in Iraq as an act
of occupation when it is a battle of liberation. The battle is one of
hearts and minds; a battle, however, that the Iraqi people are
determined to win, along with our assistance, as demonstrated
[[Page S9078]]
by the 58-percent voter turnout in January, where they elected a new
national government, and also by the continuing willingness of Iraqis--
to face the danger of terrorist suicide attacks--to sign up to serve to
keep the peace.
But terrorism is not a new phenomenon in Iraq. Chief among the
terrorists in Iraq today, Abu Musab al-Zarqawi, was known to have been
in Baghdad since at least mid-2002. You might ask, how can a terrorist
of Zarqawi's notoriety operate, let alone live, in a Stalinist police
state such as that of Saddam's Iraq, without the former regime's
knowledge, if not consent. The answer is simple. Saddam knew Zarqawi
was there, undoubtedly.
When asked about Iraq's al-Qaida relationship by CNN's Wolf Blitzer,
on February 5, 2003, the vice chair of our Senate Intelligence
Committee agreed that his presence in Iraq before the war was
troubling. He said, ``The fact that Zarqawi is very close to bin Laden
puts at rest, in fairly dramatic terms, that there is at least
substantial connection between Saddam and al-Qaida.''
However, long before Zarqawi descended upon Iraq, Abu Nidal, the
secular Palestinian terrorist leader and founder of the Abu Nidal
organization, lived in Iraq from 1998 until he died in 2002. Over the
years, that organization carried out terrorist attacks in 20 countries,
killing or injuring almost 900 people, including hijacking of Pan Am
flight 373 in Karachi in 1986 and the assassination of a Jordanian
diplomat in Lebanon in 1994. Abu Nidal was arguably the world's most
ruthless terrorist until the rise of Saddam Hussein. He lived and
flourished in Saddam's Iraq for 4 years.
In 1993, the Iraqi Intelligence Service directed and pursued an
attempt to assassinate, through the use of a powerful car bomb, former
President George Bush and the Emir of Kuwait. Kuwait authorities
thwarted the terrorist plot and arrested 16 suspects led by two Iraqi
nationals.
Finally, Abdul Rahman Yasin, who was indicted in the United States
for mixing the chemicals in the bomb that exploded beneath the World
Trade Center in 1993, arrived in Baghdad during July of 1994. Upon his
arrival, Yasin traveled freely and received both a house and a monthly
stipend from the Iraqi Government during his stay.
Next contention: Iraq did not present a danger to the United States
at the time we commenced Operation Iraqi Freedom. Listen to the people
who looked at the situation. During a July 28, 2004, Senate Armed
Services Committee hearing, the former head of the Iraq survey group
who went in and looked at the situation in Iraq after we occupied it,
Dr. David Kay, noted, ``It was reasonable to conclude that Iraq posed
an imminent threat. What we learned during the inspection made Iraq a
more dangerous place potentially than in fact we thought it was even
before the war.'' He went on to say, ``I think the world is far safer
with the disappearance and removal of Saddam Hussein. This may be one
of these cases where he was more dangerous than we thought.'' The head
of the Iraqi survey group.
Next contention: Iraq would have supplied WMD to terrorists. During
that same hearing Dr. Kay added, ``After 1998, Iraq became a regime
that was totally corrupt. Individuals were out for their own
protection, and in a world where we know others are seeking WMD, the
likelihood at some point in the future of a seller and a buyer meeting
up would have made Iraq a far more dangerous country than even we
anticipated.''
The 9/11 Commission during the 1990s found:
Bin Ladin sought the capability to kill on a mass scale.
Bin Ladin's aides received word that a Sudanese military
officer who had been a member of the previous government
cabinet was offering to sell weapons grade uranium. After a
number of contacts were made through intermediaries, the
officer set the price at $1.5 million which did not deter Bin
Ladin. Al-Qaida representatives asked to inspect the uranium
and were shown a cylinder about 3 feet long and one thought
he could pronounce it genuine.
Al-Qaida apparently purchased it, and it turned out that it was not a
legitimate one.
Given al-Qaida's demonstrated desire to acquire WMD and the Iraqi
Government's likelihood of sharing WMD technology or actual devices
with anyone for the right price, no one can dispute that the liberation
of Iraq from Saddam's dictatorial and corrupt regime was a prudent
offensive strike in the war on terror.
Finally, some would argue Iraq is a quagmire and not winnable. But
listen to the troops. They say otherwise. These are the boots on the
ground, the soldiers, the marines. During a recent trip to Iraq,
journalist Michael Graham spoke to more than 100 soldiers, sailors,
airmen, and marines, with different ranks and duties, at their forward
operating bases, and they overwhelmingly had the same things to say
about the war in Iraq. And he went on to say that these 100 American
troops made the following points: We believe in the mission. We are
making progress. The Iraqis are making progress too. We are going to
win.
I believe that says it all. I ask unanimous consent that a copy of
his article be printed in the Record after my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. BOND. I believe that article says it all. Michael Graham's
sampling of U.S. military personnel was random, varied, not controlled
by the Pentagon. The sample may be small, but 100 troops believe in the
war in Iraq and that we are going to win.
History teaches us that the first casualty of war is truth. The first
casualty of political battles can often be the men and women fighting
the real battles while executing our Nation's policies. Let us not
debase the memories of those who have laid such a sacrifice on the
altar of freedom with meaningless finger-pointing exercises. Let's
speak with truth about the issues and facts at hand.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. BOND. I thank the Chair, and I yield the floor.
Exhibit 1
Handing Over the Mic
Troops talk from Iraq
(By Michael Graham)
I just spent a week in Iraq and Kuwait cultivating a skill
that I, as a talk-show host, have found nearly impossible to
master: shutting up.
Turns out, it was easier than I thought, at least in Iraq.
When you're listening to a 20-year-old kid from Indiana tell
how he earned his second Purple Heart, speechlessness is the
natural reaction.
I was there as part of the much-maligned ``Truth Tour''
organized by Move America Forward, a conservative group based
in California. According to reports in the mainstream media,
I was part of a ``propaganda'' junket paid for by the
Pentagon to buy some desperately needed positive coverage of
the unwinnable military quagmire. All I can say is: If this
was a junket, it was the worst-run junket in the history of
public relations.
My radio station and I had to pay all my expenses, I slept
on a bare cot in a tent in the desert, and at some locations
the only available ``food'' (and I use that term under
protest) were MREs--which stands for ``Meals Ready to Eat . .
. assuming you've already eaten both shoes and most of your
undergarments.''
This alleged ``junket'' failed in another way, too. The
Pentagon didn't control what went out over the airwaves. Then
again, neither did I. I left it all up to the soldiers.
I traveled about Iraq from Camp Victory at the Baghdad
International Airport to Camp Prosperity on the very edge of
the Red Zone, then down the Baghdad Highway to Camp Falcon,
and on to the Command Headquarters in the heart of the city
and, eventually, to the deserts of Kuwait and Camp Arifjan.
And everywhere I went, I flipped on my mic, sat back, and let
the troops tell their story.
These soldiers weren't stooges from Public Affairs or
handpicked flag wavers foist on me by media handlers. I found
some in the mess hall, others working security checkpoints;
others sought me out because they have family living in the
D.C. area where my radio show is broadcast. The least
fortunate were the soldiers in Humvees stuck with ``tourist
duty,'' four friendly but serious young men who got stuck
with a couple of bonehead radio hosts riding along on patrol.
In all, I spoke to more than 100 soldiers, sailors, airmen,
and Marines, with different ranks and different duties at
their FOBs (forward operating base), and yet they
overwhelmingly had the same things to say about the war in
Iraq:
``We believe in the mission.''
``We're making progress.''
``The Iraqis are making progress, too.''
And, perhaps most important of all: ``We're going to win.''
I expected to hear this sort of positive assessment from
General George Casey, commander of operations in Iraq, when I
interviewed him at his headquarters deep inside the
International Zone. When he pointed out that, one year ago,
there was just one standing battalion in the Iraqi army, but
there are
[[Page S9079]]
107 battalions today, he was doing his job of supporting the
war. And I expected it from Lt. General Steve Whitcomb,
commanding general of the 3rd Army, as he talked about
successfully moving more than one million gallons of fuel
across Iraq every day, despite the best efforts of the
insurgents.
Generals are supposed to be gung ho. It comes with the pay
grade.
But I heard the same, positive assessments from 23-year-old
sergeants from New Iberia, La., and from PFCs from Wisconsin
and Alabama. I heard it from Lieutenant Li, whose Humvee had
been hit by IEDs so many times he'd lost count. I heard it
from Airman Truong, who was born in Vietnam and had recently
returned to his native country to marry. Two weeks after ``I
do,'' Airman Truong was headed back to Kuwait to do his duty
for his adopted country.
Again and again, from ``white-collar'' soldiers working in
the relative safety of Camp Victory at the Baghdad airport to
the ``real'' soldiers patrolling Route Irish (a.k.a the
``Highway of Death''), I heard that America and their Iraqi-
army allies are winning the war against the insurgents. I was
told again and again by the soldiers themselves that their
(our) cause is just, the strategy is working, and the enemy
they fight represents evil itself.
In other words, I heard things seldom heard on CBS or read
in the pages of the New York Times.
It was only a week, and I have my obvious Bush-supporting,
troop-cheering biases, but how much closer can a reporter get
to delivering unspun, bias-free objective reporting than
live-mic broadcasting instantly back to the states? No edits
or filters or editorial meetings. Just the young men in the
hot desert telling what they've seen, what they've heard, and
what they now believe based on those experiences.
Isn't it at least significant that not one in 100 thought
invading Iraq was a mistake? Was it mere coincidence that a
random selection of 100 soldiers all believe their mission is
worthwhile? Should we detect the hand of the Vast, Right-Wing
Conspiracy in the fact that the vast majority of the troops
find the media coverage of the war ignorant, harmful, or
both?
I'm proud to say that, for a week, the soldiers had their
say. If I were the editor of a major daily newspaper or a
national network, I would be concerned that what they said is
so contrary to what I am printing or broadcasting.
But the mainstream media don't need to hear from the
soldiers. They already know that the war was a terrible
mistake, that the world would be safer if we'd left Saddam in
power, and that there is no chance for victory in Iraq.
Me, I'm not so smart. I like to let the guys on the ground
tell their story. I believe it is completely possible that
they know something that I--and the New York Times editorial
page--do not.
The PRESIDING OFFICER (Mr. Chafee). The next hour is controlled by
the minority.
The Senator from Minnesota.
Mr. DAYTON. Mr. President, I am one Member, along with a number of my
colleagues, who believes we should be debating not this gun liability
bill but the Department of Defense authorization bill for the coming
fiscal year. I serve on that committee. It was a good bipartisan
effort. I was planning to offer an amendment to add $120 million for
childcare and family support for the families of reservists and
National Guard men and women who are called to active duty. Others had
amendments, including one regarding BRAC, of particular note to me and
others in Minnesota affected by that process.
But we are not on that bill. Instead, we are dealing with the most
special interest legislation I have encountered in my 4\1/2\ years in
the Senate. We are going to leave at the end of this week for a month
and we have one last window of opportunity to take up what presumably
would be the most important measure before the Nation and the Senate.
Instead, we get this special interest bill.
We are not on stem cell legislation that would allow us to create a
medically and scientifically based framework to protect the sanctity of
human life or prohibit cloning, and yet still allow medical research
that could save many thousands of lives for years to come. That is not
the Republican leadership's top priority.
Nor is the constitutional amendment to prohibit the burning or
desecration of the American flag, of which I am a proud cosponsor,
brought to the Senate. In my 4\1/2\ years in the Senate, not once has
the leader brought that measure to the Senate for an up-or-down vote by
the Senate. Evidently it won't happen this week, either, because,
again, that does not rate as a top priority.
No, according to the Republican leadership, the most important issue
facing America and earning the most urgent attention of the Senate is
the supposed need to give special immunity from the standards for
negligence and product liability that apply to all other businesses and
all other products. When this legislation passes, and it will pass with
ease, because the NRA, National Rifle Association, has the money and
the political clout to get whatever it wants around here, no matter how
unnecessary, unfair, or ill advised it is, this bill will soon become
the law of the land.
One of its findings is:
(7) The liability actions commenced or contemplated by the
Federal Government, States, municipalities, and private
interest groups and others are based on theories without
foundation and hundreds of years of common law and
jurisprudence of the United States and do not represent a
bona fide expansion of the common law. The possible
sustaining of these actions by a maverick judicial officer or
petit jury would expand civil liability in a manner never
contemplated by the framers of the Constitution, by Congress,
or by the legislatures of the several States. Such an
expansion of liability would constitute a deprivation of
rights, privileges and immunities guaranteed to a citizen of
the United States under the Fourteenth Amendment to the
United States Constitution.
It goes on to say one of the purposes is to preserve a citizen's
access to a supply of firearms and ammunition for all lawful purposes,
something I certainly support.
It goes on to say the purpose is to protect the right under the first
amendment of the Constitution of manufacturers, distributors, dealers,
and importers of firearms or ammunition products, and trade
associations to speak freely, to assemble peacefully, and to petition
the Government for redress of their grievances.
This legislation is supposedly necessary to protect the first
amendment rights of people in the lawful business of manufacturing,
distributing, or selling firearm and buying the same.
In the manufactured hysteria of this fabricated crisis, the
Government or a maverick judicial officer or a petit jury evidently is
threatening to violate the first amendment, the second amendment, and
the 14th amendment rights of all gun manufacturers, distributors, and
dealers in the United States of America. What utter nonsense. But if
the National Rifle Association says the sky is green and the grass is
blue, the majority of Congress will run for the paint.
I strongly support the second amendment of the U.S. Constitution. I
am a gun owner myself and a hunter. This bill does not benefit gun
owners or hunters, who are most of the NRA members. They are being used
to give special favors and special treatment to someone's special
friends and someone's big contributors.
Last year, according to industry data, there were over 1.3 million
handguns sold in the United States. That is just handguns. Sales
totaled $605 million. The sales of rifles and shotguns last year
totaled $1 billion. The number of long guns sold was not available, but
simple math puts that number well over 2 million rifles and shotguns
sold in the United States last year.
Given that volume of sales and weapons available, can anyone believe
any law-abiding American's constitutional right to lawfully purchase
and own as many guns as he or she wants is being endangered? What
nonsense. Absolute nonsense.
Our major gun manufacturers are certainly not in danger. Smith and
Wesson's most recent annual report showed net product sales of $118
million last year, an increase of almost 20 percent over the previous
year.
Sturm, Ruger and Company on July 20 of this year reported net sales
for the 6 months ended June 30, 2005 as $78.7 million, an 8-percent
increase over 2004, and the chief executive stated firearm unit
shipments in the second quarter increased 11 percent from the prior
year due to strong demand.
This is not an industry being hounded out of business. Would the
industry like to rid itself of all lawsuits stemming from products and
sales? Of course, and so would every other industry and company in
America. I am not here to defend our Nation's litigation practices,
which are often excessive and sometimes even extreme, but whatever so-
called reforms are made should apply to everyone. Gun manufacturers and
dealers are not the only people who make and sell potentially dangerous
products or products that can be used illegally and misused. And
[[Page S9080]]
judges and juries are not indiscriminately finding against gun
manufacturers. Most are probably gun owners and hunters as well.
Despite what the NRA pedals to its members to justify its existence
and their dues, the second amendment is accepted and respected by the
overwhelming majority of Americans and there is no threat to
responsible manufacturers, dealers, lawful buyers, or owners of the
millions of guns in America. There is no justification for this special
legislation and the special treatment it gives to that industry.
Of course, the gun industry is accustomed to getting special
treatment from Congress. Firearms and tobacco are the only two consumer
products specifically exempt from regulation by the Consumer Products
Safety Commission. What an exemption. I have to hand it to the NRA,
whether I agree with them or not, they sure know how to operate around
here. Many industries and even individual corporations pour a lot more
money into lobbying and into political contributions than the NRA and
they do not get nearly the special treatment, special favors from
Congress the gun lobby does--a complete exemption from consumer product
safety laws and regulations, and now almost complete immunity for
lawsuits from negligence or product malfunctions. All other businesses
and industries in America are in discount coach while the gun lobby has
special privileges flying first class on Air America under this
Congress and preceding Congresses.
It is because there is that exemption from the consumer product
safety laws of this country that some of these lawsuits, not frivolous,
but determined by a judge or jury through the process to be legitimate
and bona fide, and the resulting civil damages are necessary to move
the industry to take some of the safety actions it can technologically
and financially certainly afford to make that it probably would not do
otherwise.
For example, take Bushmaster. Their dealer lost the sniper's assault
rifle along with 238 other guns that were then used by the snipers
against the innocent victims in Washington, DC. As a result of its
settlement with the victims of those families, they agreed also to
inform their dealers of safer sales practices that hopefully will
prevent other criminals from obtaining the guns, something that had
never been done before.
In June of 2004, two former New Jersey police officers were shot in
the line of duty with a trafficked gun negligently sold by a West
Virginia dealer. They won a $1 million settlement, and the dealer who
sold the gun, along with 11 other handguns in a cash sale to a straw
buyer for a gun trafficker--after that lawsuit that dealer, as well as
two other area pawnshops, agreed to implement safer practices to
prevent sales to traffickers, including a policy of ending large-volume
sales of handguns.
In 2004 also, Tennille Jefferson, whose 7-year-old son was
unintentionally killed by another child with a trafficked gun, won a
settlement from a gun dealer that amounted to $850,000. The handgun was
one of many the dealer sold to the trafficker despite clear signs the
guns were headed for the underground market. That, too, resulted in
changes in policies and sales practices that hopefully will prevent
other mothers from suffering that terrible fate of losing a child.
I am not saying every one of those cases filed against the
manufacturers or dealers is proper. Again, that is for the process to
determine. But there is no evidence, no evidence at all, that there is
anything about the nature of these suits, the outcomes of them, the
jury awards relative to the damages that have occurred, that indicates
this industry is being prejudiced or plagued by those who they contrive
to be doing so, to justify this legislation. If we are going to reform
the tort system in this country, let's do it openly and aboveboard with
all industries, all of American businesses affected equally by those
changes. To single out one industry, particularly one that
manufacturers products, potentially, as dangerous as guns, is just a
terrible day for the Senate.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, this is a sad day in the Senate. It is a
sad day in two respects. Yesterday, we were debating a bill, the
Department of Defense Authorization Act. It is an important bill. It is
a $440 billion bill for our American military: our soldiers, sailors,
marines, airmen, members of the Coast Guard, Guard and Reserve. We were
trying, in that bill, to help our fighting men and women and their
families.
We had a long list of amendments that we wanted to consider: extra
pay for totally disabled veterans, help for the widows and orphans of
combat soldiers who die in the line of duty, fair compensation for
Guard and Reserve when they are activated and they are Federal
employees, daycare for the families of soldiers who are activated,
quality-of-life issues for the men and women in uniform who are
fighting for America.
A decision was made by the Republican leadership to leave that bill,
leave that issue, to come to this one. What could be more important for
us to consider than the safety, the lives, and fortunes of the men and
women who serve our country and risk their lives, on military duty, and
their families?
Well, in the estimation of the Republican leader, Senator Frist,
there was one issue that was more important than talking about our men
and women in uniform. That issue was providing immunity from liability
for one industry in America, to say that of all the businesses in
America that provide us with goods and services, all of the businesses
that are currently held responsible for wrongdoing, we will create one
exception. We will say, if the gun industry is guilty of wrongdoing,
they cannot be sued. That is right. The firearms industry, which sells
millions of firearms each year in the United States, should not be held
responsible for their bad conduct and wrongdoing.
It is hard to say those words and not shake your head. If personal
responsibility is what it means to be an American and an American
business man or woman, why in the world would you exempt one industry
and say they are special, they are political royalty, they cannot be
held liable for their misconduct? And why did we move to this bill and
away from the Department of Defense authorization bill to help our
soldiers and their families? The answer is too obvious. It is because
of the political clout of the National Rifle Association and the gun
lobby. It is the only group I can think of which would just go
straightforward with the concept they are more important to the Senate
calendar than the fighting men and women who are now risking their
lives for our country. They have done it many times.
The NRA runs certain people in this Chamber and on the other side
when it comes to the agenda. They decide what will be taken up and what
amendments will pass--an extremely powerful group. The NRA succeeded in
having the Senate debate guns--and that is a rare debate--but only when
it comes to this question of gun immunity.
Isn't it interesting, we want to put an amendment on this bill that
says when you sell a firearm you have to check to see if the purchaser
is on a watch list of terrorists. Is that unreasonable? If you have
computer access through your store--and these stores do--shouldn't you
check to see if that person standing across the counter from you is on
the watch list for terrorism in America? That concept is rejected by
the National Rifle Association. Background checks: extremely limited.
Information gathered about criminal people is to be destroyed so
quickly that it is of little value to law enforcement.
A March 2005 report from the Government Accountability Office found
that between February and June of 2004, people on U.S. lists of
suspected terrorists applied 44 times to buy guns. It is not unheard
of. It happens in this country. In only nine instances were they turned
down. In the months since the study ended, 12 more suspected terrorists
had the green light to buy or carry guns.
FBI Director Bob Mueller--whom I respect very much--said he was
forming a group to study the problem. Why aren't we talking about this
instead of granting immunity for the gun dealer who sells a weapon to
someone he should have known could misuse it for a crime or for
terrorism? We are shielding them from civil liability for not
[[Page S9081]]
living up to their responsibility when it comes to the sale of lethal
firearms.
Or we could talk about ways to solve the problem in America of guns
being trafficked, many crossing State lines, and used in crimes. The
ATF says 90 percent of the guns recovered in crimes were used by
persons other than the original purchaser, other than ``straw men,''
people who bought them to sell them to criminals. One-third of all
crime guns cross State lines.
In my State of Illinois, 47 percent of guns traced to crimes
committed in Illinois originated in other States. One State,
Mississippi--the little State of Mississippi--is far and away the per
capita leader in selling guns exported from their State and used in
crime. Do you know why? Because firearms laws are not really strictly
enforced in Mississippi, and some other States.
From 2000 to 2002, Department of Justice prosecutors filed three
cases in Mississippi for violations of gun trafficking laws. In
contrast, 32 cases were filed in Kentucky, 28 in Tennessee. So we have
gun dealers in Mississippi selling trunkloads of guns to people who get
on the interstate and drive up to Illinois and, perhaps, your State,
too, selling them to gun gangs and drug gangs on the streets, and then
spreading out these guns to kill innocent people. And the people
pushing this bill are arguing that we should not hold those firearms
dealers responsible because they did not ``know'' that a crime was
going to be committed.
One hundred ``Saturday night specials'' to stick in the trunk of your
car, junk guns, that you would never use for sports or hunting, and
they didn't know? They should have known. That is a standard in law
almost everywhere: that you knew or should have known. They are
changing the law. They are saying, for firearms dealers, we are not
going to hold them to this same standard that we hold every other
business in America to when people buy products.
There are lots of other issues we could talk about, the gun show
loophole, and others. But I think one of the most important things we
could talk about is why this bill is on the floor today. It is not
because gun manufacturers and gun dealers are facing bankruptcy and a
lot of litigation. I read into the Record yesterday--and will not
repeat--the major gun manufacturers in this country have no problems in
terms of profitability. In fact, one of the leading companies, Smith &
Wesson, said:
In the nine months ended January 31, 2005, [Smith & Wesson]
incurred $4,535 in [legal] defense costs, net of amounts
received from insurance carriers, relative to product
liability and municipal litigation.
Mr. President, $4,500--does that sound like a business crisis that
would move a gun immunity bill to the front of the calendar in front of
the Department of Defense authorization bill? What it comes down to is
this gun lobby has a lot of clout, and they are pushing for this
sweeping immunity.
What kind of cases are we talking about? I said to my staff, you can
talk about the law. And I could stand here as a person trained in law
school and go through the obvious problems with this bill. But I think
it is more important to talk about real-life situations. It is more
important to give illustrations of why this is such a terrible bill.
Let me tell you about Anthony Oliver. Anthony Oliver was 14 years
old. He was shot and killed on July 23 of last year while he was
playing video games with his friend who was 13. Anthony's friend, his
13-year-old friend, had just bought a gun on the street for $50. He
told the police he bought the gun with his allowance near his home
because he was intimidated by a group of kids who jumped his friend and
threatened to beat him up. He said he thought the safety was on when he
accidentally killed Anthony with one shot to the stomach.
Federal investigators traced the gun. It was a ``Saturday night
special,'' one of those cheap guns just used for crime. They traced it
to Lou's Jewelry and Pawn store in Upper Darby, PA. From 1996 to the
year 2000, this pawnshop in Pennsylvania sold 441 guns traced to crime.
It ranks as the No. 1 dealer in Pennsylvania in selling guns to
criminals and 43rd in the Nation among all gun dealers.
In 2003, the last year for which we have statistics, Lou's sold 178
guns traced to crime. That year, less than 1 percent of the more than
3,000 dealers in Pennsylvania sold even one gun traced to crime. So you
have a handful of dealers, just a small percentage, who are not paying
attention or ignoring openly the fact that they are selling guns over
and over and over again to gun traffickers and to straw purchasers.
How is that done? Well, the person who has a criminal record and
cannot buy a gun brings his girlfriend in, and while he is standing
there picking out the guns, the girlfriend is handing over the credit
card or the cash to pay for them. They cannot sell to him. He is a
criminal. He has a record of felonies, so the girlfriend buys it. So
should the gun dealer be aware of that? Why, of course. It is obvious.
Should they be held accountable if they should have known that gun,
through that girlfriend, is going straight into the hands of a felon,
straight on to the street, killing innocent people? In America, a jury
decides that. They will not be able to when this bill is passed. When
this bill is passed, those who vote for it have decided they will be
the jury forever when it comes to those questions of liability. We are
taking that matter out of the hands of American citizens. We are
putting it in the hands of a handful of Senators.
The gun that killed Anthony was sold in 2003 by Lou's to a trafficker
who had purchased six guns in a very short period. They bought multiple
guns, including many ``Saturday night specials,'' which are small,
easily concealed, low-quality handguns sought basically by kids, drug
gangs, and those who are going to have a fast crime experience on a
Saturday night.
The purchase of multiple firearms at once should have been a red flag
to Lou, but Lou doesn't pay any attention to that: Give me some cash--
I'll give you a gun; no questions asked.
When this bill passes, the family of Anthony Oliver will lose their
lawsuit, the lawsuit they brought against Lou's pawnshop that continues
to sell these guns used in crime. So what a great piece of news for
that family: the tragedy of losing your 14-year-old son to a ``Saturday
night special'' from a pawnshop which specializes in selling guns to
gun traffickers and criminals. This is a great bill, isn't it?
Let me tell you about another case. Danny Guzman was a 26-year-old
father of two from Worcester, MA, killed by a stray bullet fired
outside of a nightclub on Christmas Eve in 1999.
After the shooting, the loaded gun used in the shooting was found
behind an apartment building by a 4-year-old child. The gun had no
serial number. They determined the gun was one of several stolen from
Kahr Arms, a Worcester gun manufacturer, by their own employees, who
hired many of these employees and, it turns out, never checked whether
they had criminal records.
One of the thieves, Mark Cronin, who worked for this gun
manufacturer, had been hired despite his history of crack addiction,
theft, alcohol abuse, violence, and assault and battery. They did not
check it. The gun manufacturer hired people to make guns and did not do
a criminal background check on their employees.
Cronin told an associate that he took guns out of the Kahr company
``all the time'' and that he could just walk out the door with them. He
took the gun that was used to kill Danny right off the assembly line.
And he was pretty smart about it. He took it off the assembly line
before it was stamped with a serial number. Smart guy. Can't be traced.
The investigation also led to the arrest of another employee, Scott
Anderson, who had a criminal history, who pled guilty to stealing guns
from the company.
Fifty Kahr firearms disappeared in a 5-year period. The local police
captain classified the recordkeeping at that facility as ``shoddy,''
that it was possible to remove weapons without detection because they
did not keep their records well.
Danny Guzman's family brought a wrongful death suit in Massachusetts
State court against the owner of the gun manufacturing company, saying:
You should have kept your records so you could see that guns were being
stolen. And you certainly should have done a background check on your
employees. Hiring somebody who has such a criminal record to work in a
plant
[[Page S9082]]
that makes guns is clearly a question of negligence.
The trial judge denied the efforts of the company to dismiss the
lawsuit, and it is still pending. Do you know what happens to that
lawsuit by the family of Danny Guzman against that arms manufacturer if
we pass this bill? It is immediately removed. They have no rights in
court to pursue that. Why? Why would we say to a person who owns a
company that makes guns that you are held to a lesser standard than a
person who owns a company that makes toys? That is what it boils down
to. You are doing it because the gun lobby insists on it. They want
this immunity.
The case that has brought many policemen forward--and I will close
with this--involves police officers. The last time we debated this
bill, we said: Shouldn't we at least create an exception that if the
gun is used to kill a police officer in the line of duty, that we are
going to hold a gun dealer responsible if they should have known that?
Wouldn't we hold a gun manufacturer responsible if they were involved
in supplying guns to Lou's Pawnshop, which ranks one of the highest in
the Nation of turning guns over to criminals? So we asked for an
exception for law enforcement. It was defeated. All the people here who
talk about law and order and how much they love policemen in uniform
defending our communities and neighborhoods with their lives voted
against them when they had a chance to put that exception in the law.
Let me give you a specific example. On January 12, 2001, police
officers in Orange, NJ, were performing undercover surveillance at a
gas station that had been robbed repeatedly. Someone acting
suspiciously walked up to the gas station and then turned away. When
Detective David Lemongello approached the man a few blocks away to
question him, he responded by turning and opening fire. Detective
Lemongello was hit in the chest and left arm, and the suspect fled.
When additional officers, including Kenneth McGuire, found the man
hiding beneath some bushes, the man started shooting again. Officer
McGuire was hit in the abdomen and right leg. McGuire and two other
officers returned fire and killed the man, even though they had been
shot. Although Detective Lemongello and Officer McGuire survived, they
have suffered serious, debilitating injuries.
The man who shot them was wanted for attempted murder and had been
arrested several times. So how did he get a gun? How did this man come
into possession of a gun? Gun trafficker James Gray traveled from New
Jersey to West Virginia to buy his guns. He and his companion, Tammi
Lea Songer, visited Will's Jewelry and Loan, a pawnshop in South
Charleston, WV, and Songer acted as a ``straw purchaser'' by buying the
gun for Gray who couldn't purchase it himself because he was a three-
time convicted felon and out-of-State resident. The girlfriend bought
the gun while he was standing there. Good old Will's Jewelry and Loan
took the cash and handed the gun over.
They returned to Will's 17 days later, purchased 12 more guns--see
the pattern--which the girlfriend bought and paid for with thousands of
dollars in cash. Should the gun dealer have been saying at this point,
This looks a little fishy? I think so. Reasonable people would. Gray
picked out the guns for the girlfriend to purchase in full view of
Will's Jewelry and Loan pawnshop personnel, a clear signal this was a
``straw purchase.'' One of those guns was the gun used to shoot these
police officers, McGuire and Lemongello.
Will's personnel had reservations regarding the nature of the
transaction but went through with it anyway before contacting the ATF
to report their suspicions. The ATF then contacted the girlfriend,
Tammi Lea Songer, who agreed to assist them in a sting operation that
resulted in the capture of Gray. However, in the time it took the ATF
to set up its sting, Gray had already trafficked the gun--sold it on
the street--which was used to shoot these police officers.
The police officers and their families are suing the gun dealer,
saying: You didn't use good sense and any reasonable standard of
conduct in selling to this guy's girlfriend when you should have known
something fishy was up. So they have a lawsuit against them and the
manufacturer. Do you know what happens to this lawsuit from these
policemen if this bill passes? It is over. Not another day in court. No
chance for these wounded policemen or their families to recover.
Will's settled, incidentally, with Officers McGuire and Lemongello
for a million and agreed to change its practices in terms of
underground traffickers. If the current bill passes before this
settlement is reached and final, justice will not have been done. The
shop would not have agreed to take the steps to make the streets safer.
That is what we are up against--people who want to stand behind and
protect gun dealers who are selling guns that they should know are
going out on the street to menace and threaten innocent people.
How in the world have we reached this point that we leave the
Department of Defense bill to come to this? It is a sad day for the
Senate. It is sad to think that one lobby has so much power over the
Senate that they can move us away from the men and women in uniform, to
whom we have a first responsibility, to protecting gun dealers like
Will's pawnshop in Virginia or Lou's in Pennsylvania. What in the world
are we doing here? We owe it to the men and women in uniform and the
policemen who risk their lives for us to defeat this bill. We owe it to
the mothers and fathers who want their kids to come home safe every
night and not be menaced by driveby shootings and ``Saturday night
specials'' to defeat this bill. It is time to decide who you are
working for in the Senate. Is it the gun lobby or the policemen and
families of America?
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I realize we are up against a time limit. I
ask unanimous consent that my comments appear as though in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
Nomination of John Roberts
Mr. LEAHY. Mr. President, I wish to take a few moments to bring
people up to date on where we are on the John Roberts nomination to the
Supreme Court.
It is now a little over a week since President Bush made a dramatic
evening announcement of his intention to nominate John Roberts to
succeed Justice Sandra Day O'Connor on the U.S. Supreme Court. In the
Senate, we haven't received this nomination. It has not come up yet.
Nonetheless, we are well on the way to preparation for the Senate's
process in considering the nomination.
During the past weeks, some of us have met with Judge Roberts. We
have urged him to be forthcoming at his upcoming hearing. The Judiciary
Committee has already sent him a questionnaire seeking background
information. Most importantly, Chairman Specter and I have already
begun laying the groundwork for full and fair hearings which we are
both committed to holding. I expect that we will soon be able to
announce the Judiciary Committee's schedule for those hearings.
Late yesterday, the White House provided some documents from Mr.
Roberts' time when he served as special counsel to Attorney General
William French Smith during the Reagan administration. None of us had
requested these particular documents but, of course, we are always
happy to receive anything they want to send. There are at least three
categories of documents from Mr. Roberts' years in the executive branch
that are relevant to this nomination.
The second group relates to Mr. Roberts' work from 1982 to 1986 as an
associate White House counsel under the supervision of White House
Counsel Fred Fielding. These are apparently kept in the Reagan Library
in California.
Yesterday, in our continuing effort to expedite the process, we sent
a letter to the White House asking that the files from those years be
made available as quickly as possible, and to help speed it up, we
identified by name the files we wished to be priorities. I hope the
reported statements by White House officials over the last couple of
days indicating they expect it will take 3 or 4 weeks to make these
materials available are in error and, instead,
[[Page S9083]]
they can be made available on a prompt basis, not a delayed basis.
Otherwise, it would almost appear--I certainly wouldn't want to suggest
the White House would do this--that they are trying to make sure the
documents arrive after the hearings and not before them or arrive so
close to the time of the hearings, there would be no time to review
them. I trust there will be those at the White House who would
understand this would be the wrong way to proceed and would actually in
the long run end up adding more time to the process.
The third category of files is from Mr. Roberts' work when he was a
political appointee in the Justice Department's Office of the Solicitor
General. He served as Kenneth Starr's principal deputy during the prior
Bush administration. The reason I say these are important, the
President said that his work at this time was one of the reasons he
selected Judge Roberts as his nominee. Of course, the President has
every right to consider whatever reasons for a Supreme Court nominee.
Having said that, however, in carrying out our responsibilities, it is
appropriate that the Senate also be entitled to the same kind of
information that the White House weighed in making its decision about
this nomination. In other words, if this work is one of the reasons
they say he is qualified to be on the Supreme Court, all the more
reason the 100 Members of the Senate should be able to see it and make
up our own minds.
Actually, it might be the most informative of the documents we are
going to seek. We could get a practical sense of how, when, and why
politics and the law intersect for him. I am not expecting to seek
production of all the files and the hundreds of matters on which Mr.
Roberts worked in those critical years. Nobody is asking for that.
Rather, in our effort to cooperate and expedite the process, we are
putting together a targeted catalog of documents. I hope we can work
with Chairman Specter to send a reasonable bipartisan request for a
selected group of those files.
In that regard, I ask unanimous consent that a copy of the letter we
sent to the White House yesterday be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on the Judiciary,
Washington, DC, July 26, 2005.
Hon. George W. Bush,
The White House,
Washington, DC.
Dear Mr. President: We are disappointed that the White
House appears to have so quickly moved to close off access by
the Senate to important and informative documents written by
Supreme Court nominee John Roberts while he was at the
Department of Justice. According to news reports today, your
Administration may be preemptively protecting thousands of
documents not even requested yet by the Committee--documents
that could very well hold important information necessary to
evaluate Judge Roberts' judicial philosophy and legal
reasoning.
While many documents are being delivered today from Judge
Roberts' work for Attorney General William French Smith at
the Reagan Justice Department, it is far too early to
determine whether these documents are relevant, adequate, or
even helpful. It may be that this group of documents, along
with the upcoming hearings, will give us enough information
to fulfill our constitutional duty to advise and consent on
this nomination. But it would be premature for either the
Senate or the White House to make that determination now.
Judge Roberts spent some four years working for President
George H.W. Bush, and it may very well be that documents from
that time will be helpful to the Committee as well.
It is our hope that the confirmation process moves swiftly
and smoothly over the coming weeks. We can assure you that no
Senator is attempting to unduly delay the proceedings. We
intend to work with Chairman Specter if and when further
requests for documents or information appear appropriate. But
in the meantime, we believe that judgment should be withheld
on which and how many documents regarding this nominee might
be released to the Senate. The history of past nominations is
varied but clear--each confirmation process is different, and
the type and number of documents shared between the White
House and the Senate has depended on the nature of the
debate, the needs of the Committee, and a cooperative
negotiation between the Senate and the White House. A blanket
statement that entire groups of documents are off limits is
both premature and ill advised.
Finally, it is our understanding that many more publicly
available documents will soon be sorted and delivered to the
Committee. In the interests of speeding up the process, we
have attached a list of the document areas within that group
we feel would be most helpful to the Committee. To the extent
your staff can assist in expediting the delivery of those
documents, we would be grateful.
Sincerely,
Patrick Leahy.
Dick Durbin.
Joe Biden.
Edward M. Kennedy.
Charles Schumer.
Dianne Feinstein.
Russell D. Feingold.
Herb Kohl.
particular matters of interest
JGR/Law of War; JGR/Texas Redistricting; JGR/Abortion; JGR/
Acid Rain; JGR/Affirmative Action Correspondence; JGR/
Appointment Correspondence 1985; JGR/Appointee Memos,
Clearance, Announcements, etc.; JGR/Appointments Clause; JGR/
Asbestos Legislation; JGR/DC Chadha; JGR/Change in
Presidential Term; JGR/Civil Rights Commission; JGR/
Comparable Worth; JGR/Conflicts of Interest; JGR/Death Squads
Investigation--SSCI; JGR/DOJ Daily Reports; JGR/EECO; and
JGR/Equal Opportunity in Education; JGR/Ethics; JGR/
Exclusionary Rule; JGR/First Amendment; JGR/Flag, American;
JGR/Independent Counsel; JGR/Iran Emergency; JGR/Jones, Bob--
Univ. Decision; JGR/Judges; JGR/Legal Services Corporation;
JGR/Pardons; JGR/Political Activity; JGR/Pro Bono; JGR/
Reagan--Bush Rallies Guidance; JGR/Recess Appointments; JGR/
School Prayer; JGR/Supreme Court; and JGR/War Powers.
Mr. LEAHY. When we review the documents volunteered by the White
House, obviously, we are going to be asking, Is this more of the old
trick of flooding us with stacks of really unimportant materials in
order to divert attention from those that matter the most? I hope the
White House will begin to work with us instead of acting unilaterally.
There is one very easy way. They could send up documents that make no
sense. They could say, Here is 400 pages of something he had on his
desk every day when he was working as a political appointee of the
Justice Department, and send us the telephone book. That is 400 pages.
It was on his desk. It is not very helpful.
So the bottom line is this: The White House is eager to supply
documents it selected and certainly provided with great fanfare, but we
have yet to receive the documents we have, in fact, requested. It is an
unfortunate pattern we have seen too often. Of course, the White House
has available to it all the documents. The President has spoken about
the designee's work in the Reagan White House and at the Bush Justice
Department. But they have yet to share those materials with the Senate.
Other nominations have run into trouble when this White House has
decided to let the Senate see only what the White House wants the
Senate to see. If the White House's midnight announcement on Monday
that was reportedly embargoed to deny Democratic Senators an
opportunity to comment is, contrary to appearances, actually intended
to begin a dialog about documents, then I welcome it. Of course, if it
is intended to unilaterally preempt a discussion about documents the
Senate may need and is entitled to, then this is regrettable.
Past administrations, Republican and Democratic, have been willing
cooperatively to work with the Senate to accommodate its requests for
documents. There are ample precedents in both parties documenting such
cooperation. I believe the Senate is going to need the White House's
full cooperation to expedite the scheduling of this process as the
President has requested.
Let us be serious. Now that the White House has gotten the stagecraft
out of the way, let's go back to working on the substance of the
Senate's work on this very important nomination. The President has,
rightfully so, announced his choice. Now the Senate must rise to the
challenge and do its work. To fulfill our constitutional duties, we
need to consider this nomination as thoroughly and carefully as the
American people deserve. A Supreme Court Justice is not there to
represent either the Republican or Democratic Party; they are there to
represent all 280 million Americans. The Senate is supposed to find, Is
this the person the American people deserve, all 280 million of them?
That takes time, it takes the cooperation of the nominee, and it
takes the cooperation of the administration. It means that Republicans,
as well as Democrats, have to take our constitutional obligations on
behalf of the American people seriously.
[[Page S9084]]
Let us remember this is not to see who scores political points. This
is to determine how we protect the rights of all Americans--the
ultimate check and balance for all Americans. This is somebody who
could well serve until the year 2030 or beyond.
Mr. President, I see the distinguished senior Senator from Rhode
Island.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. REED. Mr. President, I commend the Senator from Vermont for his
eloquent remarks. I will talk about the legislation before us, the gun
liability legislation.
The legislation before us cannot be all things. It cannot be an
effective barrier against litigation to protect the gun industry and,
at the same time, be a way to protect legitimate rights of citizens who
have been injured or killed by guns. It is not both; it is one of them.
It is carefully, cleverly worded legislation to immunize the entire gun
industry from virtually any type of liability.
There are, perhaps, minor exceptions, but the most important,
compelling cases we have seen in recent years--the case of the DC
snipers, the case of Police Officers Lamongello and McGuire in New
Jersey, and the pending case of Kahr Arms in Worcester, MA--would be
barred. I don't think that is a mere incidental coincidence. They will
be deliberately barred.
Thankfully, the first two cases were settled after the Senate
rejected this legislation last year. The families of the victims of the
Washington area snipers had their day in court and were able to go
forward, and a settlement was reached. Officers Lamongello and McGuire
similarly had the opportunity to press their cases, and a settlement
was reached, but the Kahr Arms case is still pending in court.
One of the sweeping aspects of this legislation is that it does not
merely attempt to set the rules prospectively, as we go forward, to say
these cases would not be heard by a court in the U.S.; it literally
walks in and tells people who have filed cases--cases that have
survived motions for summary judgment, cases which judges, looking at
the facts and circumstances and the law, have said at least can go
forward to trial and jury--it would take those cases and throw them out
of State courts and out of Federal courts if they have been filed.
Let's take a look at the Kahr Arms case. It is the case of Guzman v.
Kahr Arms. It was filed under the wife's name--Hernandez, I believe. It
involves Danny Guzman and Kahr Arms. A lawsuit was filed by the family
of 26-year-old Danny Guzman of Worcester, MA, who was fatally wounded
with a 9 mm handgun that was stolen from the Kahr plant by a drug-
addicted employee who had a criminal record. The manufacturer, Kahr
Arms, operated the factory without basic security measures to protect
against theft, such as metal detectors, security mirrors, or security
guards. Guns were routinely taken from the factory by felons the
company had hired without conducting background checks.
The gun used to kill Danny Guzman was one of several removed by Kahr
Arms employees before serial numbers had even been stamped on them,
rendering them virtually untraceable. Some point has been made about
the fact that it is illegal to erase serial numbers. These people were
able to get the weapons before serial numbers were imprinted upon the
weapons, so that law would not apply at all. The guns were then resold
to criminals in exchange for money and drugs. The loaded gun that
killed Mr. Guzman was found by a 4-year-old behind an apartment
building near the scene of the shooting. Thank goodness that 4-year-old
didn't decide to test the weapon himself or herself.
Had Kahr Arms performed background tests or drug tests on prospective
employees, or secured its facility to prevent theft, Danny Guzman might
be alive today. A Massachusetts court held that the suit states a valid
legal claim for negligence, but this bill would throw the case out of
court, denying Danny's family their day in court.
Again, this is the Congress reaching into a State court and telling
that judge, we don't care what your law says, we don't care what 200
years of legal precedent in Massachusetts or any other State in the
country amounts to. This suit should be stricken, taken out, thrown
out.
This legislation is sweeping and it is unprecedented. It deals a
serious blow to citizens throughout this country, while enhancing
dramatically the legal protections for the gun industry. Now, the
bill's proponents repeatedly say you cannot hold someone responsible
for the criminal actions of another--as my colleagues have said, the
intervening criminal actions of another.
First of all, that is not what this case is about. And, frankly, that
is not the law. I am surprised that my colleagues who are attorneys
would come down and make such an erroneous statement about the law. A
memorandum by a professor at the University of Michigan Law School
points out that in the restatement of torts--this is as in all law--
this is the basic summary of the status of the law in the U.S. with
respect to torts. Section 449:
If the likelihood that a third person may act in a
particular manner is a hazard or one of the hazards which
makes the actor negligent, such an act, whether innocent,
negligent, intentionally tortious, or criminal, does not
prevent the actor from being liable from harm caused thereby.
This is black letter law. There is no special exemption for the
criminal act of another if you fail in your duty to the public. And the
duty here with respect to Kahr Arms is to secure dangerous weapons and
to have employees who are responsible. That is what they are being sued
about. They have a duty under the law for the whole community to act in
a way that will not unnecessarily cause harm to others. What should be
decided in a court is whether they lived up to that duty. If this
legislation passes, they will be denied the opportunity to determine
whether their duty to the community was upheld.
This is about responsibility for their actions--in this case, the
actions of Kahr Arms Company. In the case of gun dealers, it is the
requirement and the obligation to take precautions, to use the standard
of care a businessperson would use in the conduct of that business--the
standard of care any businessperson would use. Certainly, this standard
of care should apply to those who manufacture weapons, who sell
weapons, and the trade associations associated with them.
The allegation in all these cases is that they failed to do that--not
that they were unwitting, incidental victims of a criminal mind, but
that they failed in their duty. Bull's Eye Shooter Supply in Washington
State, for example, who supplied the Washington snipers with their
sniper weapon, could not account for 238 weapons. They had no idea
where they were. The evidence was overwhelming that there was no
standard of adequate care, no effective controls on inventory. The
owner of that gun store claimed a teenager--he didn't realize it at the
time--must have walked in and shoplifted an automatic weapon, a 3-foot-
long sniper weapon, and carried it away, undetected, during business
hours. In fact, this was missing without his knowledge for weeks and
months. That is not the standard of care the community should expect
from anyone engaged in this type of business. Is that the standard of
care? No, it is not the standard we expect. It is particularly not the
standard when you are dealing with weapons that can kill people. I
would think most Americans on the streets, if you asked them, Would you
say gun dealers and manufacturers should be a little more cautious than
people who make other items, I think the answer would be, invariably:
Yes, of course. These are inherently dangerous products.
So this is not about punishing people for the criminal activities of
others. It is about holding individuals and corporations up to the
standard of conduct we expect from everybody. There are various
examples. Some say, my goodness, if a store sells someone a knife that
is then used in a crime, they should not be responsible. Others have
talked about car dealers. But if you have the car dealer who leaves the
keys in a car, and they have no security, and a teenager gets into that
car and harms someone, certainly I think the parents of that individual
harmed or that individual themselves could go to court and say this
dealer didn't meet the rational standard of care of those in the
automobile industry. They have to secure the car and provide security.
[[Page S9085]]
They cannot make them so easily available that a young person would
take the car and get into an accident. That applies to automobile
dealers.
But if this legislation passes, common sense doesn't apply to the gun
industry in this country. In fact, this is a license for
irresponsibility we are considering today. Whatever precautions they
are taking today, because they might anticipate this type of danger and
anticipate, perhaps, litigation, there is no incentive after today to
take those rudimentary precautions. There will be a race to the bottom,
to the worst standards of the industry, to the worst operations of the
worst operators.
With this bill, we are saying, in addition to your Federal firearms
license, you get another license; you can be irresponsible. That is not
to suggest all dealers and manufacturers are irresponsible. But some
are. Those very few have landed in court--very few.
We talk about junk lawsuits. It is not a junk lawsuit when your
husband has been shot by a sniper while sitting in a bus waiting to go
to work, to drive his bus, to service this community, to pick people up
and get them to work. I don't think the family of Conrad Johnson
volunteered to be part of a social experiment. I think any suggestion
to that effect is offensive. They have been harmed grievously. A wife
lost her husband. Children have lost their father. The livelihood of
this family is in question. They seek redress, as anybody would. That
is not a junk lawsuit.
On the contrary, these families have been harmed, in part, because of
the negligence of someone, and that someone should pay. The suggestion
that this legislation is in response to some avalanche of lawsuits that
is devastating the firearms industry is without foundation. The
industry is so stressed that they have managed to raise, preemptively,
$100 million to protect themselves--not just in terms of going to court
and paying claims, but also in terms of controlling documents and
communications between themselves and their attorneys, so they can
claim the benefits of the law, attorney-client privilege, at the same
time they are trying to take away the benefits of the law from average
citizens who have been harmed by guns. That is a stunning hypocrisy.
This is not an industry that seems to be without resources. As my
colleagues have said, and as I have said, in some of these annual
reports to the SEC, companies have said there were adverse effects
because of these suits, but ``don't worry, stockholders, we are not
losing any money.'' One company reported out-of-pocket costs of $4,500
in a period of less than a year for this type of litigation--$4,500.
For that, we are here on this floor to take away rights of Americans
they have enjoyed for over 200 years to go to court, to allege they
have been harmed by a negligent industry, and let a jury of their peers
decide it.
We are not facing a situation where we would be without gun
manufacturers because of these lawsuits. It is outlandish to suggest
our national security is being jeopardized because we cannot find
people in the United States who produce firearms, and that American
companies cannot stand up to this torrent of lawsuits. And the
suggestion that we have to turn to firearms suppliers for our military
is rather odd. Indeed, today, many, if not most, of the suppliers for
national defense are the subsidiaries of foreign companies. Browning,
Winchester, and Fabrique Nationale, which supplies M-16 A-4 assault
rifles and the M-2 49G squad automatic weapons are subsidiaries of
Herstal, a Belgian firm. The Pentagon contracted with H&K, a German
firm, to help develop the next generation of weapons.
Clearly, the Pentagon doesn't believe American manufacturers are so
distressed that they have to go overseas. They are going overseas
because they are looking for what they consider to be the best product
and best design. They are dealing with subsidiaries of foreign
companies. The suggestion, of course, that these suits are driving
America and the Pentagon away from acquiring American-made weapons is
ludicrous.
It is not about preserving our defense. It has nothing to do with our
defense. The Pentagon is making decisions to buy foreign weapons
because they believe they are better weapons. This is about protecting
one industry from the legal responsibility to exercise caution, a
responsibility every individual must exercise. All industries must do
that or, indeed, the vast majority.
This is not about protecting the integrity of the courts. What does
it say to the integrity of the courts of West Virginia when a judge
found that a suit brought by two brave New Jersey police officers
should proceed, when we say: No, you are wrong, throw that case out.
What will it say to Massachusetts courts if we pass this legislation
when that case against Kahr Arms is thrown out the door? It will say we
are meddling in the affairs of the courts in an unprecedented fashion.
Thankfully, Officers Lemongello and McGuire were able to settle their
legitimate case, but there are cases pending, and those cases have to
be dealt with.
I urge my colleagues to reject this gun industry immunity bill.
I want to make one other point before I yield the floor. Much has
been made of a letter from the Beretta Company about the danger of an
avalanche of lawsuits. If you look closely, what has happened is the
District of Columbia, their duly constituted legislative body, passed a
strict liability bill. The courts have upheld that. They say it is
appropriate. That is the American system, legislators pass bills. That
is what we are trying to do today. That is a strict liability bill, and
that may raise concerns with the gun industry. This bill goes way
beyond strict liability. It says simple negligence is out the door, and
to conflate those two arguments does a great disservice to the accuracy
of the truth of this debate.
Mr. President, I believe my time has expired. I yield the floor.
Mr. CRAIG. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. 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, I ask unanimous consent that we stay on the
Defense bill and that upon completion of that bill, we go to the gun
liability legislation.
Mr. FRIST. Reserving the right to object, Mr. President, reflecting
on yesterday, if we had invoked cloture yesterday, we would have been
able to complete the Department of Defense authorization bill. We were
unable to invoke cloture. I made it clear at that time at some point we
would return to the Department of Defense authorization bill, a very
important bill.
At the same time, we have about five pieces of legislation we have to
address over the next 72 hours. We need to move on, as we will shortly
do.
Also, the chairman and ranking member will have the opportunity over
the next few days and weeks to take these more than 200 amendments,
look at those amendments and see how many are absolutely necessary,
based on their judgment, and then we can come back and address the
issue of defense.
Finally, I ask that the Democratic leader consider my request from
yesterday so that at any time determined by the majority leader, in
consultation with the Democratic leader, then the Senate resume
consideration of the Defense authorization bill.
Mr. REID. Mr. President, if the Senator will withhold for one second.
There is now before the Senate a request to stay on the Defense bill
and finish the gun bill when the Defense bill is finished. It is my
understanding the distinguished majority leader has asked to modify
that request so that he would be able to call up the Defense bill at
any time he wishes; is that the way I understand the request as
modified?
Mr. FRIST. Mr. President, I will phrase it that at any time
determined by the majority leader, after consultation with the
Democratic leader, the Senate will resume consideration of the Defense
authorization bill.
Mr. REID. Mr. President, I understand that. I am disappointed we are
not going to the Defense bill. My statement has been spread on the
Record consistently and repeatedly, so there is no need for me to give
that speech again.
[[Page S9086]]
Mr. KENNEDY. Reserving the right to object, can the leader give us
some indication as to when we will go on the Defense authorization
bill, as one who has an amendment and is glad to participate?
Mr. FRIST. Mr. President, I am happy to say, that is why I
specifically stated in my unanimous consent request ``in consultation
with the Democratic leader.'' Until we get through the highway bill,
the Energy bill, Interior appropriations, Legislative Branch
appropriations, and gun liability, it is going to be hard for me to
predict exactly when--plus we have a 5-week recess between now and
then.
The whole purpose of my unanimous consent request is I stay in touch
through consultation with the Democratic leader to find the appropriate
time.
Mr. KENNEDY. Mr. President, I will not object. My feeling is, I
regretted the fact we got off the Defense bill--particularly because of
its importance to our national security--to go on to this gun liability
bill. I am not going to object to the leader coming back. As one who
has an amendment--I know many of our colleagues were eager to focus on
those amendments. We will expect to hear from our leader as to when the
leader will do that.
Further reserving the right to object, is it the intention of the
leader to permit amendments to the gun liability bill so we will, now
that we are on that legislation, at least be able to talk about and
offer amendments on the gun liability legislation?
Mr. FRIST. Mr. President, it is our intention--and I will be offering
an amendment shortly--but we will be in discussions with the leadership
and the ranking member and chairman discussing amendments and allowing
them to be offered accordingly in the judgment of the chairman and
ranking member and the leadership.
Mr. KENNEDY. Mr. President, I am not going to object to the other,
but that sounds to me as if--having been around and familiar with the
rules of the Senate--they can effectively let what amendments come up
that are agreeable to the floor managers and deny other Members the
opportunity to offer amendments. I think the Senate rules provide, when
we are dealing with cloture, to be able to offer amendments that are
relevant to the underlying bill. I don't understand why we are not
going to be permitted the different options. I am not going to object
to the leader being able to go to Defense authorization when he wants
to, but it does seem to me we are facing a stacked deck here and
denying Members under the Senate rules the opportunity which the rules
provide for. It would be simple to say we are going to run
consideration of the gun liability according to the Senate rules. That
would be the answer most of us would have hoped. I guess there is a
different plan ahead for the Senate, but we all want to be fully aware
of what that means. That means some Members will be able to get their
amendments in and others will not.
Mr. REID. If I can say one thing, I think it was an oversight on the
part of the majority leader, but one of the issues we have to deal with
before we leave is Native Hawaiians also.
Mr. FRIST. Mr. President, that is correct, and I was thinking the
exact same thing when I was talking, and Department of Defense as well.
We have a whole range of issues. The Democratic leader knows I am in
constant discussion with him as to how we are going to get the business
done, and the fact we did not get cloture yesterday on the Department
of Defense bill, we are moving ahead in an orderly fashion, hopefully
in a civil way, working with the other side, through the managers on
the Democratic side and Republican side, with the leadership in order
to complete the business this week.
Mr. President, I guess we have a modified unanimous consent request
that at any time determined by the majority leader, after consultation
with the Democratic leader, the Senate resume consideration of the
Defense authorization bill; is that correct?
The PRESIDING OFFICER. That is correct. Is there objection to the
request as modified? Without objection, it is so ordered.
The PRESIDING OFFICER. Under the previous order, the hour of 2 p.m.
having arrived, the Senate will proceed to a vote on the motion to
proceed to the consideration of S. 397.
The question is on agreeing to the motion.
The motion was agreed to.
____________________