[Congressional Record Volume 153, Number 107 (Friday, June 29, 2007)]
[Senate]
[Pages S8742-S8748]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Ms. MURKOWSKI (for herself and Mr. Stevens):
S. 1746. A bill to provide for the recognition of certain Native
communities and the settlement of certain claims under the Alaska
Native Claims Settlement Act, and for other purposes; to the Committee
on Energy and Natural Resources.
Ms. MURKOWSKI. Mr. President, at the very beginning of the Alaska
Native Claims Settlement Act of 1971 there are a series of findings and
declarations of congressional policy which explain the underpinnings of
this landmark legislation.
The first clause reads, ``There is an immediate need for a fair and
just settlement of all claims by Natives and Native groups of Alaska,
based on aboriginal land claims.'' The second clause states, ``The
settlement should be accomplished rapidly, with certainty, in
conformity with the real economic and social needs of Natives.''
Mr. President, 34, going on 35, years have passed since the Alaska
Native Claims Settlement Act became law and still the Native peoples of
five communities in Southeast Alaska--Haines, Ketchikan, Petersburg,
Tenakee and Wrangell--the five ``landless communities'' are still
waiting for their fair and just settlement.
The Alaska Native Claims Settlement Act awarded approximately $1
billion and 44 million acres of land to Alaska Natives and provided for
the establishment of Native Corporations to receive and manage such
funds and lands. The beneficiaries of the settlement were issued stock
in one of 13 regional Alaska Native corporations. Most beneficiaries
also had the option to enroll and receive stock in a village, group or
urban corporation.
For reasons that still defy explanation the Native peoples of the
``landless communities,'' were not permitted by the Alaska Native
Claims Settlement Act to form village or urban corporations. These
communities were excluded from this benefit even though they did not
differ significantly from other communities in Southeast Alaska that
were permitted to form village or urban corporations under the Alaska
Native Claims Settlement Act. This finding was confirmed in a February
1994 report submitted by the Secretary of the Interior at the direction
of the Congress. That study was conducted by the Institute of Social
and Economic Research at the University of Alaska.
The Native people of Southeast Alaska have recognized the injustice
of this oversight for more than 34 years. An independent study issued
more than 12 years ago confirms that the grievance of the landless
communities is legitimate. Legislation has been introduced in the past
sessions of Congress to remedy this injustice. Hearings have been held
and reports written. Yet legislation to right the wrong has inevitably
stalled out. This December marks the 35th anniversary of Congress'
promise to the Native peoples of Alaska, the promise of a rapid and
certain settlement. And still the landless communities of southeast
Alaska are landless.
I am convinced that this cause is just, it is right, and it is about
time that the Native peoples of the five landless communities receive
what has been denied them for going on 35 years.
The legislation that I am introducing today would enable the Native
peoples of the five ``landless communities'' to organize five ``urban
corporations,'' one for each unrecognized community. These newly formed
corporations would be offered and could accept the surface estate to
approximately 23,000 acres of land. Sealaska Corporation, the regional
Alaska Native Corporation for southeast Alaska would receive title to
the subsurface estate to the designated lands. The urban corporations
would each receive a lump sum payment to be used as start-up funds for
the newly established corporation. The Secretary of the Interior would
determine other appropriate compensation to redress the inequities
faced by the unrecognized communities.
It is long past time that we return to the Native peoples of
southeast Alaska a small slice of the aboriginal lands that were once
theirs alone. It is time that we open our minds and open our hearts to
correcting this injustice which has gone on far too long and finally
give the Native peoples of southeast Alaska the rapid and certain
settlement for which they have been waiting.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1746
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Unrecognized Southeast
Alaska Native Communities Recognition and Compensation Act''.
SEC. 2. FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
[[Page S8743]]
(1) In 1971, Congress enacted the Alaska Native Claims
Settlement Act (43 U.S.C. 1601 et seq.) (referred to in this
section as the ``Act'') to recognize and settle the
aboriginal claims of Alaska Natives to the lands Alaska
Natives had used for traditional purposes.
(2) The Act awarded approximately $1,000,000,000 and
44,000,000 acres of land to Alaska Natives and provided for
the establishment of Native Corporations to receive and
manage such funds and lands.
(3) Pursuant to the Act, Alaska Natives have been enrolled
in one of 13 Regional Corporations.
(4) Most Alaska Natives reside in communities that are
eligible under the Act to form a Village or Urban Corporation
within the geographical area of a Regional Corporation.
(5) Village or Urban Corporations established under the Act
received cash and surface rights to the settlement land
described in paragraph (2) and the corresponding Regional
Corporation received cash and land which includes the
subsurface rights to the land of the Village or Urban
Corporation.
(6) The southeastern Alaska communities of Haines,
Ketchikan, Petersburg, Tenakee, and Wrangell are not listed
under the Act as communities eligible to form Village or
Urban Corporations, even though the population of such
villages comprises greater than 20 percent of the
shareholders of the Regional Corporation for Southeast Alaska
and display historic, cultural, and traditional qualities of
Alaska Natives.
(7) The communities described in paragraph (6) have sought
full eligibility for lands and benefits under the Act for
more than three decades.
(8) In 1993, Congress directed the Secretary of the
Interior to prepare a report examining the reasons why the
communities listed in paragraph (6) had been denied
eligibility to form Village or Urban Corporations and receive
land and benefits pursuant to the Act.
(9) The report described in paragraph (8), published in
February, 1994, indicates that--
(A) the communities listed in paragraph (6) do not differ
significantly from the southeast Alaska communities that were
permitted to form Village or Urban Corporations under the
Act;
(B) such communities are similar to other communities that
are eligible to form Village or Urban Corporations under the
Act and receive lands and benefits under the Act--
(i) in actual number and percentage of Native Alaskan
population; and
(ii) with respect to the historic use and occupation of
land;
(C) each such community was involved in advocating the
settlement of the aboriginal claims of the community; and
(D) some of the communities appeared on early versions of
lists of Native Villages prepared before the date of the
enactment of the Act, but were not included as Native
Villages in the Act.
(10) The omissions described in paragraph (9) are not
clearly explained in any provision of the Act or the
legislative history of the Act.
(11) On the basis of the findings described in paragraphs
(1) through (10), Alaska Natives who were enrolled in the
five unlisted communities and their heirs have been
inadvertently and wrongly denied the cultural and financial
benefits of enrollment in Village or Urban Corporations
established pursuant to the Act.
(b) Purpose.--The purpose of this Act is to redress the
omission of the communities described in subsection (a)(6)
from eligibility by authorizing the Native people enrolled in
the communities--
(1) to form Urban Corporations for the communities of
Haines, Ketchikan, Petersburg, Tenakee, and Wrangell under
the Act; and
(2) to receive certain settlement lands and other
compensation pursuant to the Act.
SEC. 3. ESTABLISHMENT OF ADDITIONAL NATIVE CORPORATIONS.
Section 16 of the Alaska Native Claims Settlement Act (43
U.S.C. 1615) is amended by adding at the end thereof the
following new subsection:
``(e)(1) The Native residents of each of the Native
Villages of Haines, Ketchikan, Petersburg, Tenakee, and
Wrangell, Alaska, may organize as Urban Corporations.
``(2) Nothing in this subsection shall affect any
entitlement to land of any Native Corporation previously
established pursuant to this Act or any other provision of
law.''.
SEC. 4. SHAREHOLDER ELIGIBILITY.
Section 8 of the Alaska Native Claims Settlement Act (43
U.S.C. 1607) is amended by adding at the end thereof the
following new subsection:
``(d)(1) The Secretary of the Interior shall enroll to each
of the Urban Corporations for Haines, Ketchikan, Petersburg,
Tenakee, or Wrangell those individual Natives who enrolled
under this Act to the Native Villages of Haines, Ketchikan,
Petersburg, Tenakee, or Wrangell, respectively.
``(2) Those Natives who are enrolled to an Urban
Corporation for Haines, Ketchikan, Petersburg, Tenakee, or
Wrangell pursuant to paragraph (1) and who were enrolled as
shareholders of the Regional Corporation for Southeast Alaska
on or before March 30, 1973, shall receive 100 shares of
Settlement Common Stock in such Urban Corporation.
``(3) A Native who has received shares of stock in the
Regional Corporation for Southeast Alaska through inheritance
from a decedent Native who originally enrolled to the Native
Villages of Haines, Ketchikan, Petersburg, Tenakee, or
Wrangell, which decedent Native was not a shareholder in a
Village or Urban Corporation, shall receive the identical
number of shares of Settlement Common Stock in the Urban
Corporation for Haines, Ketchikan, Petersburg, Tenakee, or
Wrangell as the number of shares inherited by that Native
from the decedent Native who would have been eligible to be
enrolled to such Urban Corporation.
``(4) Nothing in this subsection shall affect entitlement
to land of any Regional Corporation pursuant to section 12(b)
or section 14(h)(8).''.
SEC. 5. DISTRIBUTION RIGHTS.
Section 7 of the Alaska Native Claims Settlement Act (43
U.S.C. 1606) is amended--
(1) in subsection (j), by adding at the end thereof the
following new sentence: ``Native members of the Native
Villages of Haines, Ketchikan, Petersburg, Tenakee, and
Wrangell who become shareholders in an Urban Corporation for
such a community shall continue to be eligible to receive
distributions under this subsection as at-large shareholders
of the Regional Corporation for Southeast Alaska.''; and
(2) by adding at the end thereof the following new
subsection:
``(s) No provision of or amendment made by the Unrecognized
Southeast Alaska Native Communities Recognition and
Compensation Act shall affect the ratio for determination of
revenue distribution among Native Corporations under this
section and the `1982 Section 7(i) Settlement Agreement'
among the Regional Corporations or among Village Corporations
under subsection (j).''.
SEC. 6. COMPENSATION.
The Alaska Native Claims Settlement Act (43 U.S.C. 1601 et
seq.) is amended by adding at the end thereof the following
new section:
``URBAN CORPORATIONS FOR HAINES, KETCHIKAN, PETERSBURG, TENAKEE, AND
WRANGELL
``Sec. 43. (a) Upon incorporation of the Urban
Corporations for Haines, Ketchikan, Petersburg, Tenakee, and
Wrangell, the Secretary, in consultation and coordination
with the Secretary of Commerce, and in consultation with
representatives of each such Urban Corporation and the
Regional Corporation for Southeast Alaska, shall offer as
compensation, pursuant to this Act, one township of land
(23,040 acres) to each of the Urban Corporations for Haines,
Ketchikan, Petersburg, Tenakee, and Wrangell, and other
appropriate compensation, including the following:
``(1) Local areas of historical, cultural, traditional, and
economic importance to Alaska Natives from the Villages of
Haines, Ketchikan, Petersburg, Tenakee, or Wrangell. In
selecting the lands to be withdrawn and conveyed pursuant to
this section, the Secretary shall give preference to lands
with commercial purposes and may include subsistence and
cultural sites, aquaculture sites, hydroelectric sites,
tidelands, surplus Federal property and eco-tourism sites.
The lands selected pursuant to this section shall be
contiguous and reasonably compact tracts wherever possible.
The lands selected pursuant to this section shall be subject
to all valid existing rights and all other provisions of
section 14(g), including any lease, contract, permit, right-
of-way, or easement (including a lease issued under section
6(g) of the Alaska Statehood Act).
``(2) $650,000 for capital expenses associated with
corporate organization and development, including--
``(A) the identification of forest and land parcels for
selection and withdrawal;
``(B) making conveyance requests, receiving title,
preparing resource inventories, land and resource use, and
development planning;
``(C) land and property valuations;
``(D) corporation incorporation and start-up;
``(E) advising and enrolling shareholders;
``(F) issuing stock; and
``(G) seed capital for resource development.
``(3) Such additional forms of compensation as the
Secretary deems appropriate, including grants and loan
guarantees to be used for planning, development and other
purposes for which Native Corporations are organized under
the Act, and any additional financial compensation, which
shall be allocated among the five Urban Corporations on a pro
rata basis based on the number of shareholders in each Urban
Corporation.
``(b) The Urban Corporations for Haines, Ketchikan,
Petersburg, Tenakee, and Wrangell, shall have one year from
the date of the offer of compensation from the Secretary to
each such Urban Corporation provided for in this section
within which to accept or reject the offer. In order to
accept or reject the offer, each such Urban Corporation shall
provide to the Secretary a properly executed and certified
corporate resolution that states that the offer proposed by
the Secretary was voted on, and either approved or rejected,
by a majority of the shareholders of the Urban Corporation.
In the event that the offer is rejected, the Secretary, in
consultation with representatives of the Urban Corporation
that rejected the offer and the Regional Corporation for
Southeast Alaska, shall revise the offer and the Urban
Corporation shall have an additional six months within which
to accept or reject the revised offer.
``(c) Not later than 180 days after receipt of a corporate
resolution approving an offer of the Secretary as required in
subsection (b), the Secretary shall withdraw the lands and
convey to the Urban Corporation title to the surface estate
of the lands and convey to the Regional Corporation for
Southeast Alaska title to the subsurface estate as
appropriate for such lands.
[[Page S8744]]
``(d) The Secretary shall, without consideration of
compensation, convey to the Urban Corporations of Haines,
Ketchikan, Petersburg, Tenakee, and Wrangell, by quitclaim
deed or patent, all right, title, and interest of the United
States in all roads, trails, log transfer facilities, leases,
and appurtenances on or related to the land conveyed to the
corporations pursuant to subsection (c).
``(e)(1) The Urban Corporations of Haines, Ketchikan,
Petersburg, Tenakee, and Wrangell may establish a settlement
trust in accordance with the provisions of section 39 for the
purposes of promoting the health, education, and welfare of
the trust beneficiaries and preserving the Native heritage
and culture of the communities of Haines, Ketchikan,
Petersburg, Tenakee, and Wrangell, respectively.
``(2) The proceeds and income from the principal of a trust
established under paragraph (1) shall first be applied to the
support of those enrollees and their descendants who are
elders or minor children and then to the support of all other
enrollees.''.
SEC. 7. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as shall
be necessary to carry out this Act and the amendments made by
this Act.
______
By Mr. SPECTER:
S. 1747. A bill to regulate the judicial use of presidential signing
statements in the interpretation of Act of Congress; to the Committee
on the Judiciary.
Mr. SPECTER. Mr President, I seek recognition today to offer the
Presidential Signing Statements Act of 2007. The purpose of this bill
is to regulate the use of Presidential Signing Statements in the
interpretation of acts of Congress. This bill is similar in substance
to the Presidential Signing Statements Act of 2006, which I introduced
on July 26, 2006. The Senate Judiciary Committee also held a hearing on
this topic on June 27, 2006.
I believe that this is necessary to protect our constitutional system
of checks and balances. This bill achieves that goal in the following
ways.
First, it prevents the President from issuing a signing statement
that alters the meaning of a statute by instructing Federal and State
courts not to rely on Presidential signing statements in interpreting a
statute.
Second, it grants Congress the power to participate in any case where
the construction or constitutionality of any act of Congress is in
question and a presidential signing statement for that act was issued
by (i) allowing Congress to file an amicus brief and present oral
argument in such a case; (ii) instructing that if Congress passes a
joint resolution declaring its view of the correct interpretation of
the statute, the court must admit that resolution into the case record;
and (iii) providing for expedited review in such a case.
Presidential signing statements are nothing new. Since the days of
President James Monroe, Presidents have issued statements when signing
bills. It is widely agreed that there are legitimate uses for signing
statements. For example, Presidents may use signing statements to
instruct executive branch officials how to administer a law. They may
also use them to explain to the public the likely effect of a law. And,
there may be a host of other legitimate uses.
However, the use of signing statements has risen dramatically in
recent years. When I introduced the Presidential Signing Statement bill
last year, I noted that as of June 26, 2006, President Bush had issued
132 signing statements. Since then, he has issued an additional 17
statements, for a total of 149 to date. In comparison, President
Clinton issued 105 signing statements during his two terms. Moreover,
President Bush's signing statements often raise objections to several
provisions of a law. For example, a recent report by the Government
Accountability Office released June 18, 2007, found that, for 11
appropriations acts for fiscal year 2006, President Bush issued signing
statements identifying constitutional concerns or objections to
160 different provisions appearing in the acts. While the mere numbers
may not be significant, the reality is that the way the President has
used those statements threatens to render the legislative process a
virtual nullity, making it completely unpredictable how certain laws
will be enforced.
The President cannot use a signing statement to rewrite the words of
a statute nor can he use a signing statement to selectively nullify
those provisions he does not like. This much is clear from our
Constitution. The Constitution grants the President a specific,
narrowly defined role in enacting legislation. Article I, section 1 of
the Constitution vests ``all legislative powers . . . in a Congress.''
Article I, section 7 of the Constitution provides that when a bill is
presented to the President, he may either sign it or veto it with his
objections. He may also choose to do nothing, thus rendering a so-
called pocket veto. The President, however, cannot veto part of bill,
he cannot veto certain provisions he does not like.
The Founders had good reason for constructing the legislative process
as they did: by creating a bicameral legislature and then granting the
President the veto power. According to The Records of the
Constitutional Convention, the veto power was designed by our Framers
to protect citizens from a particular Congress that might enact
oppressive legislation. However, the Framers did not want the veto
power to be unchecked, and so, in article I, section 7, they balanced
it by allowing Congress to override a veto by two-thirds vote.
As I stated when I introduced the Presidential Signing Statement bill
last year, this is a finely structured constitutional procedure that
goes straight to the heart of our system of check and balances. Any
action by the President that circumvents this finely structured
procedure is an unconstitutional attempt to usurp legislative
authority. If the President is permitted to rewrite the bills that
Congress passes and cherry pick which provisions he likes and does not
like, he subverts the constitutional process designed by our Framers.
The Supreme Court has affirmed that the constitutional process for
enacting legislation must be safeguarded. As the Supreme Court
explained in INS v. Chahda, ``It emerges clearly that the prescription
for legislative action in article I, section 1 and 7 represents the
Framers' decision that the legislative power of the Federal Government
be exercised in accord with a single, finely wrought and exhaustively
considered, procedure.''
So, while signing statements have been commonplace since our
country's founding, we must make sure that they are not being used in
an unconstitutional manner; a manner that seeks to rewrite legislation,
and exercise line item vetoes.
As I have previously explained, President Bush has used signing
statements in ways that have raised some eyebrows. An example is the
signing statement accompanying Senator McCain's ``anti-torture
amendment'' to the Department of Defense Emergency Supplemental
Appropriations Act, otherwise known as the ``McCain Amendment.'' In
that legislation, Congress voted by an overwhelming majority, 90 to 9,
to ban all U.S. personnel from inflicting ``cruel, inhuman or
degrading'' treatment on any prisoner held anywhere by the United
States. President Bush, who had threatened to veto the legislation,
instead invited Senator McCain to the White House for a public
reconciliation and declared they had a mutual goal: to make it clear to
the world that this government does not torture and that we adhere to
the international convention of torture.''
Now from that, you might conclude that by signing the McCain
amendment into law, President Bush and his administration has fully
committed to not using torture. But you would be wrong. After the
public ceremony of signing the bill into law, the President issued a
signing statement saying his administration would construe the new law
``in a manner consistent with the constitutional authority of the
President to supervise the unitary executive branch and as Commander in
Chief and consistent with the constitutional limitations on the
judicial power.'' This vague language may mean that, despite the
enactment of the McCain Amendment, the administration may still be
preserving a right to inflict torture on prisoners and to evade the
International Convention Against Torture.
Now, the National Defense Authorization Bill, like the McCain
amendment, has a crucial provision regarding torture: it provides that
the Combatant Status Review Tribunals, CSRTs, in Guantanamo Bay ``may
not consider a [detainee's] statement that was obtained through methods
that amount to torture.'' See section 1023(4)(e). But
[[Page S8745]]
who knows how this provision will be enforced if deemed inconsistent
with the unitary executive theory?
And, the McCain amendment is just the tip of the iceberg: On close
examination of the same signing statement, we see that President Bush
has declared the right to construe the entire Detainee Treatment Act
and all provisions relating to detainees, in a manner consistent with
the unitary executive theory and with his powers as Commander and
Chief. This is extremely troublesome. Like the DTA, this bill has
crucial sections relating to detainees. Specifically, this bill
contains much-needed provisions that protect detainees' due process
rights in CSRT procedures, including allowing detainees a right to
legal counsel, a right to compel and cross examine witnesses, and a
right to have their status determined by a military judge. Should a
similar signing statement be issued to S. 1547, that all sections
related to detainees will be construed in a certain way, there is
really no way to know how these crucial provisions will be enforced.
We must ensure that such provisions, and for that matter, any and all
provisions in this bill, are not subject to revision by a Presidential
signing statement.
In addition to these examples, I have noted another instance in which
a questionable signing statement was issued, for the PATRIOT Act. We
passed the PATRIOT Act after months of deliberation. We debated nearly
every provision, often redrafting and revising. Moreover, we worked
very closely with the President because we wanted to get it right. We
wanted to make sure that we were passing legislation that the executive
branch would find workable. In fact, in many ways, the process was an
excellent example of the legislative branch and the executive branch
working together towards a common goal.
In the end, the bill that was passed by the Senate and the House
contained several oversight provisions intended to make sure the FBI
did not abuse the special terrorism-related powers to search homes and
secretly seize papers. It also required Justice Department officials to
keep closer track of how often the FBI uses the new powers and in what
type of situations.
The President signed the PATRIOT Act into law, but afterwards, he
wrote a signing statement that said he could withhold any information
from Congress provided in the oversight provisions if he decided that
disclosure would ``impair foreign relations, national security, the
deliberative process of the executive, or the performance of the
executive's constitutional duties.''
As I noted last year, during the entire process of working with the
President to draft the PATRIOT Act, he never asked the Congress to
include this language in the act. At a hearing we held last June on
signing statements, I asked an executive branch official, Michelle
Boardman from the Office of Legal Counsel, why the President did not
ask the Congress to put the signing statement language into the bill.
She simply didn't have an answer.
Given this backdrop, I believe this bill is necessary. As I noted
when I introduced the Presidential Signing Statement bill last summer,
this bill does not seek to limit the President's power, and it does not
seek to expand Congress's power. Rather, this bill simply seeks to
safeguard our Constitution.
This bill will provide courts with much-needed guidance on how
legislation should be interpreted. The recent GAO report on
Presidential Signing Statements found that Federal courts cited or
referred to presidential signing statements in 137 different opinions
reported from 1945 to May 2007. It also shows that the Supreme Court's
reliance on presidential signing statements has been sporadic and
unpredictable. In some cases, such as United States v. Lopez, 115 S.Ct.
1624 at 1631, 1995, where the Court struck down the Gun-Free School
Zones Act, the Supreme Court has relied on Presidential signing
statements as a source of authority to interpret an act, while in other
cases, such as the military tribunals case, Hamdan v. Rumsfeld, 126
S.Ct. 2749 (2006), Scalia dissenting, it has conspicuously declined to
do so. This inconsistency has the unfortunate result of rendering the
effect of Presidential signing statements on Federal law unpredictable.
As I stated when I initially introduced the Presidential Signing
Statements Act of 2006, it is well within Congress's power to resolve
judicial disputes such as this by enacting rules of statutory
interpretation. In fact, the Department of Defense Authorization bill
already contains at least one ``rule of construction'' provision. See
section 845(e). This power flows from article 1, section 8, clause 18
of the Constitution, which gives Congress the power ``To make all laws
which shall be necessary and proper for carrying into execution the
foregoing powers, and all other powers vested by this Constitution in
the government of the United States, or in any department or officer
thereof.'' Rules of statutory interpretation are ``necessary and
proper'' to execute the legislative power.
Several scholars have agreed: Jefferson B. Fordham, a former dean of
the University of Pennsylvania Law School said, ``[I]t is within the
legislative power to lay down rules of interpretation for the future;''
Mark Tushnet, a professor at Harvard Law School explained, ``In light
of the obvious congressional power to prescribe a statute's terms, and
so its meaning, congressional power to prescribe interpretive methods
seems to me to follow;'' Michael Stokes Paulsen, an associate dean of
the University of Minnesota Law School noted, ``Congress is the master
of its own statutes and can prescribe rules of interpretation governing
its own statutes as surely as it may alter or amend the statutes
directly.'' Finally, J. Sutherland, the author of the leading
multivolume treatise for the rules of statutory construction has said,
``There should be no question that an interpretive clause operating
prospectively is within legislative power.''
Furthermore, any legislation that sets out rules for interpreting an
act makes legislation more clear and precise, which is exactly what we
aim to achieve here in Congress. Congress can and should exercise this
power over the interpretation of Federal statutes in a systematic and
comprehensive manner.
Put simply, this bill seeks to implement measures that will safeguard
the constitutional structure of enacting legislation. In preserving
this structure, this bill reinforces the system of checks and balances
and separation of powers set out in our Constitution, and I urge my
colleagues to support it.
______
By Mr. COLEMAN (for himself, Mr. DeMint, Mr. McConnell, Mr.
Sessions, Mrs. Hutchison, Mr. Isakson, Mr. Craig, Mr.
Chambliss, Mr. Graham, Mr. Cornyn, Mr. Bond, Mr. McCain, Mr.
Cochran, Mr. Voinovich, Mr. Thune, Mr. Coburn, Mr. Allard, Mr.
Roberts, and Mr. Kyl):
S. 1748. A bill to prevent the Federal Communications Commission from
repromulgating the fairness doctrine; to the Committee on Commerce,
Science, and Transportation.
Mr. COLEMAN. Mr. President, I ask unanimous consent that the text of
the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 1748
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Broadcaster Freedom Act of
2007''.
SEC. 2. FAIRNESS DOCTRINE PROHIBITED.
Title III of the Communications Act of 1934 is amended by
inserting after section 303 (47 U.S.C. 303) the following new
section:
``SEC. 303A. LIMITATION ON GENERAL POWERS: FAIRNESS DOCTRINE.
``Notwithstanding section 303 or any other provision of
this Act or any other Act authorizing the Commission to
prescribe rules, regulations, policies, doctrines, standards,
or other requirements, the Commission shall not have the
authority to prescribe any rule, regulation, policy,
doctrine, standard, or other requirement that has the purpose
or effect of reinstating or repromulgating (in whole or in
part) the requirement that broadcasters present opposing
viewpoints on controversial issues of public importance,
commonly referred to as the `Fairness Doctrine', as repealed
in General Fairness Doctrine Obligations of Broadcast
Licensees, 50 Fed. Reg. 35418 (1985).''.
______
By Mr. KYL:
S. 1749. A bill to amend the Federal Rules of Criminal Procedure to
provide
[[Page S8746]]
adequate protection to the rights of crime victims, and for other
purposes; to the Committee on the Judiciary.
Mr. KYL. Mr. President, I rise to introduce The Crime Victims' Rights
Rules Act, which would continue the work started in The Scott Campbell,
Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime
Victims' Rights Act.
The bill would make comprehensive procedural changes to the Federal
Rules of Criminal Procedure to protect crime victims' rights throughout
the federal criminal process, thereby guaranteeing that crime victims'
rights will be fully respected in our federal courts.
As one of the Senate sponsors of the CVRA, I know that Congress
intended the Act to bring dramatic changes to the way that the federal
courts treat crime victims. Fortunately, in the two-and-a-half years
since that legislation became law, positive strides have been made for
crime victims. For example, with funding provided by act, the National
Crime Victims Law Institute has been able to support crime victims'
legal clinics around the country. I am also encouraged that court
decisions have recognized the importance of crime victims' rights in
the process.
But while progress has been made in implementing the CVRA, at least
one important step remains to be taken: The Federal Rules of Criminal
Procedure must be comprehensively amended to recognize the rights of
crime victims throughout the process.
The Federal rules have been described as ``the playbook'' for Federal
judges, prosecutors, and defense attorneys. Currently, the Federal
rules make virtually no mention of crime victims. If crime victims are
to fully integrated into the daily workings of our criminal justice
process, then their role in that process must be fully protected in the
federal rules.
I am encouraged to see that the Federal courts have been taking some
modest steps toward protecting crime victims in the Federal rules.
Federal district court judge Paul Cassell initiated the process by
recommending rule changes to the Advisory Committee on Criminal Rules.
His comprehensive set of useful proposals appeared in an excellent law
review article published in The Brigham Young University Law Review in
2005. In recent months, the Advisory Committee has adopted a few of his
proposals to implement some aspects of the CVRA. These changes are
expected to take effect next year.
These amendments are positive, but far more remains to be done. The
Advisory Committee's six proposed amendments, five changes to existing
rules and one new rule, do little more than reiterate limited parts of
the statute. Crime victims have been treated unfairly in the Federal
criminal justice system for far too long to be left to rely on a
handful of minimal protections. To respect crime victims' rights fully
in the process, it is necessary to take more decisive and comprehensive
action to thoroughly amend the rules.
When Congress passed the CVRA in 2004, it promised that crime victims
would have rights throughout the criminal justice process. Of
particular importance, the CVRA guaranteed that crime victims would
have the right to be treated with ``fairness.'' My proposed amendments
would add to the Federal rules the changes needed to treat crime
victims fairly. These changes to the rules would provide vital
protections for crime victims without interfering with the rights of
criminal defendants or the need for Federal judges to manage their
dockets effectively.
One example of the bill's changes is the amendment to Rule 50 to
protect the victims' right to a speedy trial. The bill would amend Rule
50 to provide: ``The court shall assure that a victim's right to
proceedings free from unreasonable delay is protected. A victim has the
right to be heard regarding any motion to continue any proceeding. If
the court grants a motion to continue over the objection of a victim,
the court shall state its reasons in the record.''
It is hard for me to see how anyone could object to this procedural
change. The CVRA promised to crime victims the right ``to proceedings
free from unreasonable delay.'' The bill would place that right into
the Federal rules.
Another example of the kind of change that the bill would make is its
amendment of Rule 21 to protect crime victims' rights in transfer
decisions. In some situations, federal courts can transfer a criminal
case from one district to another. The bill would amend Rule 21 to
provide: ``The court shall not transfer any proceeding without giving
any victim an opportunity to be heard. The court shall consider the
views of the victim in making any transfer decision.''
It is again hard to understand how anyone could object to the
requirement that a judge give a crime victim the chance to be heard
before a case is transferred to a distant location. For example, the
bill would have protected the right of the Oklahoma City bombing
victims to present to the trial judge their views on whether the trial
should have been transferred out of Oklahoma and, if so, to where.
The bill does not mandate any particular substantive result, leaving
it to the trial judge to make the ultimate determination about whether
to transfer a case. But the bill would change the process by which such
decisions are made, ensuring that victims are treated fairly by giving
them an opportunity to provide their views to the judge.
A further example of the changes in the bill is the amendment to Rule
48 to protect the victim's right to be heard before a case is
dismissed. The bill would provide: ``In deciding whether to grant the
government's motion to dismiss, the court shall consider the views of
any victims.''
With this procedural change, the victim would have the opportunity to
present the court any reasons why a case should not be dismissed. This
right is implicit in the CVRA's mandate that crime victims be treated
with fairness. It is hard to understand how a crime victim is treated
with fairness if the court dismisses a case without considering the
victim's position on the dismissal.
Indeed, the only case to have considered this issue reached exactly
this conclusion. As United States v. Heaton explains,
When the government files a motion to dismiss criminal
charges that involve a specific victim, the only way to
protect the victim's right to be treated fairly and with
respect for her dignity is to consider the victim's views on
the dismissal. It is hard to begin to understand how a victim
would be treated with fairness if the court acted
precipitously to approve dismissal of a case without even
troubling to consider the victim's views. To treat a person
with ``fairness'' is generally understood as treating them
''justly'' and ``equitably.'' A victim is not treated justly
and equitably if her views are not even before the court.
Likewise, to grant the motion without knowing what the victim
thought would be a plain affront to the victim's dignity.
U.S. v. Heaton, 458 F. Supp. 2d 1271, 1272 (D. Utah 2006).
I agree with Heaton that the CVRA requires that crime victims have
the opportunity to submit their views to the court on any dismissal.
That is why this bill would place this right specifically into the
federal criminal rules.
One particularly important part of the bill is its change to Rule 17
to protect the confidential and personal records of crime victims. The
Advisory Committee itself proposed an amendment to Rule 17 to create
specific procedures for subpoenas directed at confidential and private
information concerning crime victims.
This change was designed to prevent a recurrence of the problems that
recently occurred in the Elizabeth Smart kidnapping case in Salt Lake
City. My colleagues may remember this case, which involved the
abduction of a teenaged girl from her home. Fortunately, she was found
a year later and the suspected kidnapper apprehended. In the state
criminal proceedings that followed, defense attorneys subpoenaed
confidential school and medical records about Elizabeth. Because these
subpoenas went directly to Elizabeth's school and hospital, she was
never given the opportunity to object to them, and some confidential
information was improperly turned over to defense counsel.
The Advisory Committee has recognized that this same ``end run''
around the victim could occur under the federal rules. It has therefore
adopted a rule requiring notice to crime victims before their personal
and confidential information is subpoenaed.
But this seeming protection has a catch: a defendant can avoid giving
any notice to victim by arguing to a court, in an ex parte proceeding,
that exceptional circumstances exist.
[[Page S8747]]
This kind of ex parte procedure raises serious ethical concerns. In
fact, the American Bar Association wrote to the Advisory Committee in
February urging it to make certain that crime victims receive notice
and an opportunity to be heard before such subpoenas issue. As Robert
Johnson, Chair of the ABA's Criminal Justice section explained, the
canons of judicial ethics forbid ex parte contacts with judges on
substantive matters. Mr. Johnson went on to urge the Advisory Committee
to give careful consideration of the ethical violations that might
occur from ex parte subpoenas:
While the proposed amendment to Rule 17 is intended to
protect the interests of crime victims, the ABA urges the
Committee to carefully examine the proposal to determine if
the proposal regarding Rule 17 would be contrary to the
Court's responsibility under Canon 3(B)(7) in allowing ex
parte contact on a substantive matter. Even if the Committee
decides that it is not a substantive matter, the Committee
should consider whether the proposed rule would allow a
tactical advantage as a result of the ex parte communication
and the judge is required to promptly notify the other party
of the substance of the ex parte communication and allow an
opportunity to respond.
It seems that the Advisory Committee's proposed rule permitting ex
parte subpoenas of personal and confidential information of crime
victims in some situations might run afoul of these ethical rules.
Accordingly, under the bill, crime victims would enjoy an absolute
right to notice before such information as psychiatric and medical
records could be subpoenaed. This is the standard process that our
adversary system of justice uses.
The CVRA promised crime victims that they would enjoy ``the right to
be treated with fairness and with respect for the victim's dignity and
privacy.'' My bill would respect victims' dignity and privacy by giving
them a court hearing before any of their confidential records could be
turned over to an offender accused of victimizing them. This is not to
say that such information will never be disclosed to the defense. A
judge will have to make the determination whether disclosure is
appropriate. But the judge would make that determination only after
hearing from the prosecutor, defense counsel and most important of all
the crime victim whose privacy rights are directly affected.
One of the most significant parts of the bill is its creation of a
new Rule 44.1, which would provide: ``When the interests of justice
require, the court may appoint counsel for a victim to assist the
victim in exercising their rights as provided by law.''
This important change builds on existing Federal law. Title 28
already permits the court in a criminal case to ``request an attorney
to represent any person unable to afford counsel.'' For criminal cases
involving child victims, Title 18 U.S.C. section 3509 allows the
appointment of a guardian to represent the child's interests. Although
the statutes provide these rights, they have yet to be actually
implemented so that crime victims can actually take advantage of them.
I want to be clear that I am not proposing that all crime victims
should have counsel appointed for them. At the same time, though, I
would think all could agree that there are situations where a trial
court ought, as a matter of discretion, to have the ability to appoint
legal counsel for a crime victim. For example, a crime victim might
present a novel or complex claim that the courts have not yet
considered. Or a crime victim might suffer from physical or mental
disabilities as a result of the crime that would make it difficult for
the victim to be heard without the help of an advocate.
For many years, courts have had the ability to appoint counsel for
potential defendants on a discretionary basis. My bill would allow that
same, well-recognized power to be used to appoint counsel for crime
victims.
One last section of the bill deserves special note because it
demonstrates the need for Congress to step into the rules process. The
bill would amend Rule 32 to guarantee victims the right to speak at
sentencing hearings.
This is a change from the more limited right that the Advisory
Committee has given victims the right ``to be reasonably heard.'' The
Advisory Committee's note to this provision seemingly suggests that
courts would not have to give all victims the right to speak at
sentencing. This more limited right runs counter to the legislative
history as to how the CVRA was to operate. While the CVRA gave crime
victims the right to be reasonably heard, it was the undisputed
legislative intent that victims would have the right to speak. I
explained on the Senate floor at the time the act was under
consideration that:
It is not the intent of the term ``reasonably'' in the
phrase ``to be reasonably heard'' to provide any excuse for
denying a victim the right to appear in person and directly
address the court. Indeed, the very purpose of this section
is to allow the victim to appear personally and directly
address the court.
My colleague Senator Feinstein remarked at that time that my
understanding was her ``understanding as well.''
The Advisory Committee's action also contravenes at least two
published court decisions on this issue. In United States v. Kenna,
Judge Kozinski wrote for the Ninth Circuit that the CVRA's legislative
history reveals ``a clear congressional intent to give crime victims
the right to speak at proceedings covered by the CVRA.'' And in United
States v. Degenhardt, Judge Cassell reached the same conclusion writing
for the District of Utah.
My bill would provide the right of victims to speak at sentencing
hearings. Of course, prosecutors, defense counsel, and defendants have
on enjoyed this right. Crime victims, too, deserve the opportunity to
speak to the court to ``allocute'' as this right is called and to make
sure that the court and the defendant understand the crime's full harm.
I will not take the time here to go through all of the other
provisions of the bill. But I did want to highlight one important note
about the appropriateness of Congress acting to amend the rules to
protect crime victims. Congress enacted the CVRA in October 2004. In
the almost 3 years since then, I have waited patiently to give the
federal courts the first opportunity to review the need for rule
changes. At the same time, though, I have made clear my position, as
one of the cosponsors of the CVRA, that Congress expected significant
reforms in the Federal rules. As I explained to my colleagues at that
time, the crime victims' community in this country was looking to the
CVRA to serve as a model for the states and a formula for fully
protecting crime victims. It was because the CVRA was expected to have
such a far-reaching impact that the crime victims' community was
willing to defer, at least temporarily, its efforts to pass a
constitutional amendment protecting victims' rights.
I made this point directly to the advisory committee in a letter I
sent to Judge Levi on February 15 of this year. Thus, several months
ago, I placed the Advisory Committee on notice that, if it failed to
act to fully protect crime victims, Congress might step into the
breach.
A few weeks ago, Judge Levi replied to my letter, and I greatly
appreciate his comments and explanations. In his reply, he acknowledged
that many of the proposals were worthy of close attention. He
indicated, however, that the Advisory Committee was going to delay
action on them for some indefinite period of time. The reasons he gave
for the delay were to:
1. gather more information on precisely how the proposals
would operate in specific proceedings and what effects they
might have, 2. obtain empirical data substantiating the
existence and nature of any problem or problems that could be
addressed by rule, and 3. provide additional time for courts
to acquire experience under the CVRA and to develop case law
construing it.
Judge Levi also suggested that some of the proposed rule changes
would have created, in his view, new ``substantive rights'' for crime
victims that went beyond the CVRA.
Judge Levi's letter demonstrates why the Rules Enabling Act wisely
left the final decision on how to structure rules of evidence and
procedure to Congress. The letter refers to the need to ``gather more
information'' and ``empirical data'' on crime victims'' issues before
proceeding. While some might point out that the Advisory Committee has
already had more than 2\1/2\ years to collect such data, I can
appreciate the difficulty that a court rules committee can have in
assessing the scope of a national problem. Congress, however, is
already well-informed on the need for protecting crime victims' rights.
[[Page S8748]]
Congress adopted the CVRA only after 8 years of legislative efforts
and hearings on the Crime Victims Rights Amendment. This record leaves
Congress well positioned to recognize the need for prompt and effective
action to protect crime victims.
The letter also refers to the need for courts to develop case law
construing the CVRA. The problem with this approach is that the
anticipated case law may never develop. Most crime victims are not
trained in the nuances of the law and lack the means to retain legal
counsel. Victims are often indigent and are frequently emotionally and
physically harmed by the defendant's crime. They are then involuntarily
forced into the middle of complicated and unfamiliar legal proceedings.
To expect that in these circumstances, crime victims will often be able
to undertake the kind of sophisticated and pathbreaking litigation that
would be necessary to establish crime victims seems unreasonable. One
of the main reasons for the CVRA was to change a legal culture that has
been hostile to crime victims. To expect that this legal culture will
somehow, on a case-by-case basis, welcome crime victims is unlikely.
Indeed, it is ironic that while waiting for case law to ``develop,''
the Advisory Committee refused to add to the Federal rules a provision
confirming the existing discretionary right of trial judges to appoint
legal counsel for crime victims who need legal assistance on
complicated issues.
The wait-for-caselaw approach is also troubling because it assumes
that Federal court litigation will serve sufficiently to clarify the
rights of victims in the Federal system. But the Federal Rules of
Criminal Procedure form the template for rules of criminal procedure in
states throughout the country. One of the main purposes of the CVRA was
to create a model for protecting victims in the criminal justice
system. Unless the text of the Federal rules themselves protects crime
victims, the states will not have a model they can look to in drafting
their own rules to guarantee victims fair treatment.
The final reason given for deferring action on rules changes is that
the Advisory Committee thought that some of the changes might create
new substantive rights better left to Congress. It's a bit of an
Alphonse-and-Gaston situation: Congress says ``after you'' to the
Advisory Committee, only to have the Advisory Committee say ``after
you.'' To avoid an impasse that leaves crime victims unprotected,
obviously someone needs to take the lead. That is why I am today
introducing The Crime Victims' Rights Rules Act.
One last provision in the bill is also worth highlighting. The bill
includes a sense of the Congress provision that crime victims ought to
be represented on the Advisory Committee on Criminal Rules.
This point was called to my attention by Professor Douglas Beloof, a
distinguished law professor at the Lewis and Clark College of Law and
the Director of the well-regarded National Crime Victims Law Institute.
Professor Beloof testified before the Advisory Committee in January.
He was surprised to discover at that time that, while the Justice
Department, the defense bar, and judges are all represented on the
Committee, there is no representative for crime victims. Not only does
this leave crime victims organizations without a liaison for bringing
information to the attention of the Committee, but, more important, it
deprives the Committee of the valuable perspective that such a
representative could bring on the rule change issues the Committee
regularly considers.
With the passage of the CVRA, crime victims, no less then the Justice
Department and the defense bar, became participants with recognized
rights in the criminal justice process. They should, therefore, be
represented directly on the Advisory Committee on Criminal Rules.
When Congress passed the CVRA, it made a commitment to crime victims
that they would no longer be overlooked in the criminal justice
process. Nowhere is that commitment better exemplified than in the
CVRA's promise that victims will be given ``the right to be treated
with fairness and with respect for the victim's dignity and privacy.''
Until the rules governing criminal proceedings in our Federal courts
fully protect crime victims, that important goal will not be achieved.
I urge my colleagues to carry forward the promises made in the Crime
Victims Rights Act. Crime victims' rights must be respected throughout
the Federal Rules of Criminal Procedure. The Crime Victims' Rights
Rules Act would amend the rules to ensure that crime victims are no
longer overlooked in the federal criminal process.
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