Congressional Record, Volume 163 Issue 172 (Wednesday, October 25, 2017)

[Congressional Record Volume 163, Number 172 (Wednesday, October 25, 2017)]
[House]
[Pages H8194-H8204]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND SETTLEMENTS ACT OF
2017

General Leave

Mr. COLLINS of Georgia. Mr. Speaker, I ask unanimous consent that all
Members may have 5 legislative days to revise and extend their remarks
and to include extraneous material on H.R. 469.
The SPEAKER pro tempore (Mr. Norman). Is there objection to the
request of the gentleman from Georgia?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 577 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 469.
The Chair appoints the gentleman from Tennessee (Mr. Duncan) to
preside over the Committee of the Whole.

{time} 1621

In the Committee of the Whole

Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 469) to impose certain limitations on consent decrees and
settlement agreements by agencies that require the agencies to take
regulatory action in accordance with the terms thereof, and for other
purposes, with Mr. Duncan from Tennessee in the chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
The gentleman from Georgia (Mr. Collins) and the gentleman from Rhode
Island (Mr. Cicilline) each will control 30 minutes.
The Chair recognizes the gentleman from Georgia.
Mr. COLLINS of Georgia. Mr. Chairman, I yield myself such time as I
may consume.
Mr. Chairman, I am glad to be here on H.R. 469. We have had the
opportunity, through rule debate yesterday, to discuss this.
What we are coming forward with today is a bill that I have
introduced that basically breaks down to what we know is a sue and
settlement ban on this part of my bill. There are other parts that we
are going to get to as we go forward in this.
But I think I want to start off this debate today by simply stating
some of the foundational issues--things that we come here and talk
about many times on the floor of the House have to do with bills and
discussions. But one of the things I think that has been very
disturbing for me--and I know many of our colleagues as we have come up
here--is the disturbing trend of moving away from Congress relieving
its powers and taking ownership of its Article I authority, and doing
the oversight, doing the planning, doing the budgeting, and then sort
of moving that more toward the executive branch or letting the judicial
system take responsibility.
And I think one of the things that we are starting out with today in
these bills, that we have taken up over the past 2 days, is a general
discussion to move back toward Article I authority, which Congress is
doing the legislating and the oversight that it is supposed to be, and
the executive branch is following through in their role of actually
executing the laws that are made, judicial, of course, being the
interpretive branch.
What we are seeing in this bill--and one of the reasons for our sue
and settlement legislation, which is my part of this bill, and I want
to start here, and we will continue as we go through this through the
other parts as we go--is really a fairness issue. And this is not
specific to one party in the executive branch. I stated this yesterday.
Sometimes it gets mixed up. But hear me clearly: I don't care the party
of the resident at 1600 Pennsylvania Avenue. I do not care who they may
be in the sense of what they do in that job. What I want to know is:
Are they fulfilling the executive branch role and not overstepping
Congress' role?
What we have seen over previous administrations, including the last
one and the previous administration, especially under this area of sue
and settlement that increased greatly during the last administration,
was this idea of taking a law that we have passed, having the
regulatory agency's job to execute that law; but, at the same point in
time, being sued by a friendly party, or another party, on a deadline
of the bill, or something that they want to, they go into, say, with
EPA or another agency, and they discuss this lawsuit. They come to an
agreement, and they

[[Page H8195]]

file the suit. Many times the suit and the consent were filed on the
same day.
The consent decree--now, look, consent decrees are good judicial
tools. They have been used, and will continue to be used, even under
this bill. But what we don't want to have happen is when the consent
decree basically comes at the time of the suit, or just shortly
thereafter, where the party that wants to see a specific agenda pushed,
along with a willing agency, goes to a judge, is able to get that
consent decree, and then turn around and give it to somebody else and
say: You now have to live under this without any emphasis or any input
from the other party.

So we are simply saying: Let's make this a little fair. You are going
to have to publicize notice, you are going to have to actually include
others who may have a problem with this consent decree, and you are
going to have to do it a little more transparently.
So we are going to start here today, Mr. Chairman. We are going to
talk about these issues and coming forward. We can talk about many
other things as the day progresses, but, at the end of the day, it is
about Congress itself taking control of its Article I authority and
saying, ``We are going to be the legislative branch that we are called
to be,'' and the executive taking their role and judiciary taking
theirs.
Mr. Chairman, I reserve the balance of my time.
Mr. CICILLINE. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I rise in opposition to H.R. 469, an unwarranted and
costly intrusion into Congress' powers under Article I of the
Constitution that will undermine the enforcement of statutory
deadlines.
When passing laws, Congress routinely establishes mandatory deadlines
for agency action. These statutory deadlines serve several purposes.
They establish congressional priorities, attempt to reduce undue delay
in an agency's compliance with the law, and communicate the importance
of a legal requirement to the public. But because agency resources are
limited, there is widespread noncompliance with statutory deadlines, as
the Administrative Conference of the United States has long observed.
Accordingly, a plaintiff with standing may file a lawsuit to complete
a schedule for an agency to complete an action required by Congress,
often referred to as a ``deadline suit.'' As the nonpartisan Government
Accountability Office, the GAO, reported earlier this year, ``Most
deadline suits are resolved through a negotiated settlement agreement
because, in the majority of them, it is undisputed that a statutory
deadline was missed,'' and there was no legal defense to the lawsuit.
But proponents of H.R. 469 assert that these settlements undercut
applicable administrative law and short-circuit review of new
regulations. This premise is based on a report by the Chamber of
Commerce that the so-called sue and settle process is increasingly
being used as a technique to shape agencies' regulatory agendas. This
concern, however, is unsupported by any independent evidence and has
been debunked by the GAO.
In two reports on deadline suits, the GAO has found that, ``the
settlement agreements did not affect the substantive basis or
procedural rulemaking requirements,'' of the agencies it studied.
In its December 2014 report on deadline lawsuits involving the
Environmental Protection Agency, the GAO determined that none of the
settlements finalized under the Obama administration ``included terms
that finalized the substantive outcome of a rule.'' The GAO underscored
this point in the title of its report: ``Impact of Deadline Suits on
EPA's Rulemaking is Limited.''
In its February 2017 report on deadline suits involving the
Endangered Species Act, the GAO found that ``the settlement agreements
did not affect the substantive basis or procedural rulemaking
requirements the agencies were to follow in completing the actions,
such as providing opportunities for public notice and comment on
proposed listing rules.''
Leading experts have also debunked the Chamber's sue and settle
narrative. John Cruden, a senior career official at the Justice
Department for more than two decades during two Republican and two
Democratic administrations, testified on a substantially identical bill
that he was ``not aware of any instance of a settlement that could
remotely be described as collusive, but that the Justice Department
vigorously represented the Federal agency, defending the agency's legal
position, and obtaining in any settlement the best possible terms that
were consistent with the controlling law.''
Other administrative law experts, such as Robert Weissman, the
president of Public Citizen, have similarly testified that sue and
settlement allegations are patently false.
This bill is also unnecessary because current law and agency practice
already restrict the use of settlement policy to shape regulatory
priorities. During its exhaustive review of deadline litigation, the
GAO found that the Justice Department is guided by the Meese memo of
1986, when litigating deadline suits. This policy, as the GAO noted
earlier this year, limits the settlement of a deadline suit to ``only
include a commitment to perform a mandatory action by an agreed upon
schedule and would not otherwise predetermine or prescribe a specific
substantive outcome for the actions to be completed by the agencies.''
The Meese memo was codified in 1991, in the Code of Federal
Regulations, and applies to settlement policy today. The Meese policy
primarily restricts agencies from using settlement policy to contravene
the law or congressional intent.

{time} 1630

As the majority noted in its report on a substantially identical
version of the bill considered last Congress, this policy is grounded
in separation of powers concerns. There is no evidence that agencies do
not follow this policy, and the majority's witnesses in prior hearings
on this proposal have been unable to provide examples of settlements
that violate the Meese policies.
H.R. 469 is also wasteful and undermines Congress' powers under
Article I of the Constitution. Congress, not agencies, establish
regulatory priorities through statutes. Agencies do not have discretion
to pick and choose regulatory priorities where Congress has expressly
instructed that certain actions be undertaken by a specific date. By
imposing a series of onerous procedures that will constrain the use of
settlements to resolve a Federal agency's noncompliance with the law,
H.R. 469 erodes the constitutional function of the legislative branch.
Finally, the bill is also costly. The Congressional Budget Office
notes that this bill greatly lengthens the settlement process, costing
millions of dollars and straining the Treasury's Judgment Fund through
increased attorney's fees.
In closing, I strongly oppose this measure.
I now yield the balance of my time to the gentleman from Michigan
(Mr. Conyers), our ranking member, to control.
Mr. CONYERS. Mr. Chair, I reserve the balance of my time.
Mr. GOODLATTE. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, our system of government is a tripartite one, with each
branch having certain defined functions delegated to it. The Congress
is charged with writing the laws, the President with executing the
laws, and the judiciary with interpreting them.
The Constitution divides powers between the branches in this manner
in order to guard against the abuse of power by any one branch. The
separation of powers is at the core of the fundamental premise of our
constitutional design that a limited government, divided into three
branches exercising enumerated powers, is necessary to protect
individual liberty and the rule of law.
Unfortunately, over the last several decades, Congress has allowed
its powers to gradually be chipped away at by the other branches. By
allowing its powers to be diminished, Congress, especially this House,
effectively is permitting the people to be deprived of their most
responsive voice in the Federal Government. Through the legislation
before us today and other legislation that the House has actively
pursued in recent years, we can begin to

[[Page H8196]]

reestablish and enforce the limits on the authority of the other two
branches.
Although no package of bills by itself can rebuild Congress'
institutional strength and restore the Constitution's integrity, it is
absolutely necessary that Congress begin reasserting the powers that it
has ceded to the other branches. This package of bills promotes the
restoration of Congress' Article I powers.
The first bill in the package addresses executive branch negotiated
regulatory decrees and settlements. Over the past several decades,
consent decrees and settlement agreements increasingly have been used
in Federal litigation to allow the executive branch to write new law in
ways that give short shrift to the requirements of the Administrative
Procedure Act, Regulatory Flexibility Act, and other laws by which
Congress has prescribed how agencies must conduct rulemaking.
While the executive does have some regulatory authority, these
settlements and consent decrees have been used to aggrandize that
authority and shift regulatory priorities under the cloak of judicial
authority. This subverts the boundaries both the Constitution and
Congress have placed on administrative authority.
The Sunshine for Regulations and Regulatory Decrees and Settlements
Act limits the ability of the executive branch to collude with
plaintiffs to abuse consent decrees and settlement agreements in a
manner that allows the executive to thwart laws written by Congress and
increases the power of the judiciary beyond its constitutional limits.
The second bill in the package, the Judgment Fund Transparency Act,
increases transparency over Federal spending by requiring the Treasury
Department to publish data on settlements and court-offered judgments
entered against the Federal Government.
One of Congress' core powers is the authority to authorize and
appropriate money from the Treasury. In order to properly exercise this
power, Congress needs to know how the bill it has appropriated is being
spent.
This bill will allow Congress to better scrutinize and understand
where Federal taxpayer dollars are going. Only through the transparency
this bill provides can Congress make the executive and the judiciary
more accountable for the money that comes out of the Judgment Fund.
The final bill in the package, the Article I Amicus and Intervention
Act, makes clear Congress' ability to defend and assert its
institutional interests in litigation that puts the powers and
responsibilities of Congress into question.
Currently, when the executive branch declines to pursue litigation in
defense of an act of Congress, it is not required to give Congress
notice sufficient to allow the House or Senate to defend the lawsuit
before court filing deadlines have expired. In addition, the House of
Representatives, unlike the Senate, does not have a statutory right to
intervene or file amicus briefs in cases questioning congressional
authority. This legislation ensures that both Houses of Congress have
adequate time and a right to intervene in litigation that questions
congressional authority.
We cannot continue to abdicate our powers and responsibilities to the
other branches of government, weakening the separation of powers
enshrined in our Constitution and threatening the very liberty
divide powers were designed to protect.

Mr. Chair, I ask my colleagues to support this legislation, and I
reserve the balance of my time.
Mr. CONYERS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I am very pleased to be here to support--well, I don't
think it is going to be support. It is really more in opposition to
this so-called Sunshine for Regulations and Regulatory Decrees and
Settlements Act.
Well, why? Well, because it is anticonsumer.
Well, why? Because it is antienvironment.
Well, why? Because it is antiprivacy.
Not surprisingly, a broad consortium of more than 150 organizations
strenuously oppose this bill, including some of our best nonprofits:
the National Resources Defense Council, for example; the Sierra Club,
for another example; Public Citizen; and a lot of labor organizations
and other groups.
Title I of this bill, for example, has one goal: it is to discourage
the use of settlement agreements and consent decrees that compel
agencies to follow the law.
When enacting new statutes, Congress routinely establishes deadlines
for agency action, particularly when it involves urgent public health
and safety concerns. When agencies fail to meet these deadlines, a
party with standing may file a lawsuit under section 7 of the
Administrative Procedure Act to ensure that the agency performs this
mandatory, nondiscretionary duty. By delaying the enforcement of
statutory deadlines, the bill, however, jeopardizes public health and
safety, which explains why the previous Obama administration issued a
veto threat to similar legislation considered only last Congress.
Title I imposes nearly impossible hurdles for agencies seeking to
resolve the deadline lawsuits and gives opponents of regulation
multiple opportunities to stifle agency regulatory actions.
With respect to consent decrees concerning a rulemaking, an agency
would be forced to go through two public comment periods--one for the
consent decree, and one for the rulemaking that results from the
consent decree--doubling the agency's effort. In addition, it would
allow any affected party to intervene in opposition to a proposed
settlement agreement or consent decree.
Contrary to the claims of those who support this measure, the
Government Accountability Office has found no evidence that these
deadline lawsuits are collusive. As the Justice Department, which
represents most Federal agencies, acknowledged earlier this year, these
agencies are left with few defenses, if any, to these lawsuits.
I am also concerned that H.R. 469 will inevitably generate more
litigation that will result in millions of dollars of additional
transactional costs, all of which will be borne by you know who--the
American taxpayer.
For example, the nonpartisan Congressional Budget Office, in its
analysis of the bill's predecessor from the last Congress, concluded:

The measure would impose millions of dollars in additional
costs, most of which would be incurred because the litigation
involving consent decrees and settlement agreements would
probably take longer under the bill, and agencies would face
additional administrative requirements.

That is a quotation. In other words, Title I of this bill is a costly
solution, again, in search of a problem.
Now, Title II of the bill isn't much better. For instance, Title II
overrides the Privacy Act to require publication of sensitive personal
information of victims of government abuse or unlawful conduct, which
raises serious privacy concerns.
Although proponents of this measure argue it will increase government
transparency, its real effect will be to force the Treasury Department
to publish, on the Internet, the names of individual victims of
government misconduct compensated for their claims by the Judgment
Fund, including victims of race and sex discrimination, and so, in
effect, revictimizing victims harmed by the Federal Government.
Finally, Title III would facilitate the ability of the House majority
to intervene in pending cases where the Justice Department has already
determined that it will not defend the constitutionality of a Federal
law.
Not only do these provisions raise possible separation of powers
concerns, it is unclear why they are even needed.
This measure has not ever been the subject of a single hearing or
markup by the Judiciary Committee of the House of Representatives. As a
result, there has not been any opportunity to consider these critical
issues and to analyze the ramifications presented by Title III.
For all of these reasons, I must, accordingly, urge my colleagues to
oppose H.R. 469.
Mr. Chairman, I reserve the balance of my time.
Mr. COLLINS of Georgia. Mr. Chairman, I appreciate the comments,
especially of my friend from Rhode Island. I would agree in principle
with the Meese amendment as well. The problem is that, through the
Clinton administration and through preceding administrations, it has
been watered

[[Page H8197]]

down. I would actually go back to that. The problem is lack of
transparency and the lack of a coherent voice here as we go further,
but I do appreciate the comments.
Mr. Chair, I yield 2 minutes to the gentleman from South Carolina
(Mr. Norman).
Mr. NORMAN. Mr. Chair, I rise today in overwhelming and adamant
support of H.R. 469, the Sunshine for Regulations and Regulatory
Decrees and Settlements Act, which will strengthen Article I powers for
Congress.
Let me begin by briefly quoting Article I, Section 8 of our
Constitution, the Necessary and Proper Clause: ``The Congress shall
have the power . . . to make all laws which shall be necessary and
proper for carrying into execution the foregoing powers . . . in the
government,'' meaning, Congress must continue to respect and reinforce
the idea of the separation of powers in our government, but, at the
same time, Congress can ultimately decide when, whether, and how to
legislate the powers and authority of another branch of government.

{time} 1645

Mr. Chairman, this piece of legislation will go a long way in
fortifying the balance of powers and reestablishing Congress' authority
set forth by James Madison and our Founding Fathers and Article I of
the United States Constitution.
Furthermore, we must be sure to use our constitutional authority to
effectively guarantee and ensure that government is more efficient,
transparent, and accountable to all American citizens of our great
Nation, and this bill will do just that.
It is time for Congress to establish procedures for honest
regulations, transparency within the Treasury Department, and judicial
intervention in unconstitutional court cases.
Mr. Chairman, again, I rise in full support of H.R. 469, and I urge
all of my colleagues on both sides of the aisle and in both Chambers to
make sure this is a government not only of the people, but for the
people.
Mr. CICILLINE. Mr. Chairman, I yield 4 minutes to the distinguished
gentleman from New York (Mr. Nadler).
Mr. NADLER. Mr. Chairman, I rise in strong opposition to H.R. 469,
the newly renamed Congressional Article I Power Strengthening Act.
This bill stitches together three unrelated bills, each one
problematic in its own way.
Title III of the bill, the Article I Amicus and Intervention Act,
would permit as a right the House to intervene as a party where an
amicus in a lawsuit with the Department of Justice declines to defend
the constitutionality of a law or regulation.
While this proposal may have some merit, it was introduced only last
week. It was the subject of no hearing. It has had no markup. We simply
do not know the full implications of the measure. If it is a worthy
proposal, we should take the time to consider it in committee before
moving forward.
Title II of the legislation, the Judgment Fund Transparency Act,
would require additional reporting about the funds paid out of the
Treasury Department's Judgment Fund by the United States Government to
resolve legal claims against it. This legislation raises significant
privacy concerns. It would require publishing sensitive, personally
identifying information about individual claimants who are the victims
of government misconduct, such as medical malpractice, racial
discrimination, or sexual harassment.
Our laws should carefully balance the need for public disclosure of
government spending with the need to protect the personal privacy of
individual citizens. This bill upsets that balance.
By far, the most concerning aspect of this legislation is Title I,
the Sunshine for Regulations and Regulatory Decrees and Settlements
Act.
This provision also poses as a transparency measure, but its real aim
is to disrupt and delay the process for issuing rules that protect
public health and safety.
Congress frequently sets a statutory deadline for an agency to
complete a rulemaking, but the agency sometimes misses that deadline.
Under current law, private parties can sue the agency to meet its
statutory obligations. Since there is little dispute that the agency
has failed to do its duty, these lawsuits often end up settling, with
the agency agreeing to a new schedule in which to complete the required
rulemaking. That is perfectly reasonable.
However, the Republican majority and the businesses that are the
subject of such regulation believe these lawsuits have some nefarious
purpose. They have concocted an imagined vast conspiracy by which
private parties collude with the government to file a lawsuit, and the
government happily either settles or enters into a consent decree,
supposedly allowing it to impose obligations or rules beyond what it
could otherwise do.
Unfortunately for supporters of this bill, there is no evidence of
such a conspiracy and no evidence, in fact, of any problem. To solve
this nonexistent problem, this bill adds numerous procedural
requirements before a settlement or consent degree can be entered into.
The effect of these requirements would be to make any settlements or
consent decrees more difficult and more time-consuming to enter into,
with the predictable result that agencies will not even bother to enter
into them at all.
Most troubling, the bill would create a special and more permissive
rule for virtually any party to involve itself in the case as an
intervener. These interveners would do their best to ruin, block, or
delay any settlement, including during what should be private
negotiations.
That, of course, is the true purpose of this bill. They seek to tie
government agencies up in years of litigation so that they are unable
to issue rules protecting public health and safety. The real conspiracy
here is the Republican plot to destroy the regulatory state. With one
hand, we defund the agencies; and with the other hand, we build all
sorts of hurdles in the regulatory process so that the agencies have no
ability to complete their work.
It is a shameful effort that may save big businesses some money and
regulatory compliance, but it will cost our citizens their health,
their safety, and possibly their lives.
Mr. Chairman, I urge my colleagues to oppose this terrible
legislation.
Mr. COLLINS of Georgia. Mr. Chairman, I don't believe, as was just
stated, that there is a nefarious plot here. It is to get government
doing the regulation it should with transparency--and that is what
needs to be done--and have Congress do what it should be doing, and
that is writing laws and having the regulatory process start from here.
That is simply what we are looking at. If that is too much, I
understand.
Mr. Chairman, I yield 5 minutes to the gentleman from Utah (Mr.
Stewart).
Mr. STEWART. Mr. Chairman, I would like to thank Mr. Collins and
Chairman Goodlatte for their work.
Mr. Chairman, I have to say, in listening to this debate, I can't
imagine why anyone would oppose this legislation that is entirely
designed to create transparency. This is good work that Chairman
Goodlatte and Mr. Collins have worked on.

Last week we heard a number of shocking stories about government
malfeasance, such as Chairman Goodlatte's investigation that the
government had settled and revealed that the Obama Justice Department
had funneled money to politically allied groups. We are grateful for
that.
Today we are taking up H.R. 469, and I am thrilled that this
legislation includes the text of my bill, the Judgment Fund
Transparency Act.
As I said, the purpose of this act is really very simple. Actually,
contrary to what has been said, it is to bring simplicity, it is to
bring transparency. This bill would go a long way to providing our
constituents and taxpayers a better idea of how their tax dollars are
spent.
Heaven knows, and for heaven's sake, those of us here certainly know
that sometimes the Federal Government makes mistakes. It is not
perfect. It is prone to errors and it can cause harm to individuals.
And when that happens, especially when these errors are particularly
egregious, the government is sued and damages can be awarded.
Early on, in fact, this Congress spent a lot of its time doing
nothing but that, sorting through claims and making appropriations to
pay those claims. In fact, not even 100 years ago, much of this body's
work was consumed only by

[[Page H8198]]

this topic. It wasn't until 1956 that Congress established the Judgment
Fund and gave authority to the Treasury Department to resolve these
claims in ``a permanent and indefinite appropriation.'' That has simply
been abused.
In keeping with the law, the Treasury Department files a yearly
report with Congress and maintains a web page that supposedly can be
searched. That sounds good, but it doesn't work that way. It is cryptic
and has otherwise limited information related to each payout that has
made the data almost entirely worthless. There is no information on
what the government did. There is no information on the claimant. We
are all familiar with, for example, when the previous administration
took $1.3 billion out of the fund and converted it to cash and
delivered it to Iran.
Four years ago, The New York Times reported what was likely an
illegal billion-dollar payout to farmers who had never even sued the
government. This isn't just unacceptable, it is crazy. It is horrible
government. It is what leads people to distrust the Federal Government.
It would require the Treasury to make payment out of this fund
public, and it would include very simple things that common sense would
simply demand.
This bill would name the agency. It would name the name of the
plaintiff and the amount that they were paid, then a brief description
of the facts around that claim.
Mr. Chairman, I will conclude by just saying the Judgment Fund
Transparency Act may not prevent bad decisions by all government
employees, but it will shine a light on decisions to the American
people. It is about helping to increase trust between the American
people and government, a government that we have given them reason not
to trust. Let's bring in accountability and transparency to that.
Mr. Chairman, I urge my colleagues to support this bill and the
language found within this bill.
Mr. CICILLINE. Mr. Chairman, I yield myself such time as I may
consume.
I just want to again remind folks that, during the course of this
argument, we have heard this narrative about the problems with the sue
and settle, as Mr. Nadler described it, an imagined, concocted vast
conspiracy, but without any evidence that it actually exists, a
solution in search of a problem.
Just to remind folks, there were two reports done by the GAO--I have
them in my hand; they are thick--that, in fact, undermine the
suggestion that there is any such problem.
In response to requests from the Republican committee chairs, the
Government Accountability Office has twice concluded that agencies
cannot and do not circumvent the rulemaking system through settlements
relating to statutory deadlines.
Finally, we received testimony earlier this year from Attorney
General Jeff Sessions' Justice Department that current agency policy,
which was codified in 1991, prohibits circumventing the rulemaking
process through deadline lawsuits. We have heard similar testimony from
career Justice Department officials in prior administrations.
I ask the question: How is H.R. 469 necessary in light of this
complete lack of support for this so-called sue and settle phenomenon
and the presence of controls against this from happening in the first
instance?
Mr. Chair, again, there is just no evidence to support the necessity
for this. I think it has been articulated very well by my colleagues
what the dangers are of moving forward with this legislation.
Mr. Chair, I reserve the balance of my time.
Mr. COLLINS of Georgia. Mr. Chairman, I yield 4 minutes to the
gentleman from Louisiana (Mr. Johnson), a member of the Judiciary
Committee.
Mr. JOHNSON of Louisiana. Mr. Chairman, I rise today to speak in
favor of H.R. 469, the Sunshine for Regulations and Regulatory Decrees
and Settlements Act.
This is an important piece of legislation because, as has been noted
here, it seeks to increase accountability on the regulatory process by
providing greater scrutiny of sue and settle cases. Yes, they do exist.
It requires the Department of Justice to release details of payments
made through the Judgment Fund, and it strengthens Congress' ability to
intervene on litigation regarding the constitutionality of
congressional statutes.
This legislation also includes H.R. 1096, the Judgment Fund
Transparency Act, which I am proud to cosponsor. That piece of
legislation includes an amendment I offered, which would require the
Secretary of the Treasury to clearly display the total
expenditures, including the attorney's fees, interest, and all other
payments made from the Judgment Fund on an annual basis.

Hardworking taxpayers deserve to know where their tax dollars are
being spent, and Congress must ensure that programs like the Judgment
Fund are following the law. The American people must be allowed every
available tool to keep their government accountable, and this will be
an important tool.
Also, it would ensure a terrorist organization is prohibited from
receiving any taxpayer funds from the Judgment Fund by prohibiting any
foreign terrorist organization, as defined in section 219 of the
Immigration and Nationality Act.
That statute clearly classifies a terrorist organization as those who
``engage in terrorist activity or terrorism, and the organization
threatens the security of the United States nationals or the national
security of the United States.''
These terrorist organizations only seek to commit serious harm or
potential targets, of course, including Americans, and I believe this
prohibition is warranted to be included in this important legislation.
Let me be clear. We should all agree that not a cent of taxpayer
dollars should ever go to a state sponsor of terrorism or foreign
terrorist organizations. A recent illustration of the need for this ban
on funding to state sponsors of terrorism is what we now know about the
previous administration. They paid $1.3 billion from the Judgment Fund
to the nation of Iran in a settlement dating back over 30 years.
Although all the information surrounding this payment was never made
clear to the public, Iran still remains a state sponsor of terrorism,
the most notorious one.
Mr. Chair, again, I strongly support H.R. 469. We must never allow
taxpayer dollars to be given to violent rogue nations that support
terrorists or, obviously, terrorist organizations, and this will ensure
a constitutional check on the Judgment Fund. This is about Article I,
the authority of this body. For that reason, Mr. Chairman, I strongly
support it, and I encourage our colleagues to do the same.
Mr. CICILLINE. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, I just want to say I am baffled by the gentleman from
Louisiana's assertion that this legislation improves accountability. It
is very hard to imagine how undermining the enforcement of duly enacted
legislation by Congress of the United States improves accountability.
This is like the upsidedown world. How does that improve
accountability, making it more difficult to enforce the laws passed by
Congress of the United States?
Mr. Chairman, I just want to say in closing that it is very important
to note that my opposition to H.R. 469 is joined by a very broad
spectrum of organizations, including the American Federation of Labor
and Congress of Industrial Organizations, or AFL-CIO; the American
Federation of State, County, and Municipal Employees; Public Citizen;
Consumer Federation of America; the National Consumer Law Center; the
Natural Resources Defense Council; the Sierra Club; Earthjustice; and
People for the American Way; among many others.
Mr. Chairman, I think that is company, which should suggest to my
colleagues that this legislation does not benefit the American people,
it will undermine the actions of Congress.
Mr. Chairman, I urge everyone to vote ``no,'' and I yield back the
balance of my time.

{time} 1700

Mr. COLLINS of Georgia. Mr. Chairman, I yield myself such time as I
may consume.
In closing, I just want to say that this is not just something that
has

[[Page H8199]]

been dreamed up, as far as from a bill perspective. And they can point
to studies that say this may or may not be a part, but even the outside
organization, the Environmental Council of the States, sent a letter
and basically did a resolution that said there is a need to reform
State participation in EPA consent decrees which settled through
citizen lawsuits. I mean, this is an issue because there is not the
transparency that is needed. That is why these bills are here.
I would just like to remind everyone why we are considering this bill
today, going back to where we first started, and why the House passed
the Stop Settlement Slush Funds Act and the Congressional Subpoena
Compliance and Enforcement Act earlier this week: to help restore and
reinforce the powers the people gave Congress in Article I of the
Constitution.
Restoring and reinforcing these powers is not some academic issue;
this is something that we practice every day. It goes back to as early
as our elementary school days dealing with our simple civics, saying
this is the way our government is set up.
I have said this before, Mr. Chairman, from this podium, and I will
say it again. If the people in agencies down the street would like to
make law, then I encourage them to leave their job, run for Congress,
and come up here and make law. This is not their job to do it from a
cubicle down the street through a lawsuit. We need to do it up here, as
it should be properly done.
So, for far too long, Congress has been giving away its power. We
want to see that change. We are going to see that. That is why this
bill is here. And although this bill alone is certainly not a silver
bullet for restoring the power the Congress has ceded, just as powers
are gradually lost over time, they will be regained by Congress
gradually reasserting itself.
I ask my colleagues to join me in support of this legislation to
reassert congressional authority and to ensure that individual liberty
protected by the powers of separation of powers between the branches is
maintained.
Mr. Chairman, I yield back the balance of my time.
Ms. JACKSON LEE. Mr. Speaker, I rise to express my strong opposition
to H.R. 469 the ``Sunshine for Regulatory Decrees and Settlements Act''
of 2017.
H.R. 469 is yet another attempt to undermine the ability of Federal
regulators to protect the health and safety of Americans.
This ill-conceived bill imposes numerous new procedural burdens on
agencies and courts intended to dissuade them from using consent
decrees and settlement agreements to resolve enforcement actions filed
to address agency noncompliance with the law.
H.R. 469 targets consent decrees and settlement agreements involving
congressionally mandated federal agency actions.
These agency actions in many instances have the purpose of protecting
civil rights, health, safety, and the environment.
H.R. 469 prescribes a host of burdensome--and, in some cases,
ambiguous--steps for courts and parties relating to such consent
decrees and settlements that would favor continued litigation over
settlement.
H.R. 469 establishes a prolonged process of publication,
intervention, and court-supervised mediation for these types of
settlements.
This prolonged process would waste judicial, individuals, and local
governments' resources, while wealthy corporations are empowered to
perpetuate violations of federal rules.
Such hurdles to settlements conflict directly with the expressly
stated and longstanding policy of the federal judiciary system to favor
compromise and the settlement of disputes in order to make the best use
of limited resources.
Proponents of this legislation argue that agencies and interest
groups collude to ``sue and settle'' to avoid compliance with the
procedures set forth in the Administrative Procedure Act.
These allegations are unfounded in fact.
The consent decrees and settlement agreements at issue do not
determine the substance of agency rules.
Rather, such agreements simply seek to enforce mandatory statutory
and procedural duties (such as deadlines enacted by Congress).
In fact, a December 2014 Government Accountability Office report
surveyed settlements over deadlines for major U.S. Environmental
Protection Act rulemakings and found that the settlements did not
influence the substantive results.
Furthermore, all public notice and comment requirements of the
Administrative Procedure Act and the individual laws at issue still
apply when an agency undertakes the substantive action for which a
deadline was missed.
Parties and non-parties alike are provided with numerous
opportunities to provide input in advance of the rules being finalized.
H.R. 469 undermines protections for the American people, masqueraded
as a measure to prevent undocumented and unfounded allegations of ``sue
and settle'' collusion between public interest plaintiffs and
sympathetic federal agencies entering into consent decrees and
settlements.
In fact, H.R. 469 favors industry interests at taxpayer expense and
promotes regulatory uncertainty by making it virtually impossible to
actually enter into consent decrees and settlements that avoid the
costly and time consuming alternative of litigation.
But its most serious flaw is that H.R. 469 is really a back door way
to derail the rulemaking process and undermine federal law, shifting
limited agency resources away from the implementation of health and
safety protections for the very people that we are supposed to be
representing.
What this bill truly targets are the legal rights of citizens to hold
government accountable by enforcing laws designed to protect health,
safety, and the environment, obligations that the supporters of this
bill would prefer to remain unenforced.
A broad coalition of more than 150 civil rights, environmental,
consumer protection and other public interest groups opposed the bill
in the last Congress.
On Monday, October 23, 2017, I received a letter signed by 86
environmental protection and civil rights groups urging me to oppose
this bill.
A bill that attempts to give third parties the power to obstruct and
delay the enforcement of federal law; which will harm plaintiff
corporations, state and local governments, nonprofit groups, and
individuals alike, when their interests have been harmed by illegal
federal agency actions or inactions.
Consent decrees and settlement agreements are simple, streamlined
ways to hold federal agencies accountable when they ignore Congress by
failing to commit congressionally mandated actions by a date
established in statute.
H.R. 469 is a sad attempt to eliminate vital and broadly supported
protections that have improved and saved millions of American lives.
By providing opportunities for industry to subvert or delay the
process of redressing injured groups, H.R. 469 effectively makes it
more expensive for agencies to do what Congress has mandated, that is
to protect the American people and redress any harm to their
livelihood.
Some of the unwholesomeness of this bill could have been mitigated
had the Jackson Lee amendment to H.R. 469 been made in order.
The Jackson Lee amendment would have excepted consent decrees or
settlement agreements that pertain to a reduction in illness or death
from exposure to toxic substances in communities that are protected by
Executive Order 12898.
Executive Order 12898 directs federal agencies to identify and
address the disproportionately high and adverse human health and
environmental effects of agency action on minority and low-income
populations.
It is impossible to understand why even conservative Republicans
would back legislation that hinders enforcement of the law, requires
agencies to waste money in court on cases they believe they cannot win,
and would stymie industry and state settlements along with all others.
I urge all members to vote against H.R. 469 and reject this harmful
legislation.
The Acting CHAIR (Mr. Mitchell). All time for general debate has
expired.
Pursuant to the rule, the bill shall be considered for amendment
under the 5-minute rule.
It shall be in order to consider as an original bill for the purpose
of amendment under the 5-minute rule an amendment in the nature of a
substitute consisting of the text of Rules Committee Print 115-34. That
amendment in the nature of a substitute shall be considered as read.
The text of the amendment in the nature of a substitute is as
follows:

H.R. 469

Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the
``Congressional Article I Powers Strengthening Act''.
(b) Table of Contents.--The table of contents of this Act
is as follows:

Sec. 1. Short title; table of contents.

TITLE I--SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND
SETTLEMENTS

Sec. 101. Short title.
Sec. 102. Definitions.
Sec. 103. Consent decree and settlement reform.
Sec. 104. Motions to modify consent decrees.
Sec. 105. Effective date.

[[Page H8200]]

TITLE II--JUDGMENT FUND TRANSPARENCY

Sec. 201. Short title.
Sec. 202. Judgment fund transparency.

TITLE III--ARTICLE I AMICUS AND INTERVENTION

Sec. 301. Short title.
Sec. 302. Congressional intervention as of right.
Sec. 303. Intervention and amicus authority for house of
representatives.

TITLE I--SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND
SETTLEMENTS

SEC. 101. SHORT TITLE.

This title may be cited as the ``Sunshine for Regulations
and Regulatory Decrees and Settlements Act of 2017''.

SEC. 102. DEFINITIONS.

In this title--
(1) the terms ``agency'' and ``agency action'' have the
meanings given those terms under section 551 of title 5,
United States Code;
(2) the term ``covered civil action'' means a civil
action--
(A) seeking to compel agency action;
(B) alleging that the agency is unlawfully withholding or
unreasonably delaying an agency action relating to a
regulatory action that would affect the rights of--
(i) private persons other than the person bringing the
action; or
(ii) a State, local, or tribal government; and
(C) brought under--
(i) chapter 7 of title 5, United States Code; or
(ii) any other statute authorizing such an action;
(3) the term ``covered consent decree'' means--
(A) a consent decree entered into in a covered civil
action; and
(B) any other consent decree that requires agency action
relating to a regulatory action that affects the rights of--
(i) private persons other than the person bringing the
action; or
(ii) a State, local, or tribal government;
(4) the term ``covered consent decree or settlement
agreement'' means a covered consent decree and a covered
settlement agreement; and
(5) the term ``covered settlement agreement'' means--
(A) a settlement agreement entered into in a covered civil
action; and
(B) any other settlement agreement that requires agency
action relating to a regulatory action that affects the
rights of--
(i) private persons other than the person bringing the
action; or
(ii) a State, local, or tribal government.

SEC. 103. CONSENT DECREE AND SETTLEMENT REFORM.

(a) Pleadings and Preliminary Matters.--
(1) In general.--In any covered civil action, the agency
against which the covered civil action is brought shall
publish the notice of intent to sue and the complaint in a
readily accessible manner, including by making the notice of
intent to sue and the complaint available online not later
than 15 days after receiving service of the notice of intent
to sue or complaint, respectively.
(2) Entry of a covered consent decree or settlement
agreement.--A party may not make a motion for entry of a
covered consent decree or to dismiss a civil action pursuant
to a covered settlement agreement until after the end of
proceedings in accordance with paragraph (1) and
subparagraphs (A) and (B) of paragraph (2) of subsection (d)
or subsection (d)(3)(A), whichever is later.
(b) Intervention.--
(1) Rebuttable presumption.--In considering a motion to
intervene in a covered civil action or a civil action in
which a covered consent decree or settlement agreement has
been proposed that is filed by a person who alleges that the
agency action in dispute would affect the person, the court
shall presume, subject to rebuttal, that the interests of the
person would not be represented adequately by the existing
parties to the action.
(2) State, local, and tribal governments.--In considering a
motion to intervene in a covered civil action or a civil
action in which a covered consent decree or settlement
agreement has been proposed that is filed by a State, local,
or tribal government, the court shall take due account of
whether the movant--
(A) administers jointly with an agency that is a defendant
in the action the statutory provisions that give rise to the
regulatory action to which the action relates; or
(B) administers an authority under State, local, or tribal
law that would be preempted by the regulatory action to which
the action relates.
(c) Settlement Negotiations.--Efforts to settle a covered
civil action or otherwise reach an agreement on a covered
consent decree or settlement agreement shall--
(1) be conducted pursuant to the mediation or alternative
dispute resolution program of the court or by a district
judge other than the presiding judge, magistrate judge, or
special master, as determined appropriate by the presiding
judge; and
(2) include any party that intervenes in the action.
(d) Publication of and Comment on Covered Consent Decrees
or Settlement Agreements.--
(1) In general.--Not later than 60 days before the date on
which a covered consent decree or settlement agreement is
filed with a court, the agency seeking to enter the covered
consent decree or settlement agreement shall publish in the
Federal Register and online--
(A) the proposed covered consent decree or settlement
agreement; and
(B) a statement providing--
(i) the statutory basis for the covered consent decree or
settlement agreement; and
(ii) a description of the terms of the covered consent
decree or settlement agreement, including whether it provides
for the award of attorneys' fees or costs and, if so, the
basis for including the award.
(2) Public comment.--
(A) In general.--An agency seeking to enter a covered
consent decree or settlement agreement shall accept public
comment during the period described in paragraph (1) on any
issue relating to the matters alleged in the complaint in the
applicable civil action or addressed or affected by the
proposed covered consent decree or settlement agreement.
(B) Response to comments.--An agency shall respond to any
comment received under subparagraph (A).
(C) Submissions to court.--When moving that the court enter
a proposed covered consent decree or settlement agreement or
for dismissal pursuant to a proposed covered consent decree
or settlement agreement, an agency shall--
(i) inform the court of the statutory basis for the
proposed covered consent decree or settlement agreement and
its terms;
(ii) submit to the court a summary of the comments received
under subparagraph (A) and the response of the agency to the
comments;
(iii) submit to the court a certified index of the
administrative record of the notice and comment proceeding;
and
(iv) make the administrative record described in clause
(iii) fully accessible to the court.
(D) Inclusion in record.--The court shall include in the
court record for a civil action the certified index of the
administrative record submitted by an agency under
subparagraph (C)(iii) and any documents listed in the index
which any party or amicus curiae appearing before the court
in the action submits to the court.
(3) Public hearings permitted.--
(A) In general.--After providing notice in the Federal
Register and online, an agency may hold a public hearing
regarding whether to enter into a proposed covered consent
decree or settlement agreement.
(B) Record.--If an agency holds a public hearing under
subparagraph (A)--
(i) the agency shall--

(I) submit to the court a summary of the proceedings;
(II) submit to the court a certified index of the hearing
record; and
(III) provide access to the hearing record to the court;
and

(ii) the full hearing record shall be included in the court
record.
(4) Mandatory deadlines.--If a proposed covered consent
decree or settlement agreement requires an agency action by a
date certain, the agency shall, when moving for entry of the
covered consent decree or settlement agreement or dismissal
based on the covered consent decree or settlement agreement,
inform the court of--
(A) any required regulatory action the agency has not taken
that the covered consent decree or settlement agreement does
not address;
(B) how the covered consent decree or settlement agreement,
if approved, would affect the discharge of the duties
described in subparagraph (A); and
(C) why the effects of the covered consent decree or
settlement agreement on the manner in which the agency
discharges its duties is in the public interest.
(e) Submission by the Government.--
(1) In general.--For any proposed covered consent decree or
settlement agreement that contains a term described in
paragraph (2), the Attorney General or, if the matter is
being litigated independently by an agency, the head of the
agency shall submit to the court a certification that the
Attorney General or head of the agency approves the proposed
covered consent decree or settlement agreement. The Attorney
General or head of the agency shall personally sign any
certification submitted under this paragraph.
(2) Terms.--A term described in this paragraph is--
(A) in the case of a covered consent decree, a term that--
(i) converts into a nondiscretionary duty a discretionary
authority of an agency to propose, promulgate, revise, or
amend regulations;
(ii) commits an agency to expend funds that have not been
appropriated and that have not been budgeted for the
regulatory action in question;
(iii) commits an agency to seek a particular appropriation
or budget authorization;
(iv) divests an agency of discretion committed to the
agency by statute or the Constitution of the United States,
without regard to whether the discretion was granted to
respond to changing circumstances, to make policy or
managerial choices, or to protect the rights of third
parties; or
(v) otherwise affords relief that the court could not enter
under its own authority upon a final judgment in the civil
action; or
(B) in the case of a covered settlement agreement, a term--
(i) that provides a remedy for a failure by the agency to
comply with the terms of the covered settlement agreement
other than the revival of the civil action resolved by the
covered settlement agreement; and
(ii) that--

(I) interferes with the authority of an agency to revise,
amend, or issue rules under the procedures set forth in
chapter 5 of title 5, United States Code, or any other
statute or Executive order prescribing rulemaking procedures
for a rulemaking that is the subject of the covered
settlement agreement;
(II) commits the agency to expend funds that have not been
appropriated and that have not been budgeted for the
regulatory action in question; or
(III) for such a covered settlement agreement that commits
the agency to exercise in a particular way discretion which
was committed to

[[Page H8201]]

the agency by statute or the Constitution of the United
States to respond to changing circumstances, to make policy
or managerial choices, or to protect the rights of third
parties.

(f) Review by Court.--
(1) Amicus.--A court considering a proposed covered consent
decree or settlement agreement shall presume, subject to
rebuttal, that it is proper to allow amicus participation
relating to the covered consent decree or settlement
agreement by any person who filed public comments or
participated in a public hearing on the covered consent
decree or settlement agreement under paragraph (2) or (3) of
subsection (d).
(2) Review of deadlines.--
(A) Proposed covered consent decrees.--For a proposed
covered consent decree, a court shall not approve the covered
consent decree unless the proposed covered consent decree
allows sufficient time and incorporates adequate procedures
for the agency to comply with chapter 5 of title 5, United
States Code, and other applicable statutes that govern
rulemaking and, unless contrary to the public interest, the
provisions of any Executive order that governs rulemaking.
(B) Proposed covered settlement agreements.--For a proposed
covered settlement agreement, a court shall ensure that the
covered settlement agreement allows sufficient time and
incorporates adequate procedures for the agency to comply
with chapter 5 of title 5, United States Code, and other
applicable statutes that govern rulemaking and, unless
contrary to the public interest, the provisions of any
Executive order that governs rulemaking.
(g) Annual Reports.--Each agency shall submit to Congress
an annual report that, for the year covered by the report,
includes--
(1) the number, identity, and content of covered civil
actions brought against and covered consent decrees or
settlement agreements entered against or into by the agency;
and
(2) a description of the statutory basis for--
(A) each covered consent decree or settlement agreement
entered against or into by the agency; and
(B) any award of attorneys fees or costs in a civil action
resolved by a covered consent decree or settlement agreement
entered against or into by the agency.

SEC. 104. MOTIONS TO MODIFY CONSENT DECREES.

If an agency moves a court to modify a covered consent
decree or settlement agreement and the basis of the motion is
that the terms of the covered consent decree or settlement
agreement are no longer fully in the public interest due to
the obligations of the agency to fulfill other duties or due
to changed facts and circumstances, the court shall review
the motion and the covered consent decree or settlement
agreement de novo.

SEC. 105. EFFECTIVE DATE.

This title shall apply to--
(1) any covered civil action filed on or after the date of
enactment of this title; and
(2) any covered consent decree or settlement agreement
proposed to a court on or after the date of enactment of this
title.

TITLE II--JUDGMENT FUND TRANSPARENCY

SEC. 201. SHORT TITLE.

This title may be cited as the ``Judgment Fund Transparency
Act of 2017''.

SEC. 202. JUDGMENT FUND TRANSPARENCY.

(a) Transparency Requirement.--Section 1304 of title 31,
United States Code, is amended by adding at the end the
following:
``(d)(1) Unless the disclosure of such information is
otherwise prohibited by law or court order, the Secretary of
the Treasury shall make available to the public on a website,
as soon as practicable, but not later than 30 days after the
date on which a payment under this section is tendered on or
after January 1, 2016, the following information with regard
to that payment:
``(A) The name of the specific agency or entity whose
actions gave rise to the claim or judgment.
``(B) The name of the plaintiff or claimant.
``(C) The name of counsel for the plaintiff or claimant.
``(D) The amount paid representing principal liability, and
any amounts paid representing any ancillary liability,
including attorney fees, costs, and interest.
``(E) A brief description of the facts that gave rise to
the claim.
``(F) The name of the agency that submitted the claim.
``(G) Any information available on reports generated by the
Judgment Fund Payment Search administered by the Treasury
Department.
``(2) In addition to the information described in paragraph
(1), if a payment under this section is made to a foreign
state on or after January 1, 2016, the Secretary of the
Treasury shall make available to the public in accordance
with paragraph (1), the following information with regard to
that payment:
``(A) A description of the method of payment.
``(B) A description of the currency denominations used for
the payment.
``(C) The name and location of each financial institution
owned or controlled, directly or indirectly, by a foreign
state or an agent of a foreign state through which the
payment passed or from which the payment was withdrawn,
including any financial institution owned or controlled,
directly or indirectly, by a foreign state or an agent of a
foreign state that is holding the payment as of the date on
which the information is made available.
``(3) Not later than January 1, 2018, and annually
thereafter, the Secretary of the Treasury shall make
available to the public on the website described in paragraph
(1)--
``(A) the total amount paid under this section during the
year preceding the date of the report; and
``(B) the amount paid under this section during the year
preceding the date of the report--
``(i) for attorney fees;
``(ii) for interest; and
``(iii) for all other payments.
``(4) In this subsection, the term `foreign state' has the
meaning given the term in section 1603 of title 28.
``(e) Except with regard to children under eighteen, the
disclosure of information required in this section shall not
be considered a `clearly unwarranted invasion of personal
privacy' for purposes of title 5, United States Code.
``(f) No payment may be made under this section to a state
sponsor of terrorism, as defined in section 1605A(h) of title
28, or to an organization that has been designated as a
foreign terrorist organization under section 219 of the
Immigration and Nationality Act (8 U.S.C. 1189).''.
(b) Implementation.--The Secretary of the Treasury shall
carry out the amendment made by this section by not later
than 60 days after the date of enactment of this title.

TITLE III--ARTICLE I AMICUS AND INTERVENTION

SEC. 301. SHORT TITLE.

This title may be cited as the ``Article I Amicus and
Intervention Act of 2017''.

SEC. 302. CONGRESSIONAL INTERVENTION AS OF RIGHT.

(a) Deadline for Report on Limitation on Enforcement of
Laws.--Paragraph (2) of section 530D(b) of title 28, United
States Code, is amended to read as follows:
``(2) under subsection (a)(1)(B), within such time as will
reasonably enable the House of Representatives and the Senate
to take action, separately or jointly, to intervene in a
timely fashion in the proceeding, but in no event--
``(A) later than 30 days after the making of each
determination; and
``(B) later than 21 days before any applicable deadline for
filing any pleading necessary--
``(i) to defend or assert the constitutionality of the
provision at issue; or
``(ii) to request review of any judicial, administrative,
or other determination adversely affecting the
constitutionality of such provision;''.
(b) Intervention as of Right.--Section 530D of title 28,
United States Code, is amended by adding at the end the
following:
``(f) Intervention as of Right.--The Senate or House of
Representatives may intervene as of right in any proceeding
referenced in subsection (a)(1)(B) in order to defend or
assert the constitutionality of any provision of any Federal
statute, rule, regulation, program, policy, or other law, or
to appeal or request review of any judicial, administrative,
or other determination adversely affecting the
constitutionality of any such provision. Notwithstanding any
otherwise applicable time limits or other provisions of law
to the contrary, if such intervention is filed not later than
21 days after receipt of the notice required by this section
the intervention shall be deemed timely and shall preserve
the right of the Senate or House of Representatives to
advance any applicable legal arguments in favor of the
constitutionality of any such provision.''.

SEC. 303. INTERVENTION AND AMICUS AUTHORITY FOR HOUSE OF
REPRESENTATIVES.

Section 101 of the Legislative Branch Appropriations Act,
2000 (2 U.S.C. 5571), is amended--
(1) by striking subsection (d); and
(2) by inserting after subsection (b) the following (and
redesignating succeeding subsections accordingly):
``(c) House of Representatives Intervention and Amicus
Authority.--
``(1) Actions or proceedings.--When directed to do so in
accordance with the Rules of the House of Representatives,
the General Counsel of the House of Representatives shall
intervene or appear as amicus curiae in the name of the
House, or in the name of an officer, committee, subcommittee,
or chair of a committee or subcommittee of the House, or
other entity of the House, in any legal action or proceeding
pending in any court of the United States or of a State or
political subdivision thereof.
``(2) Intervention or appearance as of right.--Intervention
as a party or appearance as amicus curiae shall be of right
and may be denied by a court only upon an express finding
that such intervention or appearance is untimely and would
significantly delay the pending action or, in the case of
intervention, that standing to intervene is required and has
not been established under section 2 of article III of the
Constitution of the United States.
``(3) Rule of construction.--Nothing in this section shall
be construed to confer standing on any party seeking to
bring, or jurisdiction on any court with respect to, any
civil or criminal action against Congress, either House of
Congress, a Member of Congress, a committee or subcommittee
of a House of Congress, any office or agency of Congress, or
any officer or employee of a House of Congress or any office
or agency of Congress.''.

The Acting CHAIR. No amendment to that amendment in the nature of a
substitute shall be in order except those printed in part A of House
Report 115-363 and the amendment designated in the order of the House
of October 24, 2017. Each such amendment may be offered only in the
order printed in the report, by a Member designated in the report,
shall be considered as read, shall be debatable for the time specified
in the report equally divided and controlled by the proponent and an
opponent, shall not be subject to amendment, and shall not be subject
to a demand for division of the question.

[[Page H8202]]

Amendment No. 1 Offered by Mr. Collins of Georgia

The Acting CHAIR. It is now in order to consider amendment No. 1
printed in part A of House Report 115-363.
Mr. COLLINS of Georgia. Mr. Chairman, I rise as the designee of
Chairman Goodlatte, and I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:

Page 16, line 2, insert after ``otherwise prohibited by
law'' the following: ``(other than section 552a of title 5,
United States Code)''.

The Acting CHAIR. Pursuant to House Resolution 577, the gentleman
from Georgia (Mr. Collins) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Georgia.
Mr. COLLINS of Georgia. Mr. Chairman, the Department of the
Treasury's interpretation of current law prohibits it from making
public the names of plaintiffs. My amendment clarifies that these
names, which this bill requires to be disclosed, will, in fact, be
disclosed.
In January 2016, it was reported that the United States agreed to pay
$1.7 billion to Iran in a settlement arising from an agreement to sell
military equipment to Iran prior to the 1979 Iranian Revolution. At the
time, it was known that $400 million in cash had been transferred to
Iran, but it was unclear, even after public inquiry, how the remaining
$1.3 billion had been paid.
On August 22, 2016, the New York Sun reported that, while conducting
an ongoing but fruitless search of ``Iran'' as a claimant in the
Treasury database, it found 13 payments totaling 13 cents less than
$1.3 billion, as well as an additional payment of just over $10
million. Without further context, however, the New York Sun could not
confirm whether these payments were, in fact, part of the settlement.
It was only after months of increased public scrutiny, long after the
money had been disbursed, that the previous administration acknowledges
that these payments were indeed part of the Iran settlement.
My amendment will ensure that the public knows about the conduct of
its government and the laws that are being faithfully executed and that
justice is being served. The information that this bill requires to be
disclosed, which, in many cases is already publicly available in court
documents, informs Congress and the public in new ways, particularly
with regard to systemic government abuse.
Furthermore, any concerns about the disclosure of the plaintiffs'
names are mitigated by the fact that this amendment does not foreclose
a court's ability to protect private information. Indeed, the
information required to be made public in title II will not be
disclosed if such disclosure is prohibited by a court order. Moreover,
Federal judges have ample discretion to allow a plaintiff to proceed
under the pseudonym as a ``Doe plaintiff'' or to seal and redact
intimate records.
My amendment is necessary to prevent future government abuse by
increasing the overall transparency of the Judgment Fund and, in turn,
increasing government accountability.
I urge my colleagues to support this important clarification, and I
reserve the balance of my time.
Mr. CICILLINE. Mr. Chairman, I seek time in opposition to the
amendment.
The Acting CHAIR. The gentleman from Rhode Island is recognized for 5
minutes.
Mr. CICILLINE. Mr. Chairman, I think it is very important to say at
the outset this is not about clarifying anything. This is about a major
change in policy.
This amendment will permit the publication of a victim's sensitive
information, such as the individual's name and case history, on the
internet. This overrides the Privacy Act.
So let's be clear about what this is. This is not a clarification.
This is a major change in policy.
This amendment will make a bad bill even worse. It specifies that the
Privacy Act does not prohibit the publication of a victim's sensitive
information, such as his or her name and case history.
Under current law, the Treasury Department cannot, for the purposes
of the Judgment Fund, publish the sensitive information of individuals
who are victims of government abuse or misconduct, such as a name or
case history. This is because the Privacy Act requires an individual's
consent prior to publishing their name or other sensitive information.
Although proponents of this amendment may claim that this information
is, in some instances, already publicly available, the Supreme Court
has recognized that a person's privacy interests and their personal
information collected in government records does not automatically
dissolve because such information may be available to the public
already in some other format. Individuals have the right to control the
dissemination of their own personal information. This amendment makes
it clear that the bill will infringe on an individual's personal
privacy if he or she is compensated from the Judgment Fund.
Moreover, this amendment does not further the public interest in
government transparency. Publishing an individual person's name on the
internet sheds no significant light on the inner workings of government
and has no value; and so, to the contrary, it will result in
potentially grave harassment or even intimidation.
Revealing this information is an unwarranted intrusion on personal
privacy of individuals harmed by government misconduct, which could
include victims of medical malpractice as well as racial and sexual
discrimination. In effect, it revictimizes the victims of government
misconduct or abuse--a terrible result.
So, therefore, I oppose this amendment which does not do anything to
improve the bill and, in fact, makes it considerably worse.
Mr. Chairman, I urge my colleagues to vote ``no'' on this amendment.
And if you vote for it, recognize that you will have to go home and
tell your constituents that you have agreed to a serious invasion of
their personal privacy and that it will allow individuals who are
victims of government misconduct to have that personal information put
on the internet and shared with millions of people all over the world.
I yield back the balance of my time.
Mr. COLLINS of Georgia. Mr. Chairman, you can also go home and tell
them, if they filed a suit, that it is already currently in the PACER
system, probably with more information than just that, or they could
have filed it under a pseudonym or had their lawyers have this
suppressed. This is an issue that is already out there; and as we look
at this, this is moving forward. So I would just ask that this
amendment be reported favorably.
I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Georgia (Mr. Collins).
The amendment was agreed to.

Amendment No. 2 Offered by Mr. Conyers

The Acting CHAIR. It is now in order to consider amendment No. 2 made
in order by the order of the House of October 24, 2017.
Mr. CONYERS. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:

An Amendment Offered in Lieu of Amendment No. 2 Printed in Part A of
House Report No. 115-363 Offered by Mr. Conyers of Michigan

The Acting CHAIR. Pursuant to House Resolution 577, the gentleman
from Michigan (Mr. Conyers) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Michigan.
Mr. CONYERS. Mr. Chairman, my amendment would exempt from H.R. 469
settlement agreements and consent decrees intended to prevent
discrimination based on race, religion, national origin, or other
protected category.
Given the often systemic nature of discriminatory conduct, settlement

[[Page H8203]]

agreements and consent decrees provide an invaluable means to provide
for general relief for non-identifiable victims and to prevent future
discriminatory acts.
In particular, they are instrumental in enforcing critical civil
rights protections in a wide variety of cases, including voting rights
violations and predatory lending practices based on race. Other
examples include the use of consent decrees by the Justice Department
to address unconstitutional police pattern or practice activities.
For example, in 2003, the City of Detroit entered into a consent
decree with the Justice Department concerning the inappropriate use of
force and arrest practices by the city's police department. As a result
of this decree, the police department implemented vastly improved
practices that have substantially reduced the incidence of fatalities
caused by law enforcement activities, a goal that the Judiciary
Committee Chairman Goodlatte and I very much endorse.
According to the department's civil rights division, these decrees
facilitate institutional reforms, such as improving systems for
supervising officers and holding them accountable for misconduct, as
well as ensuring officers have the policy guidance, training,
equipment, and other resources necessary for constitutional and
effective policing.
Unfortunately, H.R. 469 would make the use of such remedies
exceedingly difficult by subjecting them to numerous procedural and
potentially meritless court challenges.
A particularly concerning provision of this bill is its broad and
ill-defined authorization allowing virtually anyone to intervene with
respect to a proposed settlement agreement or consent decree.
For example, imagine a proposed settlement agreement intended to
restrict a city's school district from discriminating against Muslims.
Under the bill, any anti-Muslim or neo-Nazi organization could petition
the court to intervene for the purpose of opposing such agreement on
the ground that it ``would affect'' such person.
This is just one of the many fundamental problems presented by this
thoroughly flawed and, I think, harmful measure, and, so, accordingly,
I ask my colleagues here to join me in opposing H.R. 469.
Mr. Chairman, I reserve the balance of my time.
Mr. COLLINS of Georgia. Mr. Chairman, I claim the time in opposition.
The Acting CHAIR. The gentleman is recognized for 5 minutes.
Mr. COLLINS of Georgia. Mr. Chairman, with much respect for my
ranking member on my committee--we have served together; we have worked
on a lot of issues together, namely, the Police Working Group, and
other things, and his work has been very helpful in that regard--I do
have to oppose this amendment because, really, what this amendment does
is seek less transparency, public participation, and judicial review
for consent decrees and settlement agreements for regulations that
allegedly will help to protect civil rights.
With all due respect, I believe this has matters backwards. More
transparency, public input, and judicial scrutiny will only help to
produce regulations that better protect civil rights.
Further, since the bill promotes the participation of regulated
entities and State, local, and Tribal entities that may be affected by
or help to enforce the regulations, it will promote buy-in from these
groups. That will help the regulation to be better and more promptly
implemented and not held for years in litigation challenging the rules.
I would urge my colleagues to oppose this amendment, and I yield back
the balance of my time.

{time} 1715

Mr. CONYERS. Mr. Chairman, although H.R. 469 has many flaws, I am
particularly concerned that the bill's broad and ill-defined
requirements would effectively delay and possibly deter civil
enforcement agencies from providing general relief in discrimination
cases, discourage courts from enforcing these settlements, and also
invite costly and needless litigation.
In response to this problem, my amendment would simply exclude from
the bill's burdensome requirements settlement agreements and consent
decrees intended to remediate generalized harms in civil rights cases.
Mr. Chairman, this is a commonsense amendment, and I urge my
colleagues here to support it.
Mr. Chair, I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Michigan (Mr. Conyers).
The amendment was rejected.

Amendment No. 3 Offered by Mr. Johnson of Georgia

The Acting CHAIR. It is now in order to consider amendment No. 3
printed in part A of House Report 115-363.
Mr. JOHNSON of Georgia. I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:

Page 3, line 17, strike ``; and'' and insert ``, other than
an excepted consent decree or settlement agreement;''.
Page 4, line 4, strike the period and insert ``; and''.
Page 4, insert after line 4 the following:
(6) the term ``excepted consent decree or settlement
agreement'' means a covered consent decree or covered
settlement agreement pertaining to a deadline established by
Congress through the enactment of a Federal statute to--
(A) significantly improve access to affordable, high-speed
broadband internet in under-served markets, such as low-
income and rural communities; and
(B) facilitate economic development in locations without
sufficient access to such service.

The Acting CHAIR. Pursuant to House Resolution 577, the gentleman
from Georgia (Mr. Johnson) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Georgia.
Mr. JOHNSON of Georgia. Mr. Speaker, I rise to support my amendment
to H.R. 469, and to advocate for rural Georgians and Americans across
the country who don't have dependable access to broadband internet
services.
We are here today debating H.R. 469, a bill that would require
burdensome and unnecessary processes that would delay the enforcement
of Federal regulations. H.R. 469 undermines the ability of government
agencies to protect public health and safety by prohibiting them from
using consent decrees and settlements to enforce the law that we pass
by allowing private industry to intervene in opposition to regulations
that they deem unfavorable to them. It requires the publishing of the
personal data of those who bring complaints against the government,
thus deterring complaints.
My amendment would ensure that future actions taken by Congress to
increase broadband access in rural areas are not stymied by these
excessive regulatory burdens. My amendment would exempt any future
legislation, or any future rules that may be enacted to bring this
technology to underserved areas from the requirements put in place by
H.R. 469.
It shouldn't be groundbreaking news that, in many of our districts, a
gap exists between urban and rural communities insofar as broadband
connectivity is concerned. The Fourth District of Georgia has some
rural pockets that are facing this challenge today.
According to a study done by the Pew Research Center in 2016, rural
Americans are still 10 percentage points less likely than average
citizens to have broadband access at home. Although we have seen
improvements since the 16-point gap in 2007, we have much work to do to
ensure that all families have access to what is now a modern necessity.
My home State of Georgia ranks 21st in the Nation in terms of access
to 25 megabit per second broadband, according to a report put together
by the Georgia House and Senate Study Committee on High Speed Broadband
Communications Access for all Georgians. In rural counties where this
problem persists, we have seen local development stall without access
to telehealth services, educational materials, and other digital
resources.
Broadband connectivity brings with it countless learning
opportunities and exchanges of information that are not possible in
isolated communities without broadband. The issue of broadband access
is inextricably linked to the vitality of these rural areas, and it is
in our best interest as a Congress to give rural communities all of the
modern tools they need to succeed.

[[Page H8204]]

The FCC's 2016 Broadband Progress Report identified 24 million rural
Americans throughout the country who don't have a broadband
connection--24 million Americans whose access would be delayed even
further by the implementation of H.R. 469's elimination of consent
decrees.
I hope Congress can agree on the importance of achieving full
broadband access, and I hope that this amendment will begin removing
this hurdle that is being put in place by my friends on the other side
of the aisle who support business as opposed to people.
Mr. Chair, I urge my colleagues to join me in supporting this
commonsense amendment, and I reserve the balance of my time.
Mr. COLLINS of Georgia. Mr. Chair, I claim the time in opposition.
The Acting CHAIR. The gentleman is recognized for 5 minutes.
Mr. COLLINS of Georgia. I was just sitting here, Mr. Chairman, and I
am excited and welcome my friend from Georgia to the fight for
broadband. I have been leading on this fight now for several years,
especially in my district, which is rural, which has a company called
Windstream that does not provide for its citizens. I am excited to have
the acknowledgment that rural broadband is something that we need to be
fighting for.
My district has areas in which Windstream was supposed to use its
Connect America funds to widen its footprint on rural broadband.
Instead, they have shrunk it, only to compete in areas where they are
competing against other companies, and only widening it in areas where
they already had technology which they could have widened years before.
I think it is really interesting, and I am so glad about this because
it also gives me the opportunity to talk about the GO Act, the Gigabyte
Opportunity Act, which actually will provide real solutions into these
districts for broadband opportunity.
I would encourage my friends from Georgia and from Michigan, and
anybody else, to sign on to this bill. It is a good bill that has
support across the way in the Senate, and also working with the
administration to provide the way for States to actually look at their
own States and provide gigabyte opportunity zones so that they can
actually make ways and get these companies that are monopolizing the
areas and not serving their constituents.
By the way, Mr. Chairman, it is sad because, in some of my districts
right now, it has been over really about 6 weeks or so since Irma came
through northeast Georgia and knocked out power and delayed broadband,
and I still have customers in my district who do not have phone service
or broadband this long after that fact.
This is just unacceptable, so I appreciate the concern here. The only
problem is, this amendment doesn't help. This amendment is not one that
does--again, it just is another amendment, unfortunately, like the last
amendment, that seeks less transparency and public participation. It
does not do anything to discourage people from working to find rural
broadband solutions.
What this actually does, it just, again, tries to seek less
transparency instead of more. But I think there is a positive here. I
choose to look at the positive. I disagree with this amendment and
would ask that it be voted ``no.'' But I look at the positive to say,
as someone from Georgia, we have got a fight we can connect on, and
that is rural broadband, because there is no longer a digital divide.
There is a hope and dream divide. It is not a digital divide. It is a
hope and dream for those students, and those moms, and those dads, and
those families in those areas who cannot access the internet.

For me, it was a radio and a book. It took me all over the world.
Nowadays, it is the internet and a phone where our students can
actually get what they want. Unfortunately, this amendment doesn't do
it. I have to oppose this amendment, but I am glad to welcome to the
fight another friend against the evils of not being able to expand
broadband.
Mr. Chair, I yield back the balance of my time.
Mr. JOHNSON of Georgia. Mr. Chair, I just enjoyed the contrast
between our different styles. The Congressman, my friend from Georgia,
is very upbeat and passionate. I am more laid back and kind of
reserved. But we both agree on the fact that we want more broadband to
be accessible to rural customers. We both agree on that.
We just simply disagree on whether or not we should allow a process
whereby a third-party corporation can come in and gum up the regulatory
scheme that has been laid out in the rulings that have been made and,
thus, delay the availability of broadband to rural customers.
Mr. Chair, I would ask respectfully that my colleagues support my
amendment, and I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Georgia (Mr. Johnson).
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Mr. JOHNSON of Georgia. Mr. Chairman, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from Georgia will
be postponed.
The Committee will rise informally.
The Speaker pro tempore (Mr. Johnson of Louisiana) assumed the chair.

____________________