[Congressional Record (Bound Edition), Volume 145 (1999), Part 6]
[Senate]
[Pages 8017-8036]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. McCONNELL (for himself, Mr. Bennett, Mr. Conrad, and Mr. 
        Dorgan):
  S. 931. A bill to provide for the protection of the flag of the 
United States, and for other purposes; to the Committee on the 
Judiciary.


                      flag protection act of 1999

  Mr. McCONNELL. Mr. President, the American flag is our most precious 
national symbol and the Constitution is our most revered national 
document. They both represent the ideas, values and traditions that 
unify us as a people and a nation. Brave men and women have fought and 
given their lives in defense of the freedom and way of life that they 
both represent.
  Today, I am proud to introduce, along with my colleague from Utah, 
Senator Bennett, and my colleagues from North Dakota, Senator Conrad 
and Senator Dorgan, the Flag Protection Act of 1999. This legislation 
would ensure that acts of deliberately confrontational flag-burnings 
are punished with stiff fines and even jail time. My bill will help 
prevent desecration of the flag, and at the same time, protect the 
Constitution.
  Those malcontents who desecrate the flag do so to grab attention for 
themselves and to inflame the passions of patriotic Americans. And, 
speech that incites lawlessness or is intended to do so merits no First 
Amendment protection, as the Supreme Court has made abundantly clear. 
From Chaplinsky's ``fighting words'' doctrine in 1942 to Brandenburg's 
``incitement'' test in 1969 to Wisconsin v. Mitchell's ``physical 
assault'' standard in 1993, the Supreme Court has never protected 
speech which causes or intends to cause physical harm to others.
  And, that, Mr. President, is the basis for this legislation. My bill 
outlaws three types of illegal flag desecration. First, anyone who 
destroys or damages a U.S. flag with a clear intent to incite imminent 
violence or a breach of the peace may be punished by a fine of up to 
$100,000, or up to one year in jail, or both.
  Second, anyone who steals a flag that belongs to the United States 
and destroys or damages that flag may be fined up to $250,000 or 
imprisoned up to 2 years, or both.
  And third, anyone who steals a flag from U.S. property and destroys 
or damages that flag may also be fined up to $250,000 or imprisoned up 
to 2 years, or both.
  Some of my colleagues will argue that we've been down the statutory 
road before and the Supreme Court has rejected it. However, the 
Senate's previous statutory effort wasn't pegged to the well-
established Supreme Court precedents in this area.
  This bill differs from the statutes reviewed by the Supreme Court in 
the two leading cases: Texas v. Johnson, (1989) and U.S. v. Eichman, 
(1990).
  In Johnson, the defendant violated a Texas law banning the 
desecration of a venerated object, including the flag, in a way that 
will offend one or more persons. Johnson took a stolen flag and burned 
it as part of a political protest staged outside the 1984 Republican 
convention in Dallas. The state of Texas argued that its interest in 
enforcing the law centered on preventing breaches of the peace. But the 
government, according to the Supreme Court, may not ``assume every 
expression of a provocative idea will incite a riot. . . .'' Johnson, 
according to the Court, was prosecuted for the expression of his 
particular ideas: dissatisfaction with government policies. And it is a 
bedrock principle underlying the First Amendment, said the Court, that 
an individual cannot be punished for expressing an idea that offends.
  The Johnson decision started a national debate on flag-burning and as 
a result, Congress, in 1989, enacted the Flag Protection Act. In 
seeking to safeguard the flag as the symbol of our nation, Congress 
took a different tack from the Texas legislature. The federal statute 
simply outlawed the mutilation or other desecration of the flag.
  The Supreme Court, however, ruled in Eichman that the federal statute 
was unconstitutional. Specifically, the Court found that Congressional 
intent to protect the national symbol was insufficient to overcome the 
First Amendment protection for the expressive conduct exhibited by 
flag-burning.
  Notwithstanding these decisions, the Court clearly left the door open 
for outlawing flag-burning that incites lawlessness: ``the mere 
destruction or disfigurement of a particular physical manifestation of 
the symbol, without more, does not diminish or otherwise affect the 
symbol itself in any way.''
  But Mr. President, you don't have to take my word on it. The 
Congressional Research Service has offered legal opinions concluding 
that this initiative will withstand constitutional scrutiny:

       The judicial precedents establish that the [Flag Protection 
     and Free Speech Act], if enacted, while not reversing Johnson 
     and Eichman, should survive constitutional attack on First 
     Amendment grounds.

  In addition, Bruce Fein, a former official in the Reagan 
Administration and respected constitutional scholar, concurs:

       In holding flag desecration statutes unconstitutional in 
     Johnson, the Court cast no doubt on the continuing vitality 
     of Brandenburg and Chaplinsky as applied to expression 
     through use or abuse of the flag. [The Flag Protection and 
     Free Speech Act] falls well within the protective 
     constitutional umbrella of Brandenburg and Chaplinsky . . . 
     [and it] also avoids content-based discrimination which is 
     generally frowned on by the First Amendment.

  And several other constitutional specialists also agree that this 
initiative respects the First Amendment and will withstand 
constitutional challenge. A memo by Robert Peck, and Professors Robert 
O'Neil and Erwin Chemerinsky concludes that this legislation ``conforms 
to constitutional requirements in both its purpose and its 
provisions.''
  And, these same three respected men have looked at the few State 
court cases which have been decided since we had this debate 3 years 
ago and have reiterated their original finding of constitutionality. In 
a recent memo, they explained:

       Three years ago . . . [w]e expressed our strongly held 
     opinion that [the Flag Protection and Free Speech Act] would 
     be compatible with the U.S. Supreme Court's rulings in Texas 
     v. Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 
     496 U.S. 310 (1990). We write now to reiterate that position, 
     finding that nothing that has occurred in the interim casts 
     any doubt on our conclusion.

  Mr. President, I ask unanimous consent that the full text of these 
various memos be printed in the Record. And, I note that some of the 
memos refer to S. 982 in the 105th Congress and some

[[Page 8018]]

refer to S. 1335 in the 104th Congress. These bills, introduced in 
different sessions of Congress, are the same, and are both entitled the 
Flag Protection and Free Speech Act.

  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                       Bruce Fein,


                                              Attorney at Law,

                                Great Falls, VA, October 21, 1995.
     Senator Mitch McConnell,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator: This letter responds for your request for an 
     appraisal of the constitutionality of the proposed ``Flag 
     Protection and Free Speech Act of 1995.'' I believe it easily 
     passes constitutional muster with flying banners or guidons.
       The only non-frivolous constitutional question is raised by 
     section 3(a). It criminalizes the destruction or damaging of 
     the flag of the United States with the intent to provoke 
     imminent violence or a breach of the peace in circumstances 
     where the provocation is reasonably likely to succeed. In 
     Chaplinsky v. New Hampshire (1942), the Supreme Court upheld 
     the constitutionality of laws that prohibit expression 
     calculated and likely to cause a breach of the peace. Writing 
     for a unanimous Court, Justice Frank Murphy explained that 
     such ``fighting'' words ``are no essential part of any 
     exposition of ideas, and are of such slight social value as a 
     step to truth that any benefit that may be derived from them 
     is clearly outweighed by the social interest in order and 
     morality.''
       In Brandenburg v. Ohio (1969), the Court concluded that the 
     First Amendment is no bar to the punishment of expression 
     ``directed to inciting or producing imminent lawless action 
     and is likely to incite or produce such action.''
       In holding flag desecration statutes unconstitutional in 
     Texas v. Johnson (1989), the Court cast no doubt on the 
     continuing vitality of Brandenburg and Chaplinsky as applied 
     to expression through use or abuse of the flag. See 491 U.S. 
     at 409-410.
       Section 3(a) falls well within the protective 
     constitutional umbrella of Brandenburg and Chaplinsky. It 
     prohibits only expressive uses of the flag that constitute 
     ``fighting'' words or are otherwise intended to provoke 
     imminent violence and in circumstances where the provocation 
     is reasonably likely to occasion lawlessness. The section is 
     also sufficiently specific in defining ``flag of the United 
     States'' to avoid the vice of vagueness. The phrase is 
     defined to include any flag in any size and in a form 
     commonly displayed as a flag that would be perceived by the 
     reasonable observer to be a flag of the United States. The 
     definition is intended to prevent circumvention by 
     destruction or damage to virtual flag representations that 
     could be as provocative to an audience as mutilating the 
     genuine article. Any potential chilling effect on free speech 
     caused by inherent definitional vagueness, moreover, is 
     nonexistent because the only type of expression punished by 
     section 3(a) is that intended by the speaker to provoke 
     imminent lawlessness, not a thoughtful response. The First 
     Amendment was not intended to protect appeals to imminent 
     criminality.
       Section 3(a) also avoids content-based discrimination which 
     is generally frowned on by the First Amendment. It does not 
     punish based on a particular ideology or viewpoint of the 
     speaker. Rather, it punishes based on calculated provocations 
     of imminent violence through the destruction or damage of the 
     flag of the United States that are reasonably likely to 
     succeed irrespective of the content of the speaker's 
     expression. Such expressive neutrality is not 
     unconstitutional discrimination because the prohibition is 
     intended to safeguard the social interest in order, not to 
     suppress a particular idea. See F.C.C. v. Pacifica 
     Foundation, 438 U.S. 726, 744-746 (1978).
       I would welcome the opportunity to amplify on the 
     constitutionality of section 3(a) as your bill progresses 
     through the legislative process.
           Very truly yours,
     Bruce Fein.
                                  ____


                               Memorandum

     To: Interested Parties.
     From: Robert S. Peck, Esq. Robert M. O'Neil, Professor, 
         University of Virginia Law School and Director, Thomas 
         Jefferson Center for the Protection of Free Expression. 
         Erwin Chemerinsky, Sydney Irmas Professor of Law and 
         Political Science, University of Southern California.
     Re: S. 982, the Flag Protection and Free Speech Act of 1997.

       Three years ago, we offered our analysis of constitutional 
     issues raised by S. 1335, which has been reintroduced this 
     Congress as S. 982, the Flag Protection and Free Speech Act. 
     We expressed our strongly held opinion that such a statute 
     would be compatible with the First Amendment and not conflict 
     with the U.S. Supreme Court's rulings in Texas v. Johnson, 
     491 U.S. 397 (1989) and United States v. Eichman, 496 U.S. 
     310 (1990). We write now to reiterate that position, finding 
     that nothing that has occurred in the interim casts any doubt 
     on our conclusion.
       We observed in our earlier memorandum that the Eichman 
     Court expressly left open a number of options for flag-
     related laws, including the approach taken by then-S. 1335 
     (now S. 982). Moreover, we noted that, in R.A.V. v. City of 
     St. Paul, 505 U.S. 377, 385 (1992), the Court reiterated this 
     opening by indicating that flag burning could be punishable 
     under circumstances where dishonoring the flag did not 
     comprise the gist of the crime.
       S. 982 targets for punishment incitement to violence, which 
     has never been regarded as a constitutionally protected 
     activity. Some opponents of S. 982 have suggested that 
     several recent state court decisions raise questions about 
     our conclusions. They are mistaken. This memorandum will 
     supplement our earlier analysis by reviewing those cases. 
     Once again, we find that our earlier reasoning remains sound.
       The most recent of these state court decisions, and the 
     only one that was not available to us when we wrote our 
     earlier memorandum, is Wisconsin v. Janssen, 570 N.W. 2d 746 
     (Wis. App. 1997)., review granted, 215 Wis. 2d 421 (Wis. Nov. 
     20, 1997). This memorandum will also review the holdings in 
     Ohio v. Lessin, 620 N.E. 2d 72 (Ohio 1993), cert. denied, 510 
     U.S. 1194 (1994), and Texas v. Jimenez, 828 S.W. 2d 455 (Tex. 
     App.), cert. denied, 506 U.S. 917 (1992). In preparing our 
     original memorandum in 1995, we found these two cases 
     irrelevant to the constitutionality of S. 1335 (now S. 982). 
     Review of these cases, in fact, strengthens our conclusion 
     about the constitutional viability of S. 982 because these 
     courts recognized the same distinction between the protected 
     expression of disparaging views of the flag, and the 
     punishable conduct outlined in our earlier memorandum.
       In Janssen, a state statute made punishable as a crime both 
     contemptuous treatment of the American flag, as well as 
     conduct that did not contain expressive elements. A Wisconsin 
     Court of Appeals invalidated the statute that penalized 
     anyone who ``intentionally and publicly mutilates, defiles, 
     or casts contempt upon the flag . . .'' Such a statute, the 
     court said, improperly punishes contemptuous treatment of the 
     flag and impermissibly discriminates against a viewpoint, the 
     same flaw that the U.S. Supreme Court found in its original 
     flag burning decisions, Texas v. Johnson, 491 U.S. 397 (1989) 
     and United States v. Eichman, 496 U.S. 310 (1990). Thus, the 
     court found that the statute's broad language ``. . . clearly 
     encompasses acts that the United States Supreme Court has 
     deemed to be protected speech.'' The Wisconsin court did not 
     specifically examine the non-expressive portion of the 
     statute, which did not implicate First Amendment concerns, 
     finding that courts cannot rewrite statutes to bring them 
     into compliance with constitutional commands. The court's 
     treatment of the statute endorses the view that a statute 
     that eschews punishment for expressing a point of view by 
     mistreatment of the flag and instead focuses solely on 
     punishable non-expressive conduct will pass constitutional 
     muster. The far more precise language of S. 982 is carefully 
     designed to avoid punishing an expressed viewpoint. The 
     Janssen case thus has no bearing on S. 982.
       The Ohio Supreme Court's decision in Lessin also has no 
     impact on any analysis of S. 982. The Court did not overturn 
     the statute in question, which was a general incitement 
     statute, but instead reversed a conviction because of flawed 
     jury instructions. In fact, the Court indicated that a 
     conviction would be upheld if a jury convicted the accused on 
     the basis of a more ``accurate and thorough set of jury 
     instructions.'' The fatal flaw in the jury instructions was 
     that there was a failure to separate purely expressive 
     conduct from legitimately criminalized violence. Because of 
     that failure, the Court could not say whether the jury 
     convicted the defendant for contempt for the flag or 
     incitement. The Court said that the jury must be informed 
     that ``flag burning in the absence of a call to violence is 
     protected speech under the First Amendment.'' By the same 
     token, the Court's statement clearly indicates that burning 
     an American flag to incite violence is not protected by the 
     First Amendment. S. 982 properly punishes the use of the flag 
     to incite violence, and Lessin supports its 
     constitutionality.
       Finally, Jimenez invalidated a Texas law that a court of 
     appeals in that state found indistinguishable from the 
     federal law invalidated by the U.S. Supreme Court in Eichman. 
     Unlike S. 982, the Texas law did not require proof of direct 
     incitement to imminent lawless action. Instead, it still 
     targeted protected expression, though it contained no 
     viewpoint bias. While the Jimenez Court speculated that no 
     flag burning law could ever be constitutional, that question 
     was definitively answered otherwise, as we indicated in our 
     first memorandum, by the U.S. Supreme Court in R.A.V., a 
     decision issued several months after Jimenez. In R.A.V., the 
     Court said that flag burning that did not publish the message 
     or viewpoint of the flag burner, but concentrated solely on 
     the criminal conduct, would meet constitutional requirements.
       Opponents of S. 982 also argue that the fact that the 
     Supreme Court denied certiorari in Jimenez and Lessin shows 
     that the Court

[[Page 8019]]

     would likely find S. 982 unconstitutional. This argument is 
     flawed for two principal reasons. First, since the underlying 
     state decisions do not address the constitutionality of S. 
     982, or call into question the premises upon which its 
     validity rests, the Court's denial of certiorari in those 
     cases could not support the claim that the Court would 
     invalidate S. 982 on constitutional grounds.
       Second, the Supreme Court each year decides to review only 
     a tiny fraction of the several thousand appeals and petitions 
     that are filed. The Court is not a court of error, but rather 
     takes cases that require a national resolution, and it spoke 
     definitively to the flag burning issue in Johnson and 
     Eichman. Given that neither Jimenez nor Lessin raised novel 
     or undecided constitutional issues that required such a 
     national resolution, there was very little chance that the 
     Court would be interested in hearing these cases. As Justice 
     Stevens stated last year, ``it is well settled that our 
     decision to deny a petition for a writ of certiorari does not 
     in any sense constitute a ruling on the merits of the case in 
     which the writ is sought.'' Bethley v. Louisiana, 117 S. Ct. 
     2425 (1997) (statement of Stevens, J.); see also Maryland v. 
     Baltimore Radio Show, Inc., 228 U.S. 912, 919 (1950) (opinion 
     of Frankfurter, J., respecting denial of petition for writ of 
     cert.), U.S. v. Carver, 260 U.S. 482 (1923). The value of the 
     Jimenez and Lessin decisions, therefore, is in no way 
     enhanced by the Court's refusal of review.
       We conclude, on the basis of all relevant judicial 
     decisions, that S. 982 is constitutional.
                                  ____


                               Memorandum

     To: Interested Parties.
     From: Robert S. Peck, Esq. Robert M. O'Neil, Professor, 
         University of Virginia Law School Erwin Chemerinsky, 
         Legion Lex Professor of Law, University of Southern 
         California.
     Re: S. 1335, the Flag Protection and Free Speech Act of 1995.
     Date: November 7, 1995.

       This memorandum will analyze the constitutional 
     implications of S. 1335, the Flag Protection and Free Speech 
     Act of 1995. As its name implies and the legislation states 
     as its purpose, S. 1335 seeks ``to provide the maximum 
     protection against the use of the flag of the United States 
     to promote violence while respecting the liberties that it 
     symbolizes.'' S. 1335, 104th Cong., 1st Sess. Sec. 2(b) 
     (1995). This memorandum concludes that the bill conforms to 
     constitutional requirements in both its purpose and its 
     provisions.
       It would be a mistake to conclude that S. 1335 is 
     unconstitutional simply because the U.S. Supreme Court 
     invalidated the Flag Protection Act of 1990 in its decision 
     in United States v. Eichman, 496 U.S. 310 (1990). In this 
     decision, as well as its earlier flag-desecration opinion, 
     the Court specifically left open a number of options for 
     flag-related laws, including the approach undertaken by S. 
     1335. The Court reiterated its stand in its 1992 cross-
     burning case, indicating that flag burning could be 
     punishable under circumstances where dishonoring the flag did 
     not comprise the gist of the crime. R.A.V. v. City of St. 
     Paul, 112 S.Ct. 2538, 2544 (1992).
       Unlike the 1990 flag law that the Court negated, S. 1335 is 
     not aimed at suppressing non-violent political protest; in 
     fact, it fully acknowledges that constitutionally protected 
     right. In contrast, the Flag Protection Act, the Court said, 
     unconstitutionally attempted to reserve the use of the flag 
     as a symbol for governmentally approved expressive purposes. 
     S. 1335 makes no similar attempt to prohibit the use of the 
     flag to express certain points of view. Instead, it both 
     advances a legitimate anti-violent purpose while remaining 
     solicitous of our tradition of ``uninhibited, robust, and 
     wide-open'' public debate. New York Times v. Sullivan, 376 
     U.S. 254, 270 (1964).
       Moreover, the statute is sensitive to, and complies with, 
     several other constitutional considerations, namely: (1) it 
     does not discriminate between expression on the basis of its 
     content or viewpoint, since it avoids the kind of 
     discrimination condemned by the court in R.A.V.; (2) it does 
     not provide opponents of controversial political ideas with 
     an excuse to use their own propensity for violence as a means 
     of exercising a veto over otherwise protected speech, since 
     it requires that the defendant have a specific intent to 
     instigate a violent response; and (3) it does not usurp 
     authority vested in the states, since it does not intrude 
     upon police powers traditionally exercised by the states. 
     Each of these points will be discussed in greater detail 
     below.
       One additional point is worth noting. Passing a statute is 
     far preferable to enacting a constitutional amendment that 
     would mark the first time in its more than two centuries as a 
     beacon of freedom that the United States amended the Bill of 
     Rights. Totalitarian regimes fear freedom and enact broad 
     authorizations to pick and choose the freedoms they allow. 
     The broadly worded proposed constitutional amendment follows 
     that blueprint by giving plenary authority to the federal and 
     state governments to pick and choose which exercises of 
     freedom will be tolerated. On the contrary, American 
     democracy has never feared freedom, and no crisis exists that 
     should cause us to reconsider this path. Because the Court 
     has never said that Congress lacks the constitutional power 
     to enact a statute to prevent the flag from becoming a tool 
     of violence, a statute--rather than a constitutional 
     amendment--is an incomparably better choice.


I. S. 1335 Punishes Violence or Incitement to Violence, Not Expressive 
                                Conduct

       The fatal common flaw in the flag-desecration prosecution 
     of Gregory Lee Johnson, whose Supreme Court case started the 
     controversy that has led to the proposed constitutional 
     amendment, and the subsequent enactment by Congress of the 
     Flag Protection Act of 1989 was the focus on punishing 
     contemptuous views concerning the American flag. Eichman, 496 
     U.S. at 317-19; Texas v. Johnson, 491 U.S. 397, 405-07 
     (1989). In both instances, law was employed in an attempt to 
     reserve use of the flag for governmentally approved 
     viewpoints (i.e., patriotic purposes). The Court held such a 
     reservation violated bedrock First Amendment principles in 
     that the government has no power to ``ensure that a symbol be 
     used to express only one view of that symbol or its 
     referents.'' Id. at 417.
       Johnson had been charged with desecrating a venerated 
     object, rather than any of a number of other criminal charges 
     that he could have been prosecuted for and that would not 
     have raised any constitutional issues. Critical to the 
     Supreme Court's decision in his case, as well as to the Texas 
     courts that also held the conviction unconstitutional, was 
     the fact that ``[n]o one was physically injured or threatened 
     with injury.'' 491 U.S. at 399. The Texas Court of Criminal 
     Appeals noted that ``there was no breach of the peace nor 
     does the record reflect that the situation was potentially 
     explosive.'' Id. at 401 (quoting 755 S.W. 2d 92, 96 (1988)). 
     Thus, the primary concern addressed by S. 1335, incitement to 
     violence, was not at issue in the Johnson case. The Eichman 
     Court found the congressional statute to be indistinguishable 
     in its intent and purpose from the prosecution reviewed in 
     Johnson and thus also unconstitutional.
       In reaching its conclusion about the issue of 
     constitutionality, the Court, however, specifically declared 
     that ``[w]e do not suggest that the First Amendment forbids a 
     State to prevent, `imminent lawless action.' '' Id. at 410 
     (quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). In 
     Brandenburg, the Court said that government may not ``forbid 
     or proscribe advocacy of the use of force or of law violation 
     except where such advocacy is directed to inciting or 
     producing imminent lawless action and is likely to incite or 
     produce such action.'' 395 U.S. at 447. It went on to state 
     that ``[a] statute which fails to draw this distinction 
     impermissibly intrudes upon the freedoms guaranteed by the 
     First and Fourteenth Amendments. It sweeps within its 
     condemnation speech which our Constitution has immunized from 
     government control.'' Id. at 448.
       S. 1335 merely takes up the Court's invitation to focus a 
     proper law on ``imminent lawless action.'' It specifically 
     punishes ``[a]ny person who destroys or damages a flag of the 
     United States with the primary purpose and intent to incite 
     or produce imminent violence or a breach of the peace, and in 
     circumstances where the person knows it is reasonably likely 
     to produce imminent violence or a breach of the peace.'' S. 
     1335, at Sec. 3(a). The language precisely mirrors the 
     Court's Brandenburg criteria. It does not implicate the 
     Constitution's free-speech protections, because ``[t]he First 
     Amendment does not protect violence.'' NAACP v. Claiborne 
     Hardware Co., 458 U.S. 886, 916 (1982).
       More recently, the Court put it this way: ``a physical 
     assault is not by any stretch of the imagination expressive 
     conduct protected by the First Amendment.'' Wisconsin v. 
     Mitchell, 113 S. Ct. 2194, 2199 (1993). Under the Court's 
     criteria, for example, a symbolic protest that consists of 
     hanging the President in effigy is indeed protected symbolic 
     speech. Although hanging the actual President might convey 
     the same message of protest, a physical assault on the 
     nation's chief executive cannot be justified as 
     constitutionally protected expressive activity and could 
     constitutionally be singled out for specific punishment. S. 
     1335 makes this necessary distinction as well, protecting the 
     use of the flag to make a political statement, whether pro- 
     or anti-government, while imposing sanctions for its use to 
     incite a violent response.
       Courts and prosecutors are quite capable of discerning the 
     difference between protected speech and actionable conduct. 
     Federal law already makes a variety of threats of violence a 
     crime. Congress has, for example, targeted for criminal 
     sanction interference with commerce by threat or violence, 18 
     U.S.C. Sec. 1951, (1994), incitement to riot, 18 U.S.C. 
     Sec. 2101, tampering with consumer products, U.S.C. 
     Sec. 1365, and interfering with certain federally protected 
     activities. 18 U.S.C. Sec. 245. S. 1335 fits well within the 
     rubric that these laws have previously occupied. It cannot be 
     reasonably asserted that S. 1335 attempts to suppress 
     protected expression.


 II. S. 1335 Does Not Unconstitutionally Discriminate on the Basis of 
                          Content or Viewpoint

       The Supreme Court has repeatedly recognized that ``above 
     all else, the First Amendment means that government has no 
     power

[[Page 8020]]

     to restrict expression because of its message, its ideas, its 
     subject matter, or its content.'' Police Department v. 
     Mosley, 408 U.S. 92, 95 (1972). On this basis, the Court 
     recently invalidated a St. Paul, Minnesota ordinance that 
     purported to punish symbolic expression when it constituted 
     fighting words directed toward people because of their race, 
     color, creed, religion or gender. Fighting words is a 
     category of expression that the Court had previously held to 
     be outside the First Amendment's protections. Chaplinsky v. 
     New Hampshire, 315 U.S. 568, 571-72 (1942). In R.A.V. v. City 
     of St. Paul, 112 S. Ct. 2538, 2543 (1992), the Court gave 
     this statement greater nuance by stating that categories of 
     speech such as fighting words are not so entirely without 
     constitutional import ``that they may be made the vehicles 
     for content discrimination unrelated to their distinctively 
     proscribable content.'' Explaining this concept, the Court 
     gave an example involving libel: ``the government may 
     proscribe libel; but it may not make the further content 
     discrimination of proscribing only libel critical of the 
     government.'' Id.
       As a further example, the Court said a city council could 
     not enact an ordinance prohibiting only those legally obscene 
     works that contain criticism of the city government. Id. As 
     yet another example, the Court stated that ``burning a flag 
     in violation of an ordinance against outdoor fires could be 
     punishable, whereas burning a flag in violation of an 
     ordinance against dishonoring the flag is not.'' Id. at 2544. 
     The rationale behind this limitation, the Court explained, 
     was that government could not be vested with the power to 
     ``drive certain ideas or viewpoints from the marketplace.'' 
     Id. at 2545 (quoting Simon & Schuster, Inc. v. Members of the 
     N.Y. State Crime Victims Bd., 112 S.Ct. 501, 508 (1991)).
       No such danger exists under S. 1335. Both the patriotic 
     group that makes use of the flag to provoke a violent 
     response from dissenters and the protesters who use the flag 
     to provoke a violent response from loyalists are subject to 
     its provisions. A law that would only punish one or the other 
     perspective would have the kind of constitutional flaw 
     identified by the Court in R.A.V. Moreover, the legislation 
     recognizes, as the Supreme Court itself did (``the flag 
     occupies a ``deservedly cherished place in our community,'' 
     491 U.S. at 419) that the flag has a special status that 
     justifies its special attention. Similarly, the R.A.V. Court 
     noted that a law aimed at protecting the President against 
     threats of violence, even though it did not protect other 
     citizens, is constitutional because such threats ``have 
     special force when applied to the person of the President.'' 
     Id. at 2546. The rule against content discrimination, the 
     Court explained, is not a rule against content 
     discrimination, the Court explained, is not a rule against 
     under-inclusiveness. For example, ``a State may choose to 
     regulate price advertising in one industry but not in others, 
     because the risk of fraud is in its view greater there.'' Id. 
     (parenthetical and citation omitted).
       The federal law cited earlier that make certain types of 
     threats of violence into crimes are not thought to pose 
     content discrimination problems because they deal with only 
     limited kinds of threats. To give another example, federal 
     law also makes the use of a gun in the course of a crime 
     grounds for special additional punishment. See 18 U.S.C. 
     Sec. 924(c). In Brandenburg, the Court found that a Ku Klux 
     Klan rally at which guns were brandished and overthrow of the 
     government discussed remained protected free speech. Because 
     guns were used for expressive purposes in Brandenburg and 
     found to be beyond the law's reach there does not mean that 
     the law enhancing punishment because a gun is used during the 
     commission of a crime unlawfully infringes on any expressive 
     rights.
       The gun law makes the necessary constitutional distinctions 
     that the Court requires, and so does S. 1335's concentration 
     on crimes involving the American flag rather than protests 
     involving the flag. S. 1335 properly identifies in its 
     findings the reason for Congress to take special note of the 
     flag: ``it is a unique symbol of national unity.'' 
     Sec. 2(a)(1). It notes that ``destruction of the flag of the 
     United States can occur to incite a violent response rather 
     than make a political statement.'' Sec. 2(a)(4). As a result, 
     Congress has developed the necessary legislative facts to 
     justify such a particularized law.
       In its only post-R.A.V. decision on a hate-crimes statute, 
     the Court upheld a statute that enhanced the punishment of an 
     individual who ``intentionally selects'' his victim on the 
     basis of race, religion, color, disability, sexual 
     orientation, national origin or ancestry. Wisconsin v. 
     Mitchell, 113 S.Ct. 2194 (1993). A fair reading of the 
     Court's unanimous decision in that case supports the 
     conclusion that the Court would not strike down S. 1335 on 
     R.A.V. grounds. In Mitchell, the Court concluded that the 
     statute did not impermissibly punish the defendant's 
     ``abstract beliefs,'' id. at 2200 (citing Dawson v. Delaware, 
     122 S. Ct. 1093 (1992)), but instead spotlighted conduct that 
     had the potential to cause a physical harm that the State 
     could properly proscribe. S. 1335 similarly eschews 
     ideological or viewpoint discrimination to focus on the 
     intentional provocation of violence, a harm well within the 
     government's power to punish.


            iii. s. 1335 does not encourage a heckler's veto

       First Amendment doctrine does not permit the government to 
     use the excuse of a hostile audience to prevent the 
     expression of political ideas. Thus, the First Amendment will 
     not allow the government to give a heckler some sort of veto 
     against the expression of ideas that he or she finds 
     offensive. As a result, the Court has observed, ``in public 
     debate our own citizens must tolerate insulting, and even 
     outrageous, speech in order to provide `adequate breathing 
     space' to the freedoms protected by the First Amendment.'' 
     Boos v. Barry, 485 U.S. 312, 322 (1988). Any other approach 
     to free speech ``would lead to standardization of ideas 
     either by legislatures, courts, or dominant political or 
     community groups.'' Terminiello v. Chicago, 337 U.S. 1, 4 
     (1949). Thus, simply because some might be provoked and 
     respond violently to a march that expressed hatred of the 
     residents of a community, that is insufficient justification 
     to overcome the First Amendment's protection of ideas, no 
     matter how noxious they may be deemed. See, e.g., Collin v. 
     Smith, 578 F.2d 1197 (7th Cir.), cert. denied, 436 U.S. 953 
     (1978).
       The Supreme Court's flag-burning decisions applied this 
     principal. In Johnson, the state of Texas attempted to 
     counter the argument against its flag-desecration prosecution 
     by asserting an overriding governmental interest; it claimed 
     that the burning of a flag ``is necessarily likely to disturb 
     the peace and that the expression may be prohibited on this 
     basis.'' 491 U.S. at 408 (footnote omitted). The Court 
     rejected this argument on two grounds: (1) no evidence had 
     been submitted to indicate that there was an actual breach of 
     the peace, nor was evidence adduced that a breach of the 
     peace was one of Johnson's goals; Id. at 407, and (2) to hold 
     ``that every flag burning necessarily possesses [violent] 
     potential would be to eviscerate our holding in Brandenburg 
     [that the expression must be directed to and likely to incite 
     or produce violence to be subject to criminalization].'' Id. 
     at 409.
       S. 1335 avoids the problems that Texas had by requiring 
     that the defendant have ``the primary purpose and intent to 
     incite or produce imminent violence or a breach of the peace, 
     . . . in circumstances where the person knows it is 
     reasonably likely to produce imminent violence or a breach of 
     the peace.'' S. 1335, at Sec. (a)(a). If Texas had 
     demonstrated that Johnson had intended to breach the peace 
     and was likely to accomplish this goal, Johnson could have 
     been convicted of a crime for burning the U.S. flag. Texas, 
     however, never attempted to prove this.
       Moreover, S. 1335 does not enable hecklers to veto 
     expression by reacting violently because it requires that the 
     defendant have the specific intent to provoke that response, 
     while at the same time taking away any bias-motivated 
     discretion from law enforcers. The existence of a scienter 
     requirement and a likelihood element is critical to 
     distinguishing between a law that unconstitutionally punishes 
     a viewpoint because some people hate it and one that 
     legitimately punishes incitement to violence.


          iv. s. 1335 is consistent with federalism principles

       Earlier this year, the Supreme Court held that the Gun-Free 
     School Zones Act of 1990, 18 U.S.C. Sec. 922(q)(1)(a) 
     unconstitutionally exceeded the power of Congress to regulate 
     Commerce. Untied States v. Lopez, 63 U.S.L.W. 4343(1995). In 
     doing so, the Court reaffirmed the original principle that 
     ``the powers delegated by the [] Constitution to the federal 
     government are few and defined. Those which are to remain in 
     the State governments are numerous and indefinite.'' Id. at 
     4344 (quoting The Federalist No. 45, pp. 292-293 (C. Rossiter 
     ed. 1961) (James Madison)).
       S. 1335 respects these principles by directing its 
     sanctions only at preventing the use of the national flag to 
     incite violence, preventing someone from damaging an American 
     flag belonging to the United States, or damaging, on federal 
     land, an American flag stolen from another person. Each of 
     these acts have a clear federal nexus and remain properly 
     within the jurisdiction of the federal government. Moreover, 
     the bill concedes jurisdiction to the states wherever it may 
     properly be exercised. S. 1335, at Sec. 3(a)(d).


                             v. conclusion

       S. 1335 is carefully crafted to avoid constitutional 
     difficulties by being solicitous of federalism and freedom of 
     speech by focusing on incitement to violence. By doing so, it 
     meets all constitutional requirements.
                                  ____



                               Congressional Research Service,

                                 Washington, DC, October 23, 1995.
     To: Honorable Robert F. Bennett. Attention: Lisa Norton.
     From: American Law Division.
     Subject: Constitutionality of Flag Desecration Bill.
       This memorandum is in response to your request for a 
     constitutional evaluation of S. 1335, 104th Congress, a bill 
     to provide for the protection of the flag of the United 
     States and free speech and for other purposes.
       Briefly, the bill would criminalize the destruction or 
     damage of a United States flag

[[Page 8021]]

     under three circumstances. First, subsection (a) would 
     penalize such conduct when the person engaging in it does so 
     with the primary purpose and intent to incite or produce 
     imminent violence or a breach of the peace and in 
     circumstances where the person knows it is reasonably likely 
     to produce imminent violence or a breach of the peace.
       Second, subsection (b) would punish any person who steals 
     or knowingly converts to his or her use, or to the use of 
     another, a United States flag belonging to the United States 
     and who intentionally destroys or damages that flag. Third, 
     subsection (c) punishes any person who, within any lands 
     reserved for the use of the United States or under the 
     exclusive or concurrent jurisdiction of the United States, 
     steals or knowingly converts to his or her use, or to the use 
     of another, a flag of the United States belonging to another 
     person and who intentionally destroys or damages that flag.
       Of course, the bill is intended to protect the flag of the 
     United States in circumstances under which statutory 
     protection may be afforded. The obstacle to a general 
     prohibition of destruction of or damage to the flag is the 
     principle enunciated in United States v. Eichman, 496 U.S. 
     310 (1990), and Texas v. Johnson, 491 U.S. 397 (1989), that 
     flag desecration, usually through burning, is expressive 
     conduct if committed to ``send a message,'' and that the 
     Court would review limits on this conduct with exacting 
     scrutiny; legislation that proposed to penalize the conduct 
     in order to silence the message or out of disagreement with 
     the message violates the First Amendment speech clause.
       Rather clearly, subsections (b) and (c) would present no 
     constitutional difficulties, based on judicial precedents, 
     either facially or as applied. The Court has been plain that 
     one may not exercise expressive conduct or symbolic speech 
     with or upon the property of others or by trespass upon the 
     property of another Eichman, supra, 496 U.S., 316 n. 5; 
     Johnson, supra, 412 n. 8; Spence v. Washington, 418 U.S. 405, 
     408-409 (1974). See also R. A. V. v. City of St. Paul, 112 
     S.Ct. 2538 (1992) (cross burning on another's property). The 
     subsections are directed precisely to the theft or conversion 
     of a flag belonging to someone else, the government or a 
     private party, and the destruction of or damage to that flag.
       Almost as evident from the Supreme Court's precedents, 
     subsection (a) is quite likely to pass constitutional muster. 
     The provision's language is drawn from the ``fighting words'' 
     doctrine of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 
     That case defined a variety of expression that was 
     unprotected by the First Amendment, among the categories 
     being speech that inflicts injury or tends to incite 
     immediate violence. Id., 572. While the Court over the years 
     has modified the other categories listed in Chaplinsky, it 
     has not departed from the holding that the ``fighting words'' 
     exception continues to exist. It has, of course, laid down 
     some governing principles, which are reflected in the 
     subsection's language.
       Thus, the Court has applied to ``fighting words'' the 
     principle of Brandenburg v. Ohio, 395 U.S. 444 (1969), under 
     which speech advocating unlawful action may be punished only 
     if it directed to inciting or producing imminent lawless 
     action and is likely to incite or produce such action. Id., 
     447. This development is spelled out in Cohen v. California, 
     403 U.S. 15, 20, 22-23 (1971). See also NAACP v. Claiborne 
     Hardware Co., 458 U.S. 886, 928 (1982); Hess v. Indiana, 414 
     U.S. 105 (1973).
       A second principle, enunciated in an opinion demonstrating 
     the continuing vitality of the ``fighting words'' doctrine, 
     is that it is impermissible to punish only those ``fighting 
     words'' of which government disapproves. Government may not 
     distinguish between classes of ``fighting words'' on an 
     ideological basis. R. A. V. v. City of St. Paul, 112 S.Ct. 
     2538 (1992).
       Subsection (a) is drafted in a manner to reflect both these 
     principles. It requires not only that the conduct be 
     reasonably likely to produce imminent violence or breach of 
     the peace, but that the person intend to bring about imminent 
     violence or breach of the peace. Further, nothing in the 
     subsection draws a distinction between approved or 
     disapproved expression that is communicated by the action 
     committed with or on the flag.
       In conclusion, the judicial precedents establish that the 
     bill, if enacted, would survive constitutional attack. 
     Subsections (b) and (c) are more securely grounded in 
     constitutional law, but subsection (a) is only a little less 
     anchored in decisional law.
       Because of time constraints, this memorandum is necessarily 
     brief. If, however, you desire a more generous treatment, 
     please do not hesitate to get in touch with us.

                                            Johnny H. Killian,

                                                Senior Specialist,
                                      American Constitutional Law.

  Mr. McCONNELL. I urge the Senate to pass this legislation and protect 
our Nation's most cherished symbol and our most revered document.
  Mr. President, I ask unanimous consent that the bill in its entirety 
be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 931

       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 ``Flag Protection Act of 
     1999''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds that--
       (1) the flag of the United States is a unique symbol of 
     national unity and represents the values of liberty, justice, 
     and equality that make this Nation an example of freedom 
     unmatched throughout the world;
       (2) the Bill of Rights is a guarantee of those freedoms and 
     should not be amended in a manner that could be interpreted 
     to restrict freedom, a course that is regularly resorted to 
     by authoritarian governments which fear freedom and not by 
     free and democratic nations;
       (3) abuse of the flag of the United States causes more than 
     pain and distress to the overwhelming majority of the 
     American people and may amount to fighting words or a direct 
     threat to the physical and emotional well-being of 
     individuals at whom the threat is targeted; and
       (4) destruction of the flag of the United States can be 
     intended to incite a violent response rather than make a 
     political statement and such conduct is outside the 
     protections afforded by the first amendment to the 
     Constitution.
       (b) Purpose.--The purpose of this Act is to provide the 
     maximum protection against the use of the flag of the United 
     States to promote violence while respecting the liberties 
     that it symbolizes.

     SEC. 3. PROTECTION OF THE FLAG OF THE UNITED STATES AGAINST 
                   USE FOR PROMOTING VIOLENCE.

       (a) In General.--Section 700 of title 18, United States 
     Code, is amended to read as follows:

     ``Sec. 700. Incitement; damage or destruction of property 
       involving the flag of the United States

       ``(a) Definition of Flag of the United States.--In this 
     section, the term `flag of the United States' means any flag 
     of the United States, or any part thereof, made of any 
     substance, in any size, in a form that is commonly displayed 
     as a flag and that would be taken to be a flag by the 
     reasonable observer.
       ``(b) Actions Promoting Violence.--Any person who destroys 
     or damages a flag of the United States with the primary 
     purpose and intent to incite or produce imminent violence or 
     a breach of the peace, and under circumstances in which the 
     person knows that it is reasonably likely to produce imminent 
     violence or a breach of the peace, shall be fined not more 
     than $100,000, imprisoned not more than 1 year, or both.
       ``(c) Damaging a Flag Belonging to the United States.--Any 
     person who steals or knowingly converts to his or her use, or 
     to the use of another, a flag of the United States belonging 
     to the United States, and who intentionally destroys or 
     damages that flag, shall be fined not more than $250,000 
     imprisoned not more than 2 years, or both.
       ``(d) Damaging a Flag of Another on Federal Land.--Any 
     person who, within any lands reserved for the use of the 
     United States, or under the exclusive or concurrent 
     jurisdiction of the United States, steals or knowingly 
     converts to his or her use, or to the use of another, a flag 
     of the United States belonging to another person, and who 
     intentionally destroys or damages that flag, shall be fined 
     not more than $250,000, imprisoned not more than 2 years, or 
     both.
       ``(e) Construction.--Nothing in this section shall be 
     construed to indicate an intent on the part of Congress to 
     deprive any State, territory, or possession of the United 
     States, or the Commonwealth of Puerto Rico of jurisdiction 
     over any offense over which it would have jurisdiction in the 
     absence of this section.''.
       (b) Clerical Amendment.--The analysis for chapter 33 of 
     title 18, United States Code, is amended by striking the item 
     relating to section 700 and inserting the following:

``700. Incitement; damage or destruction of property involving the flag 
              of the United States.''.

  Mr. McCONNELL. Mr. President, I yield the floor.
  Mr. CONRAD addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. Mr. President, I rise today as an original cosponsor of 
the bipartisan Flag Protection Act of 1999. I salute its author, 
Senator McConnell of Kentucky.
  I believe every Member of this body abhors acts of desecration 
against the flag. Burning a flag, or otherwise dishonoring this symbol 
of freedom, is repugnant to me, to my colleagues, and to the vast 
majority of American citizens. I believe we should protect the flag 
from the acts of those few who would dishonor it.
  But the question is, How do we do it? Mr. President, we have 
previously

[[Page 8022]]

passed a statute to protect the flag but that was overturned by the 
U.S. Supreme Court as unconstitutional.
  Some now say the only alternative is to pass a constitutional 
amendment. After considerable study and review, I have concluded that 
is not the case. There is an alternative, and the alternative is the 
legislation that we offer today, the Flag Protection Act of 1999. It is 
a statute. It is not a constitutional amendment. It will protect the 
flag, and I believe it will be upheld as constitutional.
  We have a clear responsibility to exhaust all other options before we 
take the very serious step of amending the Constitution of the United 
States. Every one of us in the Senate pledges on our first day in this 
Chamber to uphold, protect, and defend the Constitution of the United 
States. Amending that time-honored, time-tested document is among the 
most serious of our duties--a step we have taken only rarely in the 
long history of our country.
  The Constitution is the foundation of our Government. I believe it is 
one of the greatest documents in human history. Its freedoms are the 
source of our strength as a nation--and a model of freedom to the 
world.
  Mr. President, the Founding Fathers wisely made it very difficult to 
amend the Constitution. They knew that a process that would allow for 
easy amendment of the Constitution could destabilize our country, that 
it could undermine the stability we have enjoyed through our long 
history. The Constitution has been amended only 27 times in 200 years, 
although many more attempts have been made.
  Those 27 amendments, beginning with the Bill of Rights, were the 
result of fundamental debates about the nature of our society, and who 
we would be as a nation. Freedom of religion, freedom of the press, 
freedom to assemble peacefully, the right to a trial by jury, the right 
to vote--these amendments address rights so basic we almost take them 
for granted today. Yet, some of them at the time of adoption provoked 
serious debate and division, division so deep they threatened to split 
the country.
  Mr. President, I hesitate to launch this Nation on an undertaking of 
such magnitude and divisiveness. When there is an alternative--and 
there is an alternative--I believe we can protect the flag without 
amending the Constitution. I believe we can propose and pass a statute 
that will protect the flag against burning and other acts of 
desecration, and I believe that statute will be upheld as 
constitutional.
  That is why today I am joining this bipartisan effort with my 
colleagues, Senator McConnell of Kentucky, Senator Dorgan of North 
Dakota, and Senator Bennett of Utah, to introduce the Flag Protection 
Act of 1999. This statute provides for maximum protection for the flag 
while respecting the liberties it symbolizes. We have been assured by 
experts at the Congressional Research Service and by constitutional 
scholars that it will be upheld by the courts.
  When it comes to amending the Constitution, I am conservative. I feel 
strongly that the flag can and should be protected. But before we take 
the step of amending the Constitution of the United States, we should 
exhaust every other remedy. Today we have introduced a statutory 
remedy. I ask my colleagues to join me in approving this law to protect 
the flag and the Constitution.
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter from the AMVETS of North Dakota. The AMVETS, in a letter to 
me, dated September 29, 1998, have endorsed this approach. I also ask 
unanimous consent to have printed in the Record the specific provision 
that they adopted at their convention supporting the approach that we 
are taking today.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                           AMVETS,


                                   Department of North Dakota,

                                    Fargo, ND, September 29, 1998.
     Hon. Kent Conrad,
     U.S. Senate,
     Washington, DC.
       Dear Senator Conrad: I am sure your are hearing both sides 
     of the issue concerning SJR-40. During our May 1998 
     Department convention in West Fargo, our membership passed an 
     amended resolution to petition congress to work towards 
     legislation to prevent U.S. Flag Desecration. Enclosed is a 
     copy of the passed resolution S98-14. During the convention 
     you addressed our membership and stated you felt this was a 
     viable and defensible alternative to a proposed 
     Constitutional amendment. At our State Executive Committee 
     meeting Wahpeton, ND, on September 26, 1998, the SEC voted to 
     continue pursuing this goal.
       Thank you for your time and consideration of this matter.
                                              Randall A. LeKander,
     Department Commander.
                                  ____


                          Resolution S. 98-14


                         u.s. flag desecration

       Whereas although the right of free expression is part of 
     the foundation of the Constitution of the United States, very 
     carefully drawn limits on expression, in specific instances, 
     have long been recognized as legitimate means of maintaining 
     public safety and defining other societal standards, and
       Whereas certain actions, although arguably related to a 
     person's free expression, nevertheless raise issues 
     concerning public decency, public space, and the rights of 
     other citizens, and
       Whereas the United States flag is a most honorable and 
     worthy banner of a nation which is thankful for its strengths 
     and committed to curing its faults, a nation that remains the 
     destination of millions of immigrants attracted by the 
     universal power of the American ideal, and
       Whereas the law, as interpreted by the United States 
     Supreme Court, no longer accords the Stars and Stripes the 
     reverence, respect and dignity befitting a banner of that 
     most noble experiment of a nation-state, and
       Whereas it is only fitting the Americans everywhere should 
     lend their voices to a forceful call for restoration of the 
     Stars and Stripes to a proper station under law and decency; 
     now therefore, be it
       Resolved, That AMVETS petition Congress to work towards 
     legislation which specifies that Congress shall have the 
     power to prohibit physical desecration of the United States 
     flag.

  Mr. CONRAD. Mr. President, I would also like to read briefly from a 
letter I received from a constituent in North Dakota. He wrote to me 
the following:

       As a third generation military officer, I cannot support an 
     amendment to the Constitution with respect to the flag. I 
     have many compelling reasons to ask that you not support this 
     amendment. My sworn duty as an officer in the United States 
     Air Force to uphold and defend the Constitution of the United 
     States lies at the heart of my opposition. This amendment 
     will weaken the Constitution and open the door for more 
     frivolous amendments in the future. I cannot stand by and let 
     this happen without raising my voice.

  He went on to say:

       Of the gallant Americans who fought and died in the service 
     of our country within the last 200 years, I tell you this: 
     They did not die defending the flag. They died defending our 
     freedom and the ideals upon which our country was founded. 
     Don't cheapen their sacrifice by supporting this misguided 
     amendment.

  Mr. President, a third letter that I received was from a man also 
from North Dakota. He wrote me this:

       On my mother's side, my great-grandfather came to the 
     United States from Bohemia and fought in the Union Army. On 
     my father's side, my great-grandmother lost her two oldest 
     sons, Iowa soldiers, at the Siege of Vicksburg. And members 
     of my family have represented the United States in every war 
     since. I am a Korean War combat veteran.

  He went on to say:

       The flag is strong enough to take care of itself. But if 
     these flag protectors are sincere about its protection, then 
     strong legislation is the safest way to go.

  Mr. President, that is what we are offering today on a bipartisan 
basis--four Senators; two Democrats, two Republicans--offering the Flag 
Protection Act of 1999. We believe this is the appropriate way to 
protect the flag.
  Mr. President, I yield the floor.
  Mr. DORGAN addressed the Chair.
  The PRESIDING OFFICER (Mr. Burns). The Senator from North Dakota.
  Mr. DORGAN. Mr. President, I rise today as a cosponsor of the 
legislation that my colleagues, Senator McConnell, Senator Bennett, 
Senator Conrad and I have jointly introduced--a piece of legislation 
called the Flag Protection Act.
  This, at its roots, is about the Constitution. Some will say the 
Constitution is an easy issue.
  A decade ago, the U.S. Supreme Court struck down a Texas statute, a 
statute which provided criminal sanctions for the burning of an 
American

[[Page 8023]]

flag. The Supreme Court said, no, the desecration of a flag is an 
expression of speech. That fellow in Texas had a constitutional right 
to do that. That was a 5-4 decision of the Supreme Court. I disagreed 
with that decision. I think the Supreme Court was wrong. But 
immediately--and for 10 years--there was an effort to amend the 
Constitution to overturn the Supreme Court's decision and allow a 
statute to be deemed constitutional that would prohibit the desecration 
of the American flag.
  I have voted on two occasions against a constitutional amendment to 
prohibit flag desecration. Those who say it is an easy vote say it is 
just an amendment amending the Constitution. Let's just do it and 
protect the flag.
  It might be easy for them; it is not easy for me.
  Then there are those who say we should never amend the Constitution, 
that you have a right to desecrate the flag. They too say this is an 
easy choice. Let's just make that choice.
  This decision has been just as difficult. I have agonized about this 
issue.
  There are many, many Americans, over many, many years, who have shed 
their blood to nurture this country's liberties and freedoms. The 
burning of an American flag is a disgusting act, one that I personally 
do not think is protected under the first amendment of the 
Constitution.
  The question is, however, what do you do to remedy this situation? Do 
you amend the Constitution, or is there a way to craft a statute saying 
flag desecration is wrong in a manner that the Supreme Court would say, 
yes, this statute will meet the test?
  I believe there is. I have believed all along there is. I pledged to 
some folks back in my home State that I would review this, reanalyze it 
again. I have done that over and over. I have read everything that has 
been written by virtually all of the scholars on both sides of this 
issue. I conclude, once again, that our country is better served by 
reserving our attempts to alter the U.S. Constitution for those things 
that are extraordinary occasions, as one of the authors of the 
Constitution, James Madison discussed. Then the Constitution should be 
amended only in circumstances when it is the only remedy.
  Some 12 or 13 years ago, I went to Philadelphia in the summertime for 
the 200th birthday of the writing of the U.S. Constitution. I have told 
my colleagues this before, but I want to say it again, because it 
describes how I feel for the Constitution.
  Two hundred years previously, 55 white men marched into the assembly 
room in Independence Hall, a room that is substantially smaller than 
this Chamber. Those 55 men wrote a Constitution for this country. 
Walking down the cobbled streets of Philadelphia, someone asked 
Benjamin Franklin, one of the 55, what they were doing. He said, we are 
writing a Constitution, if you can keep it.
  Two hundred years after the writing of that Constitution, 55 of us 
were privileged to go back into the very same room. The chair where 
George Washington presided still sits in the front of the room. Mason 
sat over here, Madison, Ben Franklin. I was one of the 55 chosen, men, 
women, minorities. I come from a town of 300 people, a high school 
class of 9. I got goose bumps sitting in this room where they wrote the 
Constitution of the United States. I have never forgotten that day, 
thinking that I am in the room where the historic figures of our 
country created the framework for governance in our country.
  That day is always etched in my memory when we debate the questions 
of whether we should amend the Constitution of the United States.
  There have been 11,000 proposals to change America's Constitution. 
Outside of the first 10, the Bill of Rights, only 17 amendments have 
changed our Constitution in the more than two centuries of history in 
this country.
  Now we have a proposal during these past 10 years to change the 
Constitution. Is it a serious proposal about a serious issue? Yes, it 
is. Our flag is important. So is our Constitution. It seems to me, as I 
said, our country is better served if there is a way to address the 
issue of flag desecration by passing a statute that will meet the test 
of the Supreme Court, to do that rather than alter our U.S. 
Constitution.
  The piece of legislation we have introduced today has been reviewed 
by a number of constitutional experts, the Congressional Research 
Service and elsewhere, and they indicate they feel it does meet the 
test. It would be upheld by the Supreme Court.
  To be able to enact a statute of this type and avoid altering the 
Constitution makes eminent good sense to me. I think future generations 
and our Founding Fathers would agree that it is worth the effort for us 
to find a way to protect our flag without having to wonder about the 
unintended consequences of altering this significant area of our 
Constitution that guarantees and preserves important rights for the 
citizens of our country.
  Mr. President, I know that many who have invested a great amount of 
time and effort to enact a constitutional amendment will be sorely 
disappointed by my decision and, perhaps, Senator Conrad's decision and 
others, to not support a constitutional amendment on flag desecration. 
I know they are impatient to correct a decision by the Supreme Court 
that they and I believe was wrong.
  I have wrestled with this issue for so long. I wish I were not, with 
my decision, disappointing so many, including some of my friends who 
passionately believe we must amend the Constitution to protect the 
flag. But as I sift through all of the material and think about the 
history of our country and think about this constitutional framework of 
our government and all of the appetite that exists here and elsewhere 
to change this Constitution for 100 different reasons and 100 different 
ways, I think our country is better served by patience and by a 
thoughtful effort to correct a problem short of altering our country's 
Constitution.
  For that reason, I join my colleagues today, two Republicans and two 
Democrats, to offer a piece of legislation that would serve, instead of 
altering our Constitution, as an effort to protect our American flag.
  Mr. President, I ask that my written statement be printed in the 
Record.
 Mr. DORGAN. Mr. President, 10 years ago the U.S. Supreme Court 
in a 5-4 decision struck down a Texas flag protection statute on the 
grounds that burning an American flag was ``speech'' and therefore 
protected under the First Amendment of the Constitution. I disagreed 
with the Court's decision then and I still do. I don't believe that the 
act of desecrating a flag is an act of speech. I believe that our flag, 
as our national symbol, can and should be protected by law.
  In the intervening years since the Supreme Court decision I have 
twice supported federal legislation that would make flag desecration 
illegal, and on two occasions I voted against amendments to the 
Constitution to do the same. I voted that way because, while I believe 
that flag desecration is despicable conduct that should be prohibited 
by law, I also believe that amending our Constitution is a step that 
should be taken only rarely and then only as a last resort.
  In the past year I have once again reviewed in detail nearly all of 
the legal opinions and written materials published by Constitutional 
scholars and courts on all sides of this issue. I pledged to the 
supporters of the Constitutional amendment that I would re-evaluate 
whether a Constitutional amendment is necessary to resolve this issue.
  From my review I have concluded that there remains a way to protect 
our flag without having to alter the Constitution of the United States. 
I am joining with Senators Bennett, McConnell and Conrad today to 
introduce legislation that I believe accomplishes that goal. The bill 
we introduce today protects the flag but does so without altering the 
Constitution and a number of respected Constitutional scholars tell us 
they believe this type of statute will be upheld by the U.S. Supreme 
Court. This statute protects the flag by criminalizing flag desecration 
when the purpose is to, and the person doing it knows, it is likely to 
lead to violence.

[[Page 8024]]

  Supporters of a Constitutional amendment will be disappointed I know 
by my decision to support this statutory remedy to protect the flag 
rather than support an amendment to the U.S. Constitution. I know they 
are impatient to correct a decision by the Supreme Court that they and 
I believe was wrong. I have wrestled with this issue for so long and I 
wish I were not, with my decision, disappointing those, including many 
of my friends, who passionately believe that we must amend the 
Constitution to protect the flag.
  But in the end I know that our country will be better served 
reserving our attempts to alter the Constitution only for those things 
that are ``extraordinary occasions'' as outlined by President James 
Madison, one of the authors of the Constitution, and only in 
circumstances when it is the only remedy for something that must be 
done.
  More than 11,000 Constitutional amendments have been proposed since 
our Constitution was ratified. However, since the ratification of the 
Bill of Rights in 1791 only 17 amendments have been enacted. These 17 
include three reconstruction era amendments that abolished slavery, and 
gave African-Americans the right to vote. The amendments included 
giving women the right to vote, limiting Presidents to two terms, and 
establishing an order of succession in case of a President's death or 
departure from office. The last time Congress considered and passed a 
new Constitutional amendment was when it changed the voting age to 18, 
more than a quarter of a century ago. All of these matters were of such 
scope they required a Constitutional amendment to be accomplished.
  But protecting the American flag can be accomplished without amending 
the Constitution, and that is a critically important point.
  Constitutional scholars, including those at the Congressional 
Research Service, the research arm of Congress, and Duke University's 
Professor William Alstyne, have concluded that this statute passes 
Constitutional muster, because it recognizes that the same standard 
that already applies to other forms of speech applies to burning the 
flag as well. This is the same standard which makes it illegal to 
falsely cry ``fire'' in a crowded theater. Reckless speech that is 
likely to cause violence is not protected under the ``fighting words'' 
standard, long recognized by the Supreme Court of the United States.
  I believe that future generations--and our founding fathers--would 
agree that it's worth the effort for us to find a way to protect our 
flag without having to wonder about the unintended consequences of 
altering our Constitution.
  Mr. President, I yield the floor.
      By Mr. CAMPBELL:
  S. 932. A bill to prevent Federal agencies from pursuing policies of 
unjustifiable nonacquiescence in, and relitigation of, precedent 
established in the Federal judicial courts; to the Committee on the 
Judiciary.


             federal bureaucracy accountability act of 1999

  Mr. CAMPBELL. Mr. President, today I introduce the Federal 
Bureaucracy Accountability Act of 1999.
  This legislation is clearly needed because when federal bureaucracies 
are faced with a decision between enforcing their rules and regulations 
or complying with our nation's laws they all to often choose to ignore 
the law and follow their rules. These bureaucracies can get away with 
ignoring laws passed by Congress, signed into law and then interpreted 
by our federal courts because of a technical, legal loophole. 
Bureaucracies ought not ignore our laws and courts simply because they 
may find it easier and more convenient to stick with their familiar 
rules and regulations rather than changing their ways and complying 
with the law. And when these bureaucracies choose to ignore the law it 
is almost always average Americans who end up suffering.
  There are thousands of stories of Americans who have been wrongfully 
denied their rightful benefits because some federal agency refuses to 
follow the legal decisions reached by our federal courts. In these 
situations ordinary American citizens must comply with the law, but 
federal agencies may simply choose to ignore that same law whenever 
they may so choose. This is not equal justice under the law.
  Our Founding Fathers envisioned a justice system in which everyone is 
required to obey the laws as they are interpreted and enforced through 
our courts. When there are disagreements appeals can be made to higher 
courts. But otherwise, when the courts have spoken, we all must obey 
the law or face the consequences, as it was intended.
  Currently, if a federal court in one jurisdiction rules against a 
federal agency's rule, that same federal agency can continue to follow 
that same rule in other jurisdictions, even if it is to the detriment 
of the American citizens they are purportedly serving. This needlessly 
leads to years of costly legal wrangling while also compounding the 
pain and suffering American citizens endure as they try to secure the 
same services other Americans are already receiving in neighboring 
jurisdictions.
  Some of the more egregious actions are seen in the Social Security 
Administration, the federal agencies running Medicare and Medicaid, the 
Bureau of Land Management, and the Internal Revenue Service.
  In legal terms, this bill would prevent federal agencies from 
pursuing policies of unjustifiable nonacquiesence with, or the 
relitigation of, judicial precedents as established through the federal 
courts.
  This legislation is a revised version of S. 1166, a bill I introduced 
in the 105th Congress. The bill I am introducing today contains 
perfecting language reflecting the valuable input I received during a 
June 15, 1998, Senate Judiciary Subcommittee on Administrative 
Oversight and the Courts hearing on S. 1166.
  During that hearing, a fellow Coloradan, Lynn Conforti, testified 
about how her claims for disability benefits were repeatedly denied by 
the Social Security Administration, not on the basis of existing law, 
but on the basis of bureaucratic policies. Her testimony highlighted 
how her physical suffering was compounded by severe financial troubles 
and mental anguish as a result of her 32-month struggle with the Social 
Security Administration. This was her return for 27 years of 
contributing to Social Security. Ms. Conforti hopes to be able to 
return to work in the future, but she still requires access to the 
resources she needs to continue her rehabilitation efforts. Finally, 
Ms. Conforti was awarded her disability benefits by an Administrative 
Law Judge in an on the record determination.
  Ms. Conforti's story is just one sad example of how agencies too 
often fail to help the very people whose need is real. Thousands of 
other Americans go through similar experiences each year. Something 
clearly must be done to ensure that federal agencies comply with 
federal law.
  There are important organizations that also make it clear that 
something needs to be done. The Judicial Conference of the United 
States, chaired by Supreme Court Chief Justice William Rehnquist, 
serves as the Federal Judiciary's governing body. The Judicial 
Conference has identified federal agency nonacquiesence as a policy 
that undermines legal certainty and the fair application of the law. 
The American Bar Association has also strongly recommended that 
Congress pass legislation to stop federal agencies from disregarding 
federal judicial decisions. In addition, organizations such as the 
National Multiple Sclerosis Society and the Diabetes Research Institute 
also came out in support of last year's bill, S. 1166.
  It's time we made sure federal agencies comply with the law. I urge 
my colleagues to support passage of this legislation.
  Mr. President, I ask unanimous consent that a copy of the Federal 
Bureaucracy Accountability Act of 1999 be printed in the Record 
following my comments.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 932

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

[[Page 8025]]



     SECTION 1. PROHIBITING INTRACIRCUIT AGENCY NON-ACQUIESCENCE 
                   IN APPELLATE PRECEDENT.

       (a) Short Title.--This Act may be cited as the ``Federal 
     Bureaucracy Accountability Act of 1999''.
       (b) In General.--Chapter 7 of title 5, United States Code, 
     is amended by adding at the end the following:

     ``Sec. 707. Adherence to court of appeals precedent

       ``(a) Except as provided in subsection (b), an agency (as 
     defined in section 701(b)(1) of this title) shall in civil 
     cases, in administering a statute, rule, regulation, program, 
     or policy within a judicial circuit, adhere to the existing 
     precedent respecting the interpretation and application of 
     such statute, rule, regulation, program, or policy, as 
     established by the decisions of the United States court of 
     appeals for that circuit. All officers and employees of an 
     agency, including administrative law judges, shall adhere to 
     such precedent.
       ``(b) An agency is not precluded under subsection (a) from 
     taking a position, either in administrative or litigation, 
     that is at variance with precedent established by a United 
     States court of appeals if--
       ``(1) it is not certain whether the administration of the 
     statute, rule, regulation, program, or policy will be subject 
     to review exclusively by the court of appeals that 
     established that precedent or a court of appeals for another 
     circuit;
       ``(2) the Government did not seek further review of the 
     case in which that precedent was first established, in that 
     court of appeals or the United States Supreme Court, 
     because--
       ``(A) neither the United States nor any agency or officer 
     thereof was a party to the case; or
       ``(B) the decision establishing that precedent was 
     otherwise substantially favorable to the Government; or
       ``(3) it is reasonable to question the continued validity 
     of that precedent in light of a subsequent decision of that 
     court of appeals or the United States Supreme Court, a 
     subsequent change in any pertinent statute or regulation, or 
     any other subsequent change in the public policy or 
     circumstances on which that precedent was based.''.
       (c) Clerical Amendment.--The table of sections for chapter 
     7 of title 5, United States Code, is amended by adding at the 
     end the following new item:

``707. Adherence to court of appeals precedent.''.

      By Mr. MURKOWSKI (for himself and Mr. Stevens):
  S. 933. A bill to amend the Internal Revenue Code of 1986 to clarify 
the tax treatment of Settlement Trusts established pursuant to the 
Alaska Native Claims Settlement Act; to the Committee on Finance.


             Alaska Native Settlement Trust Tax Legislation

  Mr. MURKOWSKI. Mr. President, I am pleased to be joined by Senator 
Stevens in introducing legislation that will allow Alaska Native 
Corporations to establish settlement trusts designed to promote the 
health, education, welfare and cultural heritage of Alaska Natives.
  Mr. President, in 1987, the Alaska Native Claims Settlement Act was 
amended to permit Native Corporations to establish settlement trusts to 
hold lands and investments for the benefit of current and future 
generations of Alaska Natives. Assets in these trusts are insulated 
from business exposure and risks and can be invested to provide 
distributions of income to Native shareholders and their future 
generations.
  Although the 1987 amendments were designed to facilitate the 
development of settlement trusts, many Native Corporations have been 
stymied in their efforts because the tax law, in many cases, imposes 
onerous penalties on the Native shareholders when the trusts are 
created. For example, when assets are transferred to the trust, they 
are treated as a de facto distribution of assets directly to the 
shareholders themselves to the extent of the corporation's earnings and 
profits.
  Even though the current shareholders receive no actual income at the 
time of the transfer into the trust, they are liable for income taxes 
as if they received an actual distribution. This not only requires the 
shareholder to come up with money to pay taxes on a distribution he or 
she never received, but also can result in a situation where a trust 
fund beneficiary is required to prepay taxes on his share of the entire 
trust corpus, which may be substantially more in taxes than the amount 
of cash benefits he or she will actually receive in the future.
  Our legislation remedies this inequity by requiring that a 
beneficiary of a settlement trust will be subject to taxation with 
respect to assets conveyed to the trust only when the actual 
distribution is received by the beneficiary. Moreover, the legislation 
provides that distributions from the trust will be taxable as ordinary 
income even if the distribution represents a return of capital. In 
addition, to ensure that these trusts do not accumulate excessive 
levels of the corporation's earnings, the legislation requires that the 
trust must annually distribute at least 55 percent of their taxable 
income.
  Mr. President, Alaska Native Corporations are unique entities. Unlike 
Native American tribes in the lower 48, Alaska Native corporations are 
subject to income tax. But unlike ordinary C corporations, Alaska 
Native corporations have diverse purposes, one of which is to preserve 
and protect the heritage of the Native shareholders. The settlement 
trust concept is well suited to the special needs of Alaska's Natives. 
As the Conference Committee Report to ANSCA amendments of 1987 stated:

       Trust distributions may be used to fight poverty, provide 
     food, shelter and clothing and served comparable economic 
     welfare purposes. Additionally, cash distributions of trust 
     income may be made on an across-the-board basis to the 
     beneficiary population as part of the economic welfare 
     function.

  Settlement trusts will ensure that for generations to come, Native 
Alaskans will have a steady stream of income on which to continue 
building an economic base. The current tax rules discourage the 
creation of such trusts with the result that Native corporations are 
under extreme pressure to distribute all current earnings rather than 
prudently reinvesting for the future.
  Mr. President, it is my hope that we will be able to see this 
legislation adopted into law this year. For the long-term benefit of 
Alaska Natives, this tax law change is fundamentally necessary.
  Mr. President, I ask unanimous consent that the text of the 
legislation be included in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 933

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

     SECTION 1. TAX TREATMENT OF ALASKA NATIVE SETTLEMENT TRUSTS.

       (a) Tax Exemption.--Section 501(c) of the Internal Revenue 
     Code of 1986 is amended by adding at the end the following 
     new paragraph:
       ``(28) A trust which--
       ``(A) constitutes a Settlement Trust under section 39 of 
     the Alaska Native Claims Settlement Act (43 U.S.C. 1629e), 
     and
       ``(B) with respect to which an election under subsection 
     (p)(2) is in effect.''
       (b) Special Rules Relating to Taxation of Alaska Native 
     Settlement Trusts.--Section 501 of the Internal Revenue Code 
     of 1986 is amended by redesignating subsection (p) as 
     subsection (q) and by inserting after subsection (o) the 
     following new subsection:
       ``(p) Special Rules for Taxation of Alaska Native 
     Settlement Trusts.--
       ``(1) In general.--For purposes of this title, the 
     following rules shall apply in the case of a Settlement 
     Trust:
       ``(A) Electing trust.--If an election under paragraph (2) 
     is in effect for any taxable year--
       ``(i) no amount shall be includible in the gross income of 
     a beneficiary of the Settlement Trust by reason of a 
     contribution to the Settlement Trust made during such taxable 
     year, and
       ``(ii) except as provided in this subsection, the 
     provisions of subchapter J and section 1(e) shall not apply 
     to the Settlement Trust and its beneficiaries for such 
     taxable year.
       ``(B) Nonelecting trust.--If an election is not in effect 
     under paragraph (2) for any taxable year, the provisions of 
     subchapter J and section 1(e) shall apply to the Settlement 
     Trust and its beneficiaries for such taxable year.
       ``(2) One-time election.--
       ``(A) In general.--A Settlement Trust may elect to have the 
     provisions of this subsection and subsection (c)(28) apply to 
     the trust and its beneficiaries.
       ``(B) Time and method of election.--An election under 
     subparagraph (A) shall be made--
       ``(i) before the due date (including extensions) for filing 
     the Settlement Trust's return of tax for the 1st taxable year 
     of the Settlement Trust ending after the date of the 
     enactment of this subsection, and
       ``(ii) by attaching to such return of tax a statement 
     specifically providing for such election.

[[Page 8026]]

       ``(C) Period election in effect.--Except as provided in 
     paragraph (3), an election under subparagraph (A)--
       ``(i) shall apply to the 1st taxable year described in 
     subparagraph (B)(i) and all subsequent taxable years, and
       ``(ii) may not be revoked once it is made.
       ``(3) Special rules where transfer restrictions modified.--
       ``(A) Transfer of beneficial interests.--If, at any time, a 
     beneficial interest in a Settlement Trust may be disposed of 
     in a manner which would not be permitted by section 7(h) of 
     the Alaska Native Claims Settlement Act (43 U.S.C. 1606(h)) 
     if the interest were Settlement Common Stock--
       ``(i) no election may be made under paragraph (2)(A) with 
     respect to such trust, and
       ``(ii) if an election under paragraph (2)(A) is in effect 
     as of such time--

       ``(I) such election is revoked as of the 1st day of the 
     taxable year following the taxable year in which such 
     disposition is first permitted, and
       ``(II) there is hereby imposed on such trust a tax equal to 
     the product of the fair market value of the assets held by 
     the trust as of the close of the taxable year in which such 
     disposition is first permitted and the highest rate of tax 
     under section 1(e) for such taxable year.

     The tax imposed by clause (ii)(II) shall be in lieu of any 
     other tax imposed by this chapter for the taxable year.
       ``(B) Stock in corporation.--If--
       ``(i) the Settlement Common Stock in any Native Corporation 
     which transferred assets to a Settlement Trust making an 
     election under paragraph (2)(A) may be disposed of in a 
     manner not permitted by section 7(h) of the Alaska Native 
     Claims Settlement Act (43 U.S.C. 1606(h)), and
       ``(ii) at any time after such disposition of stock is first 
     permitted, such corporation transfers assets to such trust,
     clause (ii) of subparagraph (A) shall be applied to such 
     trust on and after the date of the transfer in the same 
     manner as if the trust permitted dispositions of beneficial 
     interests in the trust in a manner not permitted by such 
     section 7(h).
       ``(C) Administrative provisions.--For purposes of subtitle 
     F, any tax imposed by subparagraph (A)(ii)(II) shall be 
     treated as an excise tax with respect to which the deficiency 
     procedures of such subtitle apply.
       ``(4) Distribution requirement on electing settlement 
     trust.--
       ``(A) In general.--If an election is in effect under 
     paragraph (2) for any taxable year, a Settlement Trust shall 
     distribute at least 55 percent of its adjusted taxable income 
     for such taxable year.
       ``(B) Tax imposed if insufficient distribution.--If a 
     Settlement Trust fails to meet the distribution requirement 
     of subparagraph (A) for any taxable year, then, 
     notwithstanding subsection (c)(28), a tax shall be imposed on 
     the trust under section 1(e) on an amount of taxable income 
     equal to the amount of such failure.
       ``(C) Designation of distribution.--Solely for purposes of 
     meeting the requirements of this paragraph, a Settlement 
     Trust may elect to treat any distribution (or portion) during 
     the 65-day period following the close of any taxable year as 
     made on the last day of such taxable year. Any such 
     distribution (or portion) may not be taken into account under 
     this paragraph for any other taxable year.
       ``(D) Adjusted taxable income.--For purposes of this 
     paragraph, the term `adjusted taxable income' means taxable 
     income determined under section 641(b) without regard to any 
     deduction under section 651 or 661.
       ``(5) Tax treatment of distributions to beneficiaries.--
       ``(A) Electing trust.--If an election is in effect under 
     paragraph (2) for any taxable year, any distribution to a 
     beneficiary shall be included in gross income of the 
     beneficiary as ordinary income.
       ``(B) Nonelecting trusts.--Any distribution to a 
     beneficiary from a Settlement Trust not described in 
     subparagraph (A) shall be includible in income as provided 
     under subchapter J.
       ``(6) Definitions.--For purposes of this subsection--
       ``(A) Native corporation.--The term `Native Corporation' 
     has the meaning given such term by section 3(m) of the Alaska 
     Native Claims Settlement Act (43 U.S.C. 1602(m)).
       ``(B) Settlement trust.--The term `Settlement Trust' means 
     a trust which constitutes a Settlement Trust under section 39 
     of the Alaska Native Claims Settlement Act (43 U.S.C. 
     1629e).''
       (c) Withholding on Distributions by Electing ANCSA 
     Settlement Trusts.--Section 3402 of the Internal Revenue Code 
     of 1986 is amended by adding at the end the following new 
     subsection:
       ``(t) Tax Withholding on Distributions by Electing ANCSA 
     Settlement Trusts.--
       ``(1) In general.--Any Settlement Trust (as defined in 
     section 501(p)(6)(B)) which is exempt from income tax under 
     section 501(c)(28) (in this subsection referred to as an 
     `electing trust') and which makes a payment to any 
     beneficiary shall deduct and withhold from such payment a tax 
     in an amount equal to such payment's proportionate share of 
     the annualized tax.
       ``(2) Exception.--The tax imposed by paragraph (1) shall 
     not apply to any payment to the extent that such payment, 
     when annualized, does not exceed an amount equal to the 
     amount in effect under section 6012(a)(1)(A)(i) for taxable 
     years beginning in the calendar year in which the payment is 
     made.
       ``(3) Annualized tax.--For purposes of paragraph (1), the 
     term `annualized tax' means, with respect to any payment, the 
     amount of tax which would be imposed by section 1(c) 
     (determined without regard to any rate of tax in excess of 31 
     percent) on an amount of taxable income equal to the excess 
     of--
       ``(A) the annualized amount of such payment, over
       ``(B) the amount determined under paragraph (2).
       ``(4) Annualization.--For purposes of this subsection, 
     amounts shall be annualized in the manner prescribed by the 
     Secretary.
       ``(5) No application to third party payments.--This 
     subsection shall not apply in the case of a payment made, 
     pursuant to the written terms of the trust agreement 
     governing an electing trust, directly to third parties to 
     provide educational, funeral, or medical benefits.
       ``(6) Alternate withholding procedures.--At the election of 
     an electing trust, the tax imposed by this subsection on any 
     payment made by such trust shall be determined in accordance 
     with such tables or computational procedures as may be 
     specified in regulations prescribed by the Secretary (in lieu 
     of in accordance with paragraphs (2) and (3)).
       ``(7) Coordination with other sections.--For purposes of 
     this chapter and so much of subtitle F as relates to this 
     chapter, payments which are subject to withholding under this 
     subsection shall be treated as if they were wages paid by an 
     employer to an employee.''
       (d) Reporting.--Section 6041 of the Internal Revenue Code 
     of 1986 is amended by adding at the end the following new 
     subsection:
       ``(f) Application to Alaska Native Settlement Trusts.--In 
     the case of any distribution from a Settlement Trust (as 
     defined in section 501(p)(6)(B)) to a beneficiary, this 
     section shall apply, except that--
       ``(1) this section shall apply to such distribution without 
     regard to the amount thereof,
       ``(2) the Settlement Trust shall include on any return or 
     statement required by this section information as to the 
     character of such distribution (if applicable) and the amount 
     of tax imposed by chapter 1 which has been deducted and 
     withheld from such distribution, and
       ``(3) the filing of any return or statement required by 
     this section shall satisfy any requirement to file any other 
     form or schedule under this title with respect to 
     distributive share information (including any form or 
     schedule to be included with the trust's tax return).''
       (e) Effective Date.--The amendments made by this section 
     shall apply to taxable years of Settlement Trusts ending 
     after the date of the enactment of this Act and to 
     contributions to such trusts after such date.

      By Mr. LEAHY (for himself, Mr. Kennedy, Mr. Sarbanes, Mr. Kerry, 
        Mr. Harkin, and Mrs. Murray):
  S. 934. A bill to enhance rights and protections for victims of 
crime; to the Committee on the Judiciary.


                      crime victims assistance act

  Mr. LEAHY. Mr. President, this past Sunday marked the beginning of 
National Crime Victims' Rights Week. We set this week aside each year 
to focus attention on the needs and rights of crime victims. I am 
pleased to take this opportunity to introduce legislation with my good 
friend from Massachusetts, Senator Kennedy, and our cosponsors, 
Senators Sarbanes, Kerry, Harkin, and Murray. Our ``Crime Victims 
Assistance Act'' represents the next step in our continuing efforts to 
afford dignity and recognition to victims of crime.
  My involvement with crime victims began more than three decades ago 
when I served as State's Attorney for Chittenden County, Vermont, and 
witnessed first hand the devastation of crime. I have worked ever since 
to ensure that the criminal justice system is one that respects the 
rights and dignity of victims of crime, rather than one that presents 
additional ordeals for those already victimized.
  I am proud that Congress has been a significant part of the solution 
to provide victims with greater rights and assistance. Over the past 15 
years, Congress has passed several bills to this end. These bills have 
included: the Victims and Witness Protection Act of 1982; the Victims 
of Crime Act of 1984; the Victims' Bill of Rights of 1990; the 1994 
Violent Crime Control and Law

[[Page 8027]]

Enforcement Act; the Justice for Victims of Terrorism Act of 1996; the 
Victim Rights Clarification Act of 1997; and the Victims with 
Disabilities Awareness Act.
  Also, on the first day of this session, we introduced S.9, a youth 
crime bill. In that legislation, which we have identified as a 
legislative priority for the entire Democratic caucus, we included 
provisions for victims of juvenile crime so that their rights to 
appear, to be heard, and to be informed would be protected. The recent 
tragedy in Littleton, Colorado, was only the most recent reminder of 
the urgent need to enhance protections for these victims, to ensure 
that their voices are heard.
  The legislation that we introduce today, the ``Crime Victims 
Assistance Act,'' builds upon this progress. It provides for a 
wholesale reform of the Federal Rules and Federal law to establish 
additional rights and protections for victims of federal crime.
  Particularly, the legislation would provide crime victims with an 
enhanced: right to be heard on the issue of pretrial detention; right 
to be heard on plea bargains; right to a speedy trial; right to be 
present in the courtroom throughout a trial; right to give a statement 
at sentencing; right to be heard on probation revocation; and right to 
be notified of a defendant's escape or release from prison.
  The legislation goes further than other victims rights proposals that 
are currently before Congress by including: enhanced penalties for 
witness intimidation; an increase in Federal victim assistance 
personnel; enhanced training for State and local law enforcement and 
officers of the Court; the development of state-of-the-art systems for 
notifying victims of important dates and developments in their cases; 
the establishment of ombudsman programs for crime victims; the 
establishment of pilot programs that implement balanced and restorative 
justice models; and more direct and effective Federal assistance to 
victims of international terrorism, including victims of the Lockerbie 
bombing and other terrorist acts occurring prior to passage of the 
Victims of Crime Act.
  These are all matters that can be considered and enacted this year 
with a simple majority of both Houses of Congress. They need not 
overcome the delay and higher standards necessitated by proposing to 
amend the Constitution. They need not wait the hammering out of 
implementing legislation before making a difference in the lives of 
crime victims.
  The Judiciary Committee has already held another hearing this year on 
a proposed constitutional amendment regarding crime victims. Previous 
hearings on this proposal were held in 1996, 1997, and 1998. 
Unfortunately, the Committee has devoted not a minute to consideration 
of legislative initiatives like the Crime Victims Assistance Act, which 
Senator Kennedy and I have introduced over the past years to assist 
crime victims and better protect their rights. Like many other 
deserving initiatives, it has taken a back seat to the constitutional 
amendment debate that continues.
  I regret that we did not do more for victims last year or the year 
before. Over the course of that time, I have noted my concern that we 
not dissipate the progress we could be making by focusing exclusively 
on efforts to amend the Constitution. Regretfully, I must note that the 
pace of victims legislation has slowed noticeably and many 
opportunities for progress have been squandered.
  I look forward to continuing to work with the Administration, victims 
groups, prosecutors, judges and other interested parties on how we can 
most effectively enhance the rights of victims of crime. Congress and 
State legislatures have become more sensitive to crime victims rights 
over the past 20 years and we have a golden opportunity to make 
additional, significant progress this year to provide the greater voice 
and rights that crime victims deserve.
  I would like to acknowledge several groups and individuals who have 
been extremely helpful with regards to the legislation that we are 
introducing today: The Office for Victims of Crime at the Justice 
Department; the National Network to End Domestic Violence; the NOW 
Legal Defense Fund; the National Clearinghouse for the Defense of 
Battered Women; the National Victim Center; the National Organization 
for Victim Assistance; Professor Lynne Henderson of Indiana Law School; 
and Roger Pilon, Director of the Center for Constitutional Studies at 
the Cato Institute.
  While we have greatly improved our crime victims assistance programs 
and made advances in recognizing crime victims rights, we still have 
more to do. That is why it is my hope that Democrats and Republicans, 
supporters and opponents of a constitutional amendment on this issue, 
will join in advancing this important legislation through Congress. We 
can make a difference in the lives of crime victims right now, and I 
hope Congress will make it a top priority and pass the Crime Victims 
Assistance Act before the end of the year.
  Mr. President, I ask unanimous consent that the text of the bill and 
the section-by-section analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                 S. 934

       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 ``Crime 
     Victims Assistance Act''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.

                         TITLE I--VICTIM RIGHTS

         Subtitle A--Amendments to Title 18, United States Code

Sec. 101. Right to be notified of detention hearing and right to be 
              heard on the issue of detention.
Sec. 102. Right to a speedy trial and prompt disposition free from 
              unreasonable delay.
Sec. 103. Enhanced right to order of restitution.
Sec. 104. Enhanced right to be notified of escape or release from 
              prison.
Sec. 105. Enhanced penalties for witness tampering.

     Subtitle B--Amendments to Federal Rules of Criminal Procedure

Sec. 121. Right to be notified of plea agreement and to be heard on 
              merits of the plea agreement.
Sec. 122. Enhanced rights of notification and allocution at sentencing.
Sec. 123. Rights of notification and allocution at a probation 
              revocation hearing.

           Subtitle C--Amendment to Federal Rules of Evidence

Sec. 131. Enhanced right to be present at trial.

                 Subtitle D--Remedies for Noncompliance

Sec. 141. Remedies for noncompliance.

                TITLE II--VICTIM ASSISTANCE INITIATIVES

Sec. 201. Increase in victim assistance personnel.
Sec. 202. Increased training for State and local law enforcement, State 
              court personnel, and officers of the court to respond 
              effectively to the needs of victims of crime.
Sec. 203. Increased resources for State and local law enforcement 
              agencies, courts, and prosecutors' offices to develop 
              state-of-the-art systems for notifying victims of crime 
              of important dates and developments.
Sec. 204. Pilot programs to establish ombudsman programs for crime 
              victims.
Sec. 205. Amendments to Victims of Crime Act of 1984.
Sec. 206. Services for victims of crime and domestic violence.
Sec. 207. Pilot program to study effectiveness of restorative justice 
              approach on behalf of victims of crime.
Sec. 208. Victims of terrorism.

     SEC. 2. DEFINITIONS.

       In this Act--
       (1) the term ``Attorney General'' means the Attorney 
     General of the United States;
       (2) the term ``bodily injury'' has the meaning given that 
     term in section 1365(g) of title 18, United States Code;
       (3) the term ``Commission'' means the Commission on 
     Victims' Rights established under section 204;
       (4) the term ``Indian tribe'' has the same meaning as in 
     section 4(e) of the Indian Self-Determination and Education 
     Assistance Act (25 U.S.C. 450b(e));
       (5) the term ``Judicial Conference'' means the Judicial 
     Conference of the United States established under section 331 
     of title 28, United States Code;

[[Page 8028]]

       (6) the term ``law enforcement officer'' means an 
     individual authorized by law to engage in or supervise the 
     prevention, detection, investigation, or prosecution of any 
     violation of law, and includes corrections, probation, 
     parole, and judicial officers;
       (7) the term ``Office of Victims of Crime'' means the 
     Office of Victims of Crime of the Department of Justice;
       (8) the term ``State'' means each of the several States of 
     the United States, the District of Columbia, the Commonwealth 
     of Puerto Rico, the Virgin Islands, Guam, American Samoa, and 
     the Commonwealth of the Northern Mariana Islands;
       (9) the term ``unit of local government'' means any--
       (A) city, county, township, town, borough, parish, village, 
     or other general purpose political subdivision of a State; or
       (B) Indian tribe;
       (10) the term ``victim''--
       (A) means an individual harmed as a result of a commission 
     of an offense; and
       (B) in the case of a victim who is less than 18 years of 
     age, incompetent, incapacitated, or deceased--
       (i) the legal guardian of the victim;
       (ii) a representative of the estate of the victim;
       (iii) a member of the family of the victim; or
       (iv) any other person appointed by the court to represent 
     the victim, except that in no event shall a defendant be 
     appointed as the representative or guardian of the victim; 
     and
       (11) the term ``qualified private entity'' means a private 
     entity that meets such requirements as the Attorney General 
     may establish.
                         TITLE I--VICTIM RIGHTS
         Subtitle A--Amendments to Title 18, United States Code

     SEC. 101. RIGHT TO BE NOTIFIED OF DETENTION HEARING AND RIGHT 
                   TO BE HEARD ON THE ISSUE OF DETENTION.

       Section 3142 of title 18, United States Code, is amended by 
     adding at the end the following:
       ``(k) Notification of Right To Be Heard.--
       ``(1) In general.--In any case involving a defendant who is 
     arrested for an offense involving death or bodily injury to 
     any person, a threat of death or bodily injury to any person, 
     a sexual assault, or an attempted sexual assault, in which a 
     detention hearing is scheduled pursuant to subsection (f)--
       ``(A) the Government shall make a reasonable effort to 
     notify the victim of the hearing, and of the right of the 
     victim to be heard on the issue of detention; and
       ``(B) at the hearing under subsection (f), the court shall 
     inquire of the Government as to whether the efforts at 
     notification of the victim under subparagraph (A) were 
     successful and, if so, whether the victim wishes to be heard 
     on the issue of detention and, if so, shall afford the victim 
     such an opportunity.
       ``(2) Limitation.--Upon motion of either party that 
     identification of the defendant by the victim is a fact in 
     dispute, and that no means of verification has been 
     attempted, the Court shall use appropriate measures to 
     protect integrity of the identification process.
       ``(3) Definition of victim.--In this subsection, the term 
     `victim' means any individual against whom an offense 
     involving death or bodily injury to any person, a threat of 
     death or bodily injury to any person, a sexual assault, or an 
     attempted sexual assault, has been committed and also 
     includes the parent or legal guardian of a victim who is less 
     than 18 years of age, or incompetent, or 1 or more family 
     members designated by the court if the victim is deceased or 
     incapacitated.''.

     SEC. 102. RIGHT TO A SPEEDY TRIAL AND PROMPT DISPOSITION FREE 
                   FROM UNREASONABLE DELAY.

       Section 3161(h)(8)(B) of title 18, United States Code, is 
     amended by adding at the end the following:
       ``(v) The interests of the victim (or the family of a 
     victim who is deceased or incapacitated) in the prompt and 
     appropriate disposition of the case, free from unreasonable 
     delay.''.

     SEC. 103. ENHANCED RIGHT TO ORDER OF RESTITUTION.

       Section 3664(d)(2)(A)(iv) of title 18, United States Code, 
     is amended by inserting ``, and the right of the victim (or 
     the family of a victim who is deceased or incapacitated) to 
     attend the sentencing hearing and to make a statement to the 
     court at the sentencing hearing'' before the semicolon.

     SEC. 104. ENHANCED RIGHT TO BE NOTIFIED OF ESCAPE OR RELEASE 
                   FROM PRISON.

       Section 503(c)(5)(B) of the Victims' Rights and Restitution 
     Act of 1990 (42 U.S.C. 10607(c)(5)(B)) is amended by 
     inserting after ``offender'' the following: ``, including 
     escape, work release, furlough, or any other form of release 
     from a psychiatric institution or other facility that 
     provides mental health services to offenders''.

     SEC. 105. ENHANCED PENALTIES FOR WITNESS TAMPERING.

       Section 1512 of title 18, United States Code, is amended--
       (1) in subsection (a)--
       (A) in paragraph (1), by striking ``as provided in 
     paragraph (2)'' and inserting ``as provided in paragraph 
     (3)'';
       (B) by redesignating paragraph (2) as paragraph (3);
       (C) by inserting after paragraph (1) the following:
       ``(2) Whoever uses physical force or the threat of physical 
     force, or attempts to do so, with intent to--
       ``(A) influence, delay, or prevent the testimony of any 
     person in an official proceeding;
       ``(B) cause or induce any person to--
       ``(i) withhold testimony, or withhold a record, document, 
     or other object, from an official proceeding;
       ``(ii) alter, destroy, mutilate, or conceal an object with 
     intent to impair the object's integrity or availability for 
     use in an official proceeding;
       ``(iii) evade legal process summoning that person to appear 
     as a witness, or to produce a record, document, or other 
     object, in an official proceeding; and
       ``(iv) be absent from an official proceeding to which such 
     person has been summoned by legal process; or
       ``(C) hinder, delay, or prevent the communication to a law 
     enforcement officer or judge of the United States of 
     information relating to the commission or possible commission 
     of a Federal offense or a violation of conditions of 
     probation, parole, or release pending judicial proceedings;
     shall be punished as provided in paragraph (3).''; and
       (D) in paragraph (3)(B), as redesignated, by striking ``in 
     the case of'' and all that follows before the period and 
     inserting ``an attempt to murder, the use of physical force, 
     the threat of physical force, or an attempt to do so, 
     imprisonment for not more than 20 years''; and
       (2) in subsection (b), by striking ``or physical force''.
     Subtitle B--Amendments to Federal Rules of Criminal Procedure

     SEC. 121. RIGHT TO BE NOTIFIED OF PLEA AGREEMENT AND TO BE 
                   HEARD ON MERITS OF THE PLEA AGREEMENT.

       (a) In General.--Rule 11 of the Federal Rules of Criminal 
     Procedure is amended by adding at the end the following:
       ``(i) Rights of Victims.--
       ``(1) In general.--In any case involving a defendant who is 
     charged with an offense involving death or bodily injury to 
     any person, a threat of death or bodily injury to any person, 
     a sexual assault, or an attempted sexual assault--
       ``(A) the Government, prior to a hearing at which a plea of 
     guilty or nolo contendere is entered, shall make a reasonable 
     effort to notify the victim of--
       ``(i) the date and time of the hearing; and
       ``(ii) the right of the victim to attend the hearing and to 
     address the court; and
       ``(B) if the victim attends a hearing described in 
     subparagraph (A), the court, before accepting a plea of 
     guilty or nolo contendere, shall afford the victim an 
     opportunity to be heard on the proposed plea agreement.
       ``(2) Definition of victim.--In this subsection, the term 
     `victim' means any individual against whom an offense 
     involving death or bodily injury to any person, a threat of 
     death or bodily injury to any person, a sexual assault, or an 
     attempted sexual assault, has been committed and also 
     includes the parent or legal guardian of a victim who is less 
     than 18 years of age, or incompetent, or 1 or more family 
     members designated by the court if the victim is deceased or 
     incapacitated.
       ``(4) Mass victim cases.--In any case involving more than 
     15 victims, the court, after consultation with the Government 
     and the victims, may appoint a number of victims to serve as 
     representatives of the victims' interests.''.
       (b) Effective Date.--
       (1) In general.--The amendment made by subsection (a) shall 
     become effective as provided in paragraph (3).
       (2) Action by judicial conference.--
       (A) Recommendations.--Not later than 180 days after the 
     date of enactment of this Act, the Judicial Conference shall 
     submit to Congress a report containing recommendations for 
     amending the Federal Rules of Criminal Procedure to provide 
     enhanced opportunities for victims of offenses involving 
     death or bodily injury to any person, the threat of death or 
     bodily injury to any person, a sexual assault, or an 
     attempted sexual assault, to be heard on the issue of whether 
     or not the court should accept a plea of guilty or nolo 
     contendere.
       (B) Inapplicability of other law.--Chapter 131 of title 28, 
     United States Code, does not apply to any recommendation made 
     by the Judicial Conference under this paragraph.
       (3) Congressional action.--Except as otherwise provided by 
     law, if the Judicial Conference--
       (A) submits a report in accordance with paragraph (2) 
     containing recommendations described in that paragraph, and 
     those recommendations are the same as the amendment made by 
     subsection (a), then the amendment made by subsection (a) 
     shall become effective 30 days after the date on which the 
     recommendations are submitted to Congress under paragraph 
     (2);
       (B) submits a report in accordance with paragraph (2) 
     containing recommendations described in that paragraph, and 
     those recommendations are different in any respect

[[Page 8029]]

     from the amendment made by subsection (a), the 
     recommendations made pursuant to paragraph (2) shall become 
     effective 180 days after the date on which the 
     recommendations are submitted to Congress under paragraph 
     (2), unless an Act of Congress is passed overturning the 
     recommendations; and
       (C) fails to comply with paragraph (2), the amendment made 
     by subsection (a) shall become effective 360 days after the 
     date of enactment of this Act.
       (4) Application.--Any amendment made pursuant to this 
     section (including any amendment made pursuant to the 
     recommendations of the United States Sentencing Commission 
     under paragraph (2)) shall apply in any proceeding commenced 
     on or after the effective date of the amendment.

     SEC. 122. ENHANCED RIGHTS OF NOTIFICATION AND ALLOCUTION AT 
                   SENTENCING.

       (a) In General.--Rule 32 of the Federal Rules of Criminal 
     Procedure is amended--
       (1) in subsection (b)--
       (A) in paragraph (4), by striking subparagraph (D) and 
     inserting the following:
       ``(D) a victim impact statement, identifying, to the 
     maximum extent practicable--
       ``(i) each victim of the offense (except that such 
     identification shall not include information relating to any 
     telephone number, place of employment, or residential address 
     of any victim);
       ``(ii) an itemized account of any economic loss suffered by 
     each victim as a result of the offense;
       ``(iii) any physical injury suffered by each victim as a 
     result of the offense, along with its seriousness and 
     permanence;
       ``(iv) a description of any change in the personal welfare 
     or familial relationships of each victim as a result of the 
     offense; and
       ``(v) a description of the impact of the offense upon each 
     victim and the recommendation of each victim regarding an 
     appropriate sanction for the defendant;''; and
       (B) by adding at the end the following:
       ``(7) Victim impact statements.--
       ``(A) In general.--Any probation officer preparing a 
     presentence report shall--
       ``(i) make a reasonable effort to notify each victim of the 
     offense that such a report is being prepared and the purpose 
     of such report; and
       ``(ii) provide the victim with an opportunity to submit an 
     oral or written statement, or a statement on audio or 
     videotape outlining the impact of the offense upon the 
     victim.
       ``(B) Use of statements.--Any written statement submitted 
     by a victim under subparagraph (A) shall be attached to the 
     presentence report and shall be provided to the sentencing 
     court and to the parties.'';
       (2) in subsection (c)(1), by adding at the end the 
     following: ``Before sentencing in any case in which a 
     defendant has been charged with or found guilty of an offense 
     involving death or bodily injury to any person, a threat of 
     death or bodily injury to any person, a sexual assault, or an 
     attempted sexual assault, the Government shall make a 
     reasonable effort to notify the victim (or the family of a 
     victim who is deceased) of the time and place of sentencing 
     and of their right to attend and to be heard.''; and
       (3) in subsection (f), by inserting ``the right to 
     notification and to submit a statement under subdivision 
     (b)(7), the right to notification and to be heard under 
     subdivision (c)(1), and'' before ``the right of allocution''.
       (b) Effective Date.--
       (1) In general.--The amendments made by subsection (a) 
     shall become effective as provided in paragraph (3).
       (2) Action by judicial conference.--
       (A) Recommendations.--Not later than 180 days after the 
     date of enactment of this Act, the Judicial Conference shall 
     submit to Congress a report containing recommendations for 
     amending the Federal Rules of Criminal Procedure to provide 
     enhanced opportunities for victims of offenses involving 
     death or bodily injury to any person, the threat of death or 
     bodily injury to any person, a sexual assault, or an 
     attempted sexual assault, to participate during the 
     presentencing phase of the criminal process.
       (B) Inapplicability of other law.--Chapter 131 of title 28, 
     United States Code, does not apply to any recommendation made 
     by the Judicial Conference under this paragraph.
       (3) Congressional action.--Except as otherwise provided by 
     law, if the Judicial Conference--
       (A) submits a report in accordance with paragraph (2) 
     containing recommendations described in that paragraph, and 
     those recommendations are the same as the amendments made by 
     subsection (a), then the amendments made by subsection (a) 
     shall become effective 30 days after the date on which the 
     recommendations are submitted to Congress under paragraph 
     (2);
       (B) submits a report in accordance with paragraph (2) 
     containing recommendations described in that paragraph, and 
     those recommendations are different in any respect from the 
     amendments made by subsection (a), the recommendations made 
     pursuant to paragraph (2) shall become effective 180 days 
     after the date on which the recommendations are submitted to 
     Congress under paragraph (2), unless an Act of Congress is 
     passed overturning the recommendations; and
       (C) fails to comply with paragraph (2), the amendments made 
     by subsection (a) shall become effective 360 days after the 
     date of enactment of this Act.
       (4) Application.--Any amendment made pursuant to this 
     section (including any amendment made pursuant to the 
     recommendations of the United States Sentencing Commission 
     under paragraph (2)) shall apply in any proceeding commenced 
     on or after the effective date of the amendment.

     SEC. 123. RIGHTS OF NOTIFICATION AND ALLOCUTION AT A 
                   PROBATION REVOCATION HEARING.

       (a) In General.--Rule 32.1 of the Federal Rules of Criminal 
     Procedure is amended by adding at the end the following:
       ``(d) Rights of Victims.--
       ``(1) In general.--At any hearing pursuant to subsection 
     (a)(2) involving one or more persons who have been convicted 
     of an offense involving death or bodily injury to any person, 
     a threat of death or bodily injury to any person, a sexual 
     assault, or an attempted sexual assault, the Government shall 
     make reasonable effort to notify the victim of the offense 
     (and the victim of any new charges giving rise to the 
     hearings), of--
       ``(A) the date and time of the hearing; and
       ``(B) the right of the victim to attend the hearing and to 
     address the court regarding whether the terms or conditions 
     of probation or supervised release should be modified.
       ``(2) Duties of court at hearing.--At any hearing described 
     in paragraph (1) at which a victim is present, the court 
     shall--
       ``(A) address each victim personally; and
       ``(B) afford the victim an opportunity to be heard on the 
     proposed terms or conditions of probation or supervised 
     release.
       ``(3) Definition of victim.--In this rule, the term 
     `victim' means any individual against whom an offense 
     involving death or bodily injury to any person, a threat of 
     death or bodily injury to any person, a sexual assault, or an 
     attempted sexual assault, has been committed and a hearing 
     pursuant to subsection (a)(2) is conducted, including--
       ``(A) a parent or legal guardian of the victim, if the 
     victim is less than 18 years of age or is incompetent; or
       ``(B) 1 or more family members or relatives of the victim 
     designated by the court, if the victim is deceased or 
     incapacitated.''.
       (b) Effective Date.--
       (1) In general.--The amendment made by subsection (a) shall 
     become effective as provided in paragraph (3).
       (2) Action by judicial conference.--
       (A) Recommendations.--Not later than 180 days after the 
     date of enactment of this Act, the Judicial Conference shall 
     submit to Congress a report containing recommendations for 
     amending the Federal Rules of Criminal Procedure to ensure 
     that reasonable efforts are made to notify victims of 
     offenses involving death or bodily injury to any person, or 
     the threat of death or bodily injury to any person, of any 
     revocation hearing held pursuant to rule 32.1(a)(2) of the 
     Federal Rules of Criminal Procedure.
       (B) Inapplicability of other law.--Chapter 131 of title 28, 
     United States Code, does not apply to any recommendation made 
     by the Judicial Conference under this paragraph.
       (3) Congressional action.--Except as otherwise provided by 
     law, if the Judicial Conference--
       (A) submits a report in accordance with paragraph (2) 
     containing recommendations described in that paragraph, and 
     those recommendations are the same as the amendment made by 
     subsection (a), then the amendment made by subsection (a) 
     shall become effective 30 days after the date on which the 
     recommendations are submitted to Congress under paragraph 
     (2);
       (B) submits a report in accordance with paragraph (2) 
     containing recommendations described in that paragraph, and 
     those recommendations are different in any respect from the 
     amendment made by subsection (a), the recommendations made 
     pursuant to paragraph (2) shall become effective 180 days 
     after the date on which the recommendations are submitted to 
     Congress under paragraph (2), unless an Act of Congress is 
     passed overturning the recommendations; and
       (C) fails to comply with paragraph (2), the amendment made 
     by subsection (a) shall become effective 360 days after the 
     date of enactment of this Act.
       (4) Application.--Any amendment made pursuant to this 
     section (including any amendment made pursuant to the 
     recommendations of the United States Sentencing Commission 
     under paragraph (2)) shall apply in any proceeding commenced 
     on or after the effective date of the amendment.
           Subtitle C--Amendment to Federal Rules of Evidence

     SEC. 131. ENHANCED RIGHT TO BE PRESENT AT TRIAL.

       (a) In General.--Rule 615 of the Federal Rules of Evidence 
     is amended--
       (1) by striking ``At the request'' and inserting the 
     following:
       ``(a) In General.--Except as provided in subsection (b), at 
     the request'';
       (2) by striking ``This rule'' and inserting the following:
       ``(b) Exceptions.--Subsection (a)'';
       (3) by striking ``exclusion of (1) a party'' and inserting 
     the following: ``exclusion of--
       ``(1) a party'';
       (4) by striking ``person, or (2) an officer'' and inserting 
     the following: ``person;

[[Page 8030]]

       ``(2) an officer'';
       (5) by striking ``attorney, or (3) a person'' and inserting 
     the following: ``attorney;
       ``(3) a person'';
       (6) by striking the period at the end and inserting ``; 
     or''; and
       (7) by adding at the end the following:
       ``(4) a person who is a victim (or a member of the 
     immediate family of a victim who is deceased or 
     incapacitated) of an offense involving death or bodily injury 
     to any person, a threat of death or bodily injury to any 
     person, a sexual assault, or an attempted sexual assault, for 
     which a defendant is being tried in a criminal trial, unless 
     the court concludes that--
       ``(A) the testimony of the person will be materially 
     affected by hearing the testimony of other witnesses, and the 
     material effect of hearing the testimony of other witnesses 
     on the testimony of that person will result in unfair 
     prejudice to any party; or
       ``(B) due to the large number of victims or family members 
     of victims who may be called as witnesses, permitting 
     attendance in the courtroom itself when testimony is being 
     heard is not feasible.
       ``(c) Discretion of Court; Effect on Other Law.--Nothing in 
     subsection (b)(4) shall be construed--
       ``(1) to limit the ability of a court to exclude a witness, 
     if the court determines that such action is necessary to 
     maintain order during a court proceeding; or
       ``(2) to limit or otherwise affect the ability of a witness 
     to be present during court proceedings pursuant to section 
     3510 of title 18, United States Code.''.
       (b) Effective Date.--
       (1) In general.--The amendments made by subsection (a) 
     shall become effective as provided in paragraph (3).
       (2) Action by judicial conference.--
       (A) Recommendations.--Not later than 180 days after the 
     date of enactment of this Act, the Judicial Conference shall 
     submit to Congress a report containing recommendations for 
     amending the Federal Rules of Evidence to provide enhanced 
     opportunities for victims of offenses involving death or 
     bodily injury to any person, or the threat of death or bodily 
     injury to any person, to attend judicial proceedings, even if 
     they may testify as a witness at the proceeding.
       (B) Inapplicability of other law.--Chapter 131 of title 28, 
     United States Code, does not apply to any recommendation made 
     by the Judicial Conference under this paragraph.
       (3) Congressional action.--Except as otherwise provided by 
     law, if the Judicial Conference--
       (A) submits a report in accordance with paragraph (2) 
     containing recommendations described in that paragraph, and 
     those recommendations are the same as the amendments made by 
     subsection (a), then the amendments made by subsection (a) 
     shall become effective 30 days after the date on which the 
     recommendations are submitted to Congress under paragraph 
     (2);
       (B) submits a report in accordance with paragraph (2) 
     containing recommendations described in that paragraph, and 
     those recommendations are different in any respect from the 
     amendments made by subsection (a), the recommendations made 
     pursuant to paragraph (2) shall become effective 180 days 
     after the date on which the recommendations are submitted to 
     Congress under paragraph (2), unless an Act of Congress is 
     passed overturning the recommendations; and
       (C) fails to comply with paragraph (2), the amendments made 
     by subsection (a) shall become effective 360 days after the 
     date of enactment of this Act.
       (4) Application.--Any amendment made pursuant to this 
     section (including any amendment made pursuant to the 
     recommendations of the United States Sentencing Commission 
     under paragraph (2)) shall apply in any proceeding commenced 
     on or after the effective date of the amendment.
                 Subtitle D--Remedies for Noncompliance

     SEC. 141. REMEDIES FOR NONCOMPLIANCE.

       (a) General Limitation.--Any failure to comply with any 
     amendment made by this Act shall not give rise to a claim for 
     damages, or any other action against the United States, or 
     any employee of the United States, any court official or 
     officer of the court, or an entity contracting with the 
     United States, or any action seeking a rehearing or other 
     reconsideration of action taken in connection with a 
     defendant.
       (b) Regulations To Ensure Compliance.--
       (1) In general.--Notwithstanding subsection (a), not later 
     than 1 year after the date of enactment of this Act, the 
     Attorney General and the Chairman of the United States Parole 
     Commission shall promulgate regulations to implement and 
     enforce the amendments made by this title.
       (2) Contents.--The regulations promulgated under paragraph 
     (1) shall--
       (A) contain disciplinary sanctions, including suspension or 
     termination from employment, for employees of the Department 
     of Justice (including employees of the United States Parole 
     Commission) who willfully or repeatedly violate the 
     amendments made by this title, or willfully or repeatedly 
     refuse or fail to comply with provisions of Federal law 
     pertaining to the treatment of victims of crime;
       (B) include an administrative procedure through which 
     parties can file formal complaints with the Department of 
     Justice alleging violations of the amendments made by this 
     title;
       (C) provide that a complainant is prohibited from 
     recovering monetary damages against the United States, or any 
     employee of the United States, either in his official or 
     personal capacity; and
       (D) provide that the Attorney General, or the designee of 
     the Attorney General, shall the ultimate arbiter of the 
     complaint, and there shall be no judicial review of the final 
     decision of the Attorney General by a complainant.
                TITLE II--VICTIM ASSISTANCE INITIATIVES

     SEC. 201. INCREASE IN VICTIM ASSISTANCE PERSONNEL.

       There are authorized to be appropriated such sums as may be 
     necessary to enable the Attorney General to--
       (1) hire 50 full-time or full-time equivalent employees to 
     serve victim-witness advocates to provide assistance to 
     victims of any criminal offense investigated by any 
     department or agency of the Federal Government; and
       (2) provide grants through the Office of Victims of Crime 
     to qualified private entities to fund 50 victim-witness 
     advocate positions within those organizations.

     SEC. 202. INCREASED TRAINING FOR STATE AND LOCAL LAW 
                   ENFORCEMENT, STATE COURT PERSONNEL, AND 
                   OFFICERS OF THE COURT TO RESPOND EFFECTIVELY TO 
                   THE NEEDS OF VICTIMS OF CRIME.

       Notwithstanding any other provision of law, amounts 
     collected pursuant to sections 3729 through 3731 of title 31, 
     United States Code (commonly known as the ``False Claims 
     Act''), may be used by the Office of Victims of Crime to make 
     grants to States, units of local government, and qualified 
     private entities, to provide training and information to 
     prosecutors, judges, law enforcement officers, probation 
     officers, and other officers and employees of Federal and 
     State courts to assist them in responding effectively to the 
     needs of victims of crime.

     SEC. 203. INCREASED RESOURCES FOR STATE AND LOCAL LAW 
                   ENFORCEMENT AGENCIES, COURTS, AND PROSECUTORS' 
                   OFFICES TO DEVELOP STATE-OF-THE-ART SYSTEMS FOR 
                   NOTIFYING VICTIMS OF CRIME OF IMPORTANT DATES 
                   AND DEVELOPMENTS.

       (a) In General.--Subtitle A of title XXIII of the Violent 
     Crime Control and Law Enforcement Act of 1994 (Public Law 
     103-322; 108 Stat. 2077) is amended by adding at the end the 
     following:

     ``SEC. 230103. STATE-OF-THE-ART SYSTEMS FOR NOTIFYING VICTIMS 
                   OF CRIME OF IMPORTANT DATES AND DEVELOPMENTS.

       ``(a) Authorization of Appropriations.--There are 
     authorized to be appropriated to the Office of Victims of 
     Crime of the Department of Justice such sums as may be 
     necessary for grants to State and local prosecutors' offices, 
     State courts, county jails, State correctional institutions, 
     and qualified private entities, to develop and implement 
     state-of-the-art systems for notifying victims of crime of 
     important dates and developments relating to the criminal 
     proceedings at issue.
       ``(b) False Claims Act.--Notwithstanding any other 
     provision of law, amounts collected pursuant to sections 3729 
     through 3731 of title 31, United States Code (commonly known 
     as the `False Claims Act'), may be used for grants under this 
     section.''.
       (b) Violent Crime Reduction Trust Fund.--Section 310004(d) 
     of the Violent Crime Control and Law Enforcement Act of 1994 
     (42 U.S.C. 14214(d)) is amended--
       (1) in the first paragraph designated as paragraph (15) 
     (relating to the definition of the term ``Federal law 
     enforcement program''), by striking ``and'' at the end;
       (2) in the first paragraph designated as paragraph (16) 
     (relating to the definition of the term ``Federal law 
     enforcement program''), by striking the period at the end and 
     inserting ``; and''; and
       (3) by inserting after the first paragraph designated as 
     paragraph (16) (relating to the definition of the term 
     ``Federal law enforcement program'') the following:
       ``(17) section 230103.''.

     SEC. 204. PILOT PROGRAMS TO ESTABLISH OMBUDSMAN PROGRAMS FOR 
                   CRIME VICTIMS.

       (a) Definitions.--In this section:
       (1) Director.--The term ``Director'' means the Director of 
     the Office of Victims of Crime.
       (2) Office.--The term ``Office'' means the Office of 
     Victims of Crime.
       (3) Qualified private entity.--The term ``qualified private 
     entity'' means a private entity that meets such requirements 
     as the Attorney General, acting through the Director, may 
     establish.
       (4) Qualified unit of state or local government.--The term 
     ``qualified unit of State or local government'' means a unit 
     or a State or local government that meets such requirements 
     as the Attorney General, acting through the Director, may 
     establish.
       (5) Voice centers.--The term ``VOICE Centers'' means the 
     Victim Ombudsman Information Centers established under the 
     program under subsection (b).

[[Page 8031]]

       (b) Pilot Programs.--
       (1) In general.--Not later than 12 months after the date of 
     enactment of this Act, the Attorney General, acting through 
     the Director, shall establish and carry out a program to 
     provide for pilot programs to establish and operate Victim 
     Ombudsman Information Centers in each of the following 
     States:
       (A) Iowa.
       (B) Massachusetts.
       (C) Ohio.
       (D) Tennessee.
       (E) Utah.
       (F) Vermont.
       (2) Agreements.--
       (A) In general.--The Attorney General, acting through the 
     Director, shall enter into an agreement with a qualified 
     private entity or unit of State or local government to 
     conduct a pilot program referred to in paragraph (1). Under 
     the agreement, the Attorney General, acting through the 
     Director, shall provide for a grant to assist the qualified 
     private entity or unit of State or local government in 
     carrying out the pilot program.
       (B) Contents of agreement.--The agreement referred to in 
     subparagraph (A) shall specify that--
       (i) the VOICE Center shall be established in accordance 
     with this section; and
       (ii) except with respect to meeting applicable requirements 
     of this section concerning carrying out the duties of a VOICE 
     Center under this section (including the applicable reporting 
     duties under subsection (c) and the terms of the agreement) 
     each VOICE Center shall operate independently of the Office; 
     and
       (C) No authority over daily operations.--The Office shall 
     have no supervisory or decisionmaking authority over the day-
     to-day operations of a VOICE Center.
       (c) Objectives.--
       (1) Mission.--The mission of each VOICE Center established 
     under a pilot program under this section shall be to assist a 
     victim of a Federal or State crime to ensure that the 
     victim--
       (A) is fully apprised of the rights of that victim under 
     applicable Federal or State law; and
       (B) participates in the criminal justice process to the 
     fullest extent of the law.
       (2) Duties.--The duties of a VOICE Center shall include--
       (A) providing information to victims of Federal or State 
     crime regarding the right of those victims to participate in 
     the criminal justice process (including information 
     concerning any right that exists under applicable Federal or 
     State law);
       (B) identifying and responding to situations in which the 
     rights of victims of crime under applicable Federal or State 
     law may have been violated;
       (C) attempting to facilitate compliance with Federal or 
     State law referred to in subparagraph (B);
       (D) educating police, prosecutors, Federal and State 
     judges, officers of the court, and employees of jails and 
     prisons concerning the rights of victims under applicable 
     Federal or State law; and
       (E) taking measures that are necessary to ensure that 
     victims of crime are treated with fairness, dignity, and 
     compassion throughout the criminal justice process.
       (d) Oversight.--
       (1) Technical assistance.--The Office may provide technical 
     assistance to each VOICE Center.
       (2) Annual report.--Each qualified private entity or 
     qualified unit of State or local government that carries out 
     a pilot program to establish and operate a VOICE Center under 
     this section shall prepare and submit to the Director, not 
     later than 1 year after the VOICE Center is established, and 
     annually thereafter, a report that--
       (A) describes in detail the activities of the VOICE Center 
     during the preceding year; and
       (B) outlines a strategic plan for the year following the 
     year covered under subparagraph (A).
       (e) Review of Program Effectiveness.--
       (1) GAO study.--Not later than 2 years after the date on 
     which each VOICE Center established under a pilot program 
     under this section is fully operational, the Comptroller 
     General of the United States shall conduct a review of each 
     pilot program carried out under this section to determine the 
     effectiveness of the VOICE Center that is the subject of the 
     pilot program in carrying out the mission and duties 
     described in subsection (c).
       (2) Other studies.--Not later than 2 years after the date 
     on which each VOICE Center established under a pilot program 
     under this section is fully operational, the Attorney 
     General, acting through the Director, shall enter into an 
     agreement with 1 or more private entities that meet such 
     requirements the Attorney General, acting through the 
     Director, may establish, to study the effectiveness of each 
     VOICE Center established by a pilot program under this 
     section in carrying out the mission and duties described in 
     subsection (c).
       (f) Termination Date.--
       (1) In general.--Except as provided in paragraph (2), a 
     pilot program established under this section shall terminate 
     on the date that is 4 years after the date of enactment of 
     this Act.
       (2) Renewal.--If the Attorney General determines that any 
     of the pilot programs established under this section should 
     be renewed for an additional period, the Attorney General may 
     renew that pilot program for a period not to exceed 2 years.
       (g) Funding.--Notwithstanding any other provision of law, 
     an aggregate amount not to exceed $5,000,000 of the amounts 
     collected pursuant to sections 3729 through 3731 of title 31, 
     United States Code (commonly known as the ``False Claims 
     Act''), may be used by the Director to make grants under 
     subsection (b).

     SEC. 205. AMENDMENTS TO VICTIMS OF CRIME ACT OF 1984.

       (a) Crime Victims Fund.--Section 1402 of the Victims of 
     Crime Act of 1984 (42 U.S.C. 10601) is amended--
       (1) in subsection (b)--
       (A) in paragraph (3), by striking ``and'' at the end;
       (B) in paragraph (4), by striking the period at the end and 
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(5) any gifts, bequests, and donations from private 
     entities or individuals.''; and
       (2) in subsection (d)--
       (A) by striking paragraph (1) and inserting the following:
       ``(1) All unobligated balances transferred to the judicial 
     branch for administrative costs to carry out functions under 
     sections 3611 and 3612 of title 18, United States Code, shall 
     be returned to the Crime Victims Fund and may be used by the 
     Director to improve services for crime victims in the Federal 
     criminal justice system.''; and
       (B) in paragraph (4), by adding at the end the following:
       ``(C) States that receive supplemental funding to respond 
     to incidents or terrorism or mass violence under this section 
     shall be required to return to the Crime Victims Fund for 
     deposit in the reserve fund, amounts subrogated to the State 
     as a result of third-party payments to victims.''.
       (b) Crime Victim Compensation.--Section 1403 of the Victims 
     of Crime Act of 1984 (42 U.S.C. 10602) is amended--
       (1) in subsection (a)--
       (A) in each of paragraphs (1) and (2), by striking ``40'' 
     and inserting ``60''; and
       (B) in paragraph (3), by inserting ``and evaluation'' after 
     ``administration''; and
       (2) in subsection (b)(7), by inserting ``because the 
     identity of the offender was not determined beyond a 
     reasonable doubt in a criminal trial, because criminal 
     charges were not brought against the offender, or'' after 
     ``deny compensation to any victim''.
       (c) Crime Victim Assistance.--Section 1404 of the Victims 
     of Crime Act of 1984 (42 U.S.C. 10603) is amended--
       (1) in subsection (c)--
       (A) in paragraph (1)--
       (i) by striking the comma after ``Director'';
       (ii) by inserting ``or enter into cooperative agreements'' 
     after ``make grants'';
       (iii) by striking subparagraph (A) and inserting the 
     following:
       ``(A) for demonstration projects, evaluation, training, and 
     technical assistance services to eligible organizations;'';
       (iv) in subparagraph (B), by striking the period at the end 
     and inserting ``; and''; and
       (v) by adding at the end the following:
       ``(C) training and technical assistance that address the 
     significance of and effective delivery strategies for 
     providing long-term psychological care.''; and
       (B) in paragraph (3)--
       (i) in subparagraph (C), by striking ``and'' at the end;
       (ii) in subparagraph (D), by striking the period at the end 
     and inserting ``; and''; and
       (iii) by adding at the end the following:
       ``(E) use funds made available to the Director under this 
     subsection--
       ``(i) for fellowships and clinical internships; and
       ``(ii) to carry out programs of training and special 
     workshops for the presentation and dissemination of 
     information resulting from demonstrations, surveys, and 
     special projects.''; and
       (2) in subsection (d)--
       (A) by striking paragraph (1) and inserting the following:
       ``(1) the term `State' includes--
       ``(A) the District of Columbia, the Commonwealth of Puerto 
     Rico, the United States Virgin Islands, and any other 
     territory or possession of the United States; and
       ``(B) for purposes of a subgrant under subsection (a)(1) or 
     a grant or cooperative agreement under subsection (c)(1), the 
     United States Virgin Islands and any agency of the government 
     of the District of Columbia or the Federal Government 
     performing law enforcement functions in and on behalf of the 
     District of Columbia.'';
       (B) in paragraph (2)--
       (i) in subparagraph (C), by striking ``and'' at the end; 
     and
       (ii) by adding at the end the following:
       ``(E) public awareness and education and crime prevention 
     activities that promote, and are conducted in conjunction 
     with, the provision of victim assistance; and
       ``(F) for purposes of an award under subsection (c)(1)(A), 
     preparation, publication, and distribution of informational 
     materials and resources for victims of crime and crime 
     victims organizations.'';
       (C) by striking paragraph (4) and inserting the following:

[[Page 8032]]

       ``(4) the term `crisis intervention services' means 
     counseling and emotional support including mental health 
     counseling, provided as a result of crisis situations for 
     individuals, couples, or family members following and related 
     to the occurrence of crime;'';
       (D) in paragraph (5), by striking the period at the end and 
     inserting ``; and''; and
       (E) by adding at the end the following:
       ``(6) for purposes of an award under subsection (c)(1), the 
     term `eligible organization' includes any--
       ``(A) national or State organization with a commitment to 
     developing, implementing, evaluating, or enforcing victims' 
     rights and the delivery of services;
       ``(B) State agency or unit of local government;
       ``(C) tribal organization;
       ``(D) organization--
       ``(i) described in section 501(c) of the Internal Revenue 
     Code of 1986; and
       ``(ii) exempt from taxation under section 501(a) of such 
     Code; or
       ``(E) other entity that the Director determines to be 
     appropriate.''.
       (d) Compensation and Assistance to Victims of Terrorism of 
     Mass Violence.--Section 1404B of the Victims of Crime Act of 
     1984 (42 U.S.C. 10603b) is amended--
       (1) in subsection (a), by striking ``1404(a)'' and 
     inserting ``1402(d)(4)(B)''; and
       (2) in subsection (b), by striking ``1404(d)(4)(B)'' and 
     inserting ``1402(d)(4)(B)''.

     SEC. 206. SERVICES FOR VICTIMS OF CRIME AND DOMESTIC 
                   VIOLENCE.

       Section 504 of the Departments of Commerce, Justice, and 
     State, the Judiciary, and Related Agencies Appropriations 
     Act, 1996 (110 Stat. 1321-53) may not be construed to 
     prohibit a recipient (as that term is used in that section) 
     from using funds derived from a source other than the Legal 
     Services Corporation to provide related legal assistance (as 
     defined in section 502(b) of Public Law 105-119 (111 Stat. 
     2511)) to any person with whom an alien (as that term is used 
     in subsection (a)(11) of that section) has a relationship 
     covered by the domestic violence laws of the State in which 
     the alien resides or in which an incidence of violence 
     occurred.

     SEC. 207. PILOT PROGRAM TO STUDY EFFECTIVENESS OF RESTORATIVE 
                   JUSTICE APPROACH ON BEHALF OF VICTIMS OF CRIME.

       (a) In General.--Notwithstanding any other provision of 
     law, amounts collected pursuant to sections 3729 through 3731 
     of title 31, United States Code (commonly known as the 
     ``False Claims Act''), may be used by the Office of Victims 
     of Crime to make grants to States, units of local government, 
     and qualified private entities for the establishment of pilot 
     programs that implement balanced and restorative justice 
     models.
       (b) Definition of Balanced and Restorative Justice Model.--
     In this section, the term ``balanced and restorative justice 
     model'' means an approach to criminal justice that promotes 
     the maximum degree of involvement by a victim, offender, and 
     the community served by a criminal justice system by allowing 
     the criminal justice system and related criminal justice 
     agencies to improve the capacity of the system and agencies 
     to--
       (1) protect the community served by the system and 
     agencies; and
       (2) ensure accountability of the offender and the system.

     SEC. 208. VICTIMS OF TERRORISM.

       (a) In General.--Section 1404B of the Victims of Crime Act 
     of 1984 (42 U.S.C. 10603b) is amended to read as follows:

     ``SEC. 1404B. COMPENSATION AND ASSISTANCE TO VICTIMS OF 
                   TERRORISM OR MASS VIOLENCE.

       ``(a) In General.--The Director may make grants, as 
     provided in either section 1402(d)(4)(B) or 1404--
       ``(1) to States, which shall be used for eligible crime 
     victim compensation and assistance programs for the benefit 
     of victims described in subsection (b); and
       ``(2) to victim service organizations, and public agencies 
     that provide emergency or ongoing assistance to victims of 
     crime, which shall be used to provide, for the benefit of 
     victims described in subsection (b)--
       ``(A) emergency relief (including compensation, assistance, 
     and crisis response) and other related victim services; and
       ``(B) emergency response training and technical assistance.
       ``(b) Victims Described.--Victims described in this 
     subsection are victims of a terrorist act or mass violence, 
     whether occurring within or outside the United States, who 
     are--
       ``(1) citizens or employees of the United States; and
       ``(2) not eligible for compensation under title VIII of the 
     Omnibus Diplomatic Security and Antiterrorism Act of 1986.''.
       (b) Applicability.--The amendment made by this section 
     applies to any terrorist act or mass violence occurring on or 
     after December 20, 1989.
                                  ____


     Section-by-Section Summary of the Crime Victims Assistance Act


             TITLE I--VICTIMS RIGHTS IN THE FEDERAL SYSTEM

       Title I reforms federal law and the federal rules of 
     evidence to provide enhanced protections to victims of 
     federal crime, from the time of the defendant's arrest 
     through sentencing, including post-sentencing hearings.
     Subtitle A. Amendments to Title 18
       Sec. 101. Right to be Notified of Detention Hearing and 
           Right to be Heard on the Issue of Detention
       Section 101 amends federal law to establish a victim's 
     right to be notified of a detention hearing, to attend the 
     detention hearing, and be heard on the issue of detention. No 
     such right currently exists in federal law.
       In cases where identification of the defendant remains at 
     issue, section 101 provides flexibility to the presiding 
     judge to protect the integrity of the identification.
       Sec. 102. Right to a Speedy Trial and Prompt Disposition 
           Free From Unreasonable Delay
       Section 102 amends the Speedy Trial Act to require the 
     Court to take into account the interests of the victim in the 
     prompt and appropriate disposition of the case, free from 
     unreasonable delay when considering a motion to continue a 
     trial.
       Sec. 103. Enhanced Right to Order of Restitution
       Section 103 amends federal law to ensure that the victim 
     has the right to attend a sentencing hearing and to make a 
     statement to the court at sentencing.
       Sec. 104. Right to be Notified of Escape or Release from 
           Prison
       Section 104 amends the Victims Rights and Restitution Act 
     of 1990 to expand the victim's right to be notified of an 
     offender's release or escape from custody. Specifically, this 
     section clarifies that a victim has the right to be notified 
     of the offender's escape or release from a psychiatric 
     institution. Current law does not address this potentially 
     critical issue.
       Sec. 105. Enhanced Penalties for Witness Tampering
       Section 105 amends a federal witness tampering statute (18 
     U.S.C. Sec. 1512) to raise the statutory maximum penalties in 
     witness tampering cases involving the use or threatened use 
     of physical force from 10 years to 20 years.
     Subtitle B. Amendments to Federal Rules of Criminal Procedure
       Sec. 121. Right to be Notified of Plea Agreement and to be 
           Heard on Merits of the Plea Agreement
       Section 121 (a) amends Rule 11 of the Federal Rules of 
     Criminal Procedure (governing pleas) to require the 
     government to make a reasonable effort to notify the victim 
     of an upcoming plea hearing, and of the victim's right to be 
     heard at the plea hearing. In cases involving more than 15 
     victims, the Court, after consultation with the government 
     and the victims, may appoint a number of victims as 
     representatives of the victims' interests.
       Section 121 (b) provides a timetable for the implementation 
     of the amendments to Rule 11, taking into consideration the 
     recommendations of the United States Judicial Conference.
       Sec. 122. Enhanced Rights of Notification and Allocution at 
           Sentencing
       Section 122 (a) amends Rule 32 of the Federal Rules of 
     Criminal Procedures (Sentencing) to provide for enhanced 
     opportunities for victims to participate in the criminal 
     sentencing process. Specifically, section 122(a) amends Rule 
     32 to require that presentence reports contain very specific 
     information about victim impact. Probation officers are 
     required to make reasonable efforts to notify the victim 
     about the preparation of the presentence reports, and must 
     provide victims with an opportunity to submit oral or written 
     statements, including statements on audio or videotape, 
     describing the impact of the offense on the victim. In 
     addition, Rule 32 is amended to require the government to 
     make a reasonable effort to notify the victim of the time and 
     place of sentencing, and the victim's right to be heard at 
     sentencing. These provisions are intended to insure that 
     victims remain actively involved throughout the criminal 
     process.
       Section 122(b) provides a timetable for the implementation 
     of the amendments to Rule 32, taking into consideration the 
     recommendations of the United States Judicial Conference.
       Sec. 123. Rights of Notification and Allocution At a 
           Probation Revocation Hearing
       Section 123(a) amends Rule 32.1 of the Federal Rules of 
     Criminal Procedure (Probation Revocation or Modification of 
     Supervised Release) to provide enhanced opportunities for 
     victims to be notified of and participate in revocation 
     hearings. Often times, when a defendant is taken into custody 
     for violating conditions of release or conditions of 
     probation, a victim is unaware of these important 
     developments. Section 123 (a) amends Rule 32.1 to direct the 
     government to make a reasonable effort to notify the victim 
     of the impending revocation hearing, and to notify the victim 
     of his or her right to attend the hearing and address the 
     court.
       Section 123(b) provides a timetable for the implementation 
     of the amendments to Rule 32.1, taking into consideration the 
     recommendations of the United States Judicial Conference.

[[Page 8033]]


     Subtitle C. Amendment to Federal Rules of Evidence
       Sec. 131. Enhanced Right to Be Present At Trial
       Section 131 amends Rule 615 of the Federal Rules of 
     Evidence (Witness Sequestration) to establish a statutory 
     right for crime victims to attend court proceedings, 
     including trials. Currently, victims are routinely prevented 
     from being present at trials, except during their own 
     testimony. Section 131(a) amends Rule 615 to permit crime 
     victims to attend trials and other court proceedings, unless 
     the court makes a finding that the testimony of the person 
     will be materially affected by hearing the testimony of other 
     witnesses, and the material effect will result in unfair 
     prejudice to any party, or that due to large numbers of 
     victims or family members of victims who may be called as 
     witnesses, permitting attendance in the courtroom when 
     testimony is being heard is not feasible.
       Section 131(b) provides a timetable for the implementation 
     of the amendment to Rule 615, taking into consideration the 
     recommendations of the United States Judicial Conference.
     Subtitle D. Remedies for Noncompliance
       Sec. 141. Remedies for Noncompliance
       Section 141 establishes a mechanism for addressing 
     violations of the newly created statutory rights of crime 
     victims. Section 141(a) clarifies that no party can file a 
     civil action for damages or injunctive relief against the 
     U.S., any employee of the U.S., any officer of the court, nor 
     any entity contracting with the U.S., for failure to comply 
     with any amendment in this Act.
       Section 141(b) directs the Attorney General and the Chair 
     of the U.S. Parole Commission to establish a workable 
     regulatory scheme that will permit the effective 
     administrative enforcement of victims rights. These 
     regulations must contain disciplinary sanctions, including 
     termination for employees of the Department of Justice who 
     willfully violate or refuse to comply with Federal provisions 
     pertaining to the treatment of victims of crime. These 
     regulations must also include an administrative procedure 
     through which formal complaints with the Department of 
     Justice alleging violations of this title can be filed. Under 
     the proposed administrative scheme a complainant is 
     prohibited from recovering any monetary damages against the 
     United States.
       This subsection states that the Attorney General is the 
     ultimate arbiter of the complaint, and there will be no 
     judicial review of the final decision of the Attorney 
     General.


                TITLE II--VICTIM ASSISTANCE INITIATIVES

       Title II contains a series of provisions designed primarily 
     to assist victims of state crime, and to ensure that victims 
     participate in the criminal process to the maximum extent.
       Sec. 201. Increase in Victim Assistance Personnel
       Section 201 authorizes to be appropriated such sums as may 
     be necessary to enable the Attorney General to provide grants 
     through the Office of Victims of Crime (OVC) to qualified 
     private entities to fund 50 victim-witness advocate 
     positions, who can assist victims of state crimes.
       This section also authorizes to be appropriated such sums 
     as may be necessary to enable the Attorney General to hire 50 
     full-time (or full-time equivalent) employees to serve as 
     victim-witness advocates to provide assistance to victims of 
     any federal criminal offense investigation.
       Sec. 202. Increased Training for State and Local Law 
           Enforcement, State Court Personnel, and Officers of the 
           Court to Respond Effectively to the Needs of Victims of 
           Crime
       Section 202 provides that funds collected pursuant to the 
     False Claims Act (31 U.S.C. 3729-3731) may be used by OVC to 
     make grants to States, units of local government, and 
     qualified private entities, to provide training and 
     information to prosecutors, judges, law enforcement officers, 
     probation officers, and other officers and employees of 
     Federal and State court in order to assist them in responding 
     effectively to the needs of victims of crime.
       Sec. 203. Increased Resources for State and Local Law 
           Enforcement Agencies, Courts, and Prosecutors' Offices 
           to Develop State-of-the-Art Systems for Notifying 
           Victims of Crime of Important Dates and Developments
       Section 203 amends subtitle A of title 23 of the Violent 
     Crime Control and Law Enforcement Act of 1994 (P.L. 103-322; 
     108 Stat. 2077) by authorizing to be appropriated such sums 
     as may be necessary to OVC to fund grants to State and local 
     prosecutors' offices, State courts, county jails, State 
     correctional institutions, and qualified private entities, to 
     develop and implement state-of-the-art systems for notifying 
     victims of crime of important dates and developments relating 
     to the criminal proceedings at issue.
       Section 203 authorizes funds collected pursuant to the 
     False Claims Act (31 U.S.C. 3729-3731) to be used for these 
     grants.
       This section also amends Section 310004(d) of the Violent 
     Crime Control and Law Enforcement Act of 1994 to permit funds 
     from the Violent Crime Reduction Trust Fund to be used for 
     grants outlined in this section.
       Sec. 204. Pilot Programs to Establish Ombudsman Programs 
           for Crime Victims
       Section 204 authorizes pilot programs designed to establish 
     innovative programs to assist victims of both federal and 
     state crime in vindicating their rights. All too frequently, 
     victims do not have a sufficient voice during the criminal 
     process. Some localities have responded to this problem by 
     creating ombudsman programs wherein independent officers are 
     established whose function is to represent the victim's 
     interests. These ombudsmen will educate prosecutors and 
     judges as to their victim-related responsibilities, and will 
     provide helpful guidance and support to crime victims 
     themselves. These programs have shown considerable promise in 
     a number of cities.
       Section 204 authorizes the creation of these ombudsman 
     programs. Subsection (a) sets out definitions of the terms 
     ``director,'' ``office,'' ``qualified private entity,'' 
     ``qualified unit of State or local government,'' and ``VOICE 
     Centers'' for the purposes of this section.
       Subsection (b) provides that within a year after the 
     enactment of this Act, the Attorney General (acting through 
     the Director of OVC) will establish pilot programs to operate 
     Victim Ombudsman Information Centers (``VOICE'' Centers) in 
     Iowa, Massachusetts, Ohio, Tennessee, Utah, and Vermont.
       This subsection also authorizes the Attorney General to 
     enter into agreement with and provide for a grant to assist a 
     qualified private entity or unit of State or local government 
     in carrying out the pilot program. The agreement shall 
     specify that the VOICE Center shall, excepting applicable 
     requirements of this section, operate independently of OVC, 
     and OVC shall have no supervisory or decision making 
     authority over the day-to-day operations of a VOICE Center. 
     The purpose of this provision is to ensure that VOICE centers 
     operate independently.
       Subsection (c) provides that the mission of each VOICE 
     Center shall be to ensure that victims of Federal or State 
     crimes are fully appraised of the rights of victims and that 
     the victims participate in the criminal justice process to 
     the fullest extent of the law.
       This subsection also sets out the duties of the VOICE 
     Centers. The duties include providing information to victims 
     concerning their right to participate in the criminal justice 
     process; identifying and responding to situations in which 
     rights of victims of crime may have been violated; attempting 
     to rectify violations of victims' rights; educating police, 
     prosecutors, court officials, and employees of jails and 
     prisons about the rights of victims; and taking measures to 
     ensure victims are treated with respect, dignity, and 
     compassion during the justice process.
       Subsection (d) authorizes OVC to provide technical 
     assistance to each VOICE Center. Each pilot VOICE Center 
     shall submit an annual report to the Director of OVC 
     detailing the activities of the VOICE Center and the 
     strategic plan for the following year.
       Subsection (e) provides that within two years of each VOICE 
     Center's pilot program establishment, the Comptroller General 
     of the U.S. shall review their effectiveness in carrying out 
     their mission and duties as described in subsection (c). This 
     subsection also requires that within two years of each VOICE 
     Center's pilot program establishment, the Attorney General 
     shall have private entities study the effectiveness of the 
     VOICE Centers in carrying out their mission and duties as 
     described in subsection (c).
       Subsection (f) states that the pilot program shall 
     terminate 4 years after the date of enactment of the Act. If 
     the Attorney General determines that any of the pilot 
     programs should be renewed for an additional period, they may 
     be renewable for up to two years.
       Subsection (g) authorizes an amount not to exceed 
     $5,000,000 of the amounts collected pursuant to the False 
     Claims Act to be used by the Director of OVC to make grants 
     to fund the pilot programs.
       Sec. 205. Amendments to Victims of Crime Act of 1994
       Section 205 provides for various improvements in the 
     program of federal support for victim assistance and 
     compensation under the Victims of Crime Act.
       Subsection (a) authorizes the receipt of private donations 
     to the Crime Victims Fund. It also provides that unobligated 
     funds transferred to the judicial branch for the 
     establishment of the (now defunct) National Fine Center are 
     to be returned to the Crime Victims Fund and may be used for 
     the benefit of federal crime victims. Moreover, it requires 
     states to return to the Crime Victims Fund amounts for which 
     they are reimbursed under subrogation provisions as a result 
     of third party payments to victims, or where the state has 
     received supplemental funding for incidents of terrorism or 
     mass violence. This will help replenish the funds available 
     for assistance to victims of terrorism and mass violence.
       Subsection (b) changes the minimum threshold for the annual 
     grant that the Director shall make from the Fund to an 
     eligible crime victim compensation program. The change is 
     from 40 percent of the amounts awarded during the preceding 
     fiscal year to 60 percent.

[[Page 8034]]

       Subsection (b) also enhances authority and support for 
     demonstration projects, training, technical assistance, and 
     program evaluation, and clarifies that compensation will not 
     be denied to any victim because the identity of the offender 
     was not determined beyond a reasonable doubt in a criminal 
     trial or because criminal charges were not brought against 
     the offender.
       Subsection (c) clarifies that the Director may enter into 
     cooperative agreements in addition to making grants; that 
     such cooperative agreements or grants may be for evaluation 
     purposes and training and technical assistance that address 
     the significance of and effective delivery strategies for 
     providing long-term psychological care; that the Director may 
     use funds for fellowships, clinical internships, and programs 
     of training and special workshops for the presentation and 
     dissemination of information resulting from demonstrations, 
     surveys, and special projects. Subsection (c) also tightens 
     some of the definitions in the Victims of Crime Act.
       Sec. 206. Services for Victims of Crime and Domestic 
           Violence
       Section 206 directs that a specified statute not be 
     construed to prohibit a recipient from using funds derived 
     from a source other than the Legal Services Corporation to 
     provide related legal assistance to any person with whom an 
     alien has a relationship covered by the domestic violence 
     laws of the State in which the alien resides or in which an 
     incidence of violence occurred.
       Sec. 207. Pilot Program to Study Effectiveness of 
           Restorative Justice Approach on Behalf of Victims of 
           Crime
       Section 207 authorizes the use of funds collected under the 
     False Claims Act by OVC to make grants to States, units of 
     local government, and qualified private entities for the 
     establishment of pilot programs that implement balanced and 
     restorative justice models.
       Sec. 208. Victims of Terrorism
       Section 208 clarifies the intent of the antiterrorism 
     amendment to the Victims of Crime Act by enabling OVC to 
     assist the victims of terrorist acts or mass violence 
     occurring outside the United States and authorizing it to 
     provide funding directly to non-profits and other Federal 
     agencies, medical and mental health organizations and others 
     in response to such victims' needs.
       Section 208 will also enable OVC to provide assistance to 
     the victims of terrorist acts or mass violence occurring 
     prior to the passage of the Victims of Crime Act, but on or 
     after December 20, 1989. This will allow OVC to assist the 
     family members of those killed in the bombing of Pan Am 103. 
     These family members reside in various states around the 
     country including Alabama, California, Colorado, Connecticut, 
     Hawaii, Illinois, Maryland, Massachusetts, Michigan, 
     Minnesota, Mississippi, New Hampshire, New Jersey, New York, 
     Ohio, Oregon, Pennsylvania, South Carolina, Texas, Virginia, 
     Washington, and West Virginia.

  Mr. KENNEDY. Mr. President, today, Senator Leahy and I are 
introducing the Crime Victims Assistance Act. For too long, our 
criminal justice system has neglected the hundreds of thousands of 
victims of crime whose lives are shattered by violence or threats of 
violence each year.
  Clearly, the rights of victims deserve better from our criminal 
justice system. Too often, the system does not provide adequate relief 
for victims of crime. They are not given basic information about their 
case--such as the status of the case, scheduling changes in court 
proceedings, and notice of a defendant's arrest, bail status and 
release from prison.
  Victims deserve to know about their case. They deserve to know about 
hearings and other court proceedings. They deserve to know when their 
assailants are being considered for parole. And they certainly deserve 
to know when their attackers are released from incarceration.
  But there is a right way and a wrong way to protect victims' rights. 
The wrong way is to amend the Constitution. One of the guiding 
principles that has served the nation well for two hundred years is 
that if it is not necessary to amend the Constitution, it is necessary 
not to amend it.
  We have amended the Constitution only 17 times in the two centuries 
since the adoption of the Bill of Rights. We should consider such 
amendments only in rare instances, when the enactment of a statute is 
clearly inadequate.
  The right way to protect victims' rights is by statute, not by 
constitutional amendment. One of the most obvious provisions of such a 
statute is additional resources for courts and prosecutors. These 
resources can be used to establish better notification, provide better 
training to deal with victims' needs, and to take all the other steps 
required to see that the criminal justice system deals fairly with the 
victims of crime. If Congress is truly committed to victims rights, we 
can act quickly by statute.
  Senator Leahy and I are proposing a victims rights statute--not a 
constitutional amendment, because we believe it accomplishes the needed 
goals. It provides protection for victims now--this year. We do not 
have to wait for a constitutional amendment that may take years for the 
States to ratify.
  Chief Justice Rehnquist also opposes amending the Constitution. He 
has specifically stated that a statute, rather than a constitutional 
amendment, ``would have the virtue of making any provisions in the bill 
which appeared mistaken by hindsight to be amended by a simple act of 
Congress.''
  Crime victims must be treated with dignity, compassion and 
understanding. Being victimized by crime is traumatic enough. We must 
do all we can to see that victims of crime are not victimized again by 
the criminal justice system.
  At the federal level, the system has become more victim friendly. I 
am proud to have sponsored the Sentencing Reform Act of 1994, which 
vastly expanded the authority of the courts to order defendants to pay 
restitution to the victims. Subsequent laws have given victims the 
right to be heard at sentencing.
  This legislation we are introducing today assures victims of a 
greater voice in decisions on the detention and prosecution of 
criminals.
  It contains a series of provisions to assist victims of state crimes, 
and to ensure that victims participate in the criminal justice process 
to the maximum extent. For example, it provides grants to fund victim-
witness advocate positions. It provides training for judges, 
prosecutors, and law enforcement. It establishes our ombudsman 
programs.
  Legislation on victims' rights deserves high priority in this 
Congress. I urge the Senate to act swiftly to accomplish the goal we 
share of genuine protections for victims rights.
      By Mr. LUGAR:
  S. 935. A bill to amend the National Agricultural Research, 
Extension, and Teaching Policy Act of 1977 to authorize research to 
promote the conversion of biomass into biobased industrial products, 
and for other purposes; to the Committee on Agriculture, Nutrition, and 
Forestry.


          NATIONAL SUSTAINABLE FUELS AND CHEMICALS ACT OF 1999

 Mr. LUGAR. Mr. President, I rise to introduce The National 
Sustainable Fuels and Chemicals Act, with the goal of advancing 
biotechnologies likely to offer outstanding benefits in terms of 
strategic security, reduction of greenhouse gases and healthier rural 
economies.
  At the heart of the National Sustainable Fuels and Chemicals Act is a 
novel research Initiative, jointly administered by the Secretary of 
Agriculture and the Secretary of Energy, that authorizes research for 
the purpose of overcoming technical barriers to low cost biomass 
conversion and gives priority funding to consortia composed of 
technical experts from academia, national laboratories, Federal 
research agencies and industry. By enhancing creative and imaginative 
approaches toward biomass processing, the Sustainable Fuels and 
Chemicals Research Initiative will serve to develop the next generation 
of advanced technologies making possible low cost biobased industrial 
products.
  Innovative in both purpose and structure, the Initiative will promote 
integrated research partnerships as the best means of overcoming 
technical challenges that span multiple academic disciplines while also 
leveraging scarce Federal discretionary spending. 49 million dollars 
per annum is proposed for the Sustainable Fuels and Chemicals Research 
Initiative; funding is authorized for six years, through 2005. Given 
the potential benefits in improved national security, rural development 
and greenhouse gas reductions, this expenditure represents an 
investment in America's future and is in line with recommendations from 
a report of the President's Committee of

[[Page 8035]]

Advisors on Science and Technology (PCAST).
  The legislation will also coordinate and focus Federal research in 
cellulosic biomass processing through creation of the Sustainable Fuels 
and Chemicals Board consisting of senior representatives from the 
National Science Foundation, the Environmental Protection Agency, the 
Department of the Interior and the White House Office of Science and 
Technology Policy. Co-chaired by designees of the Secretary of 
Agriculture and Secretary of Energy, the Board shall coordinate 
research, development and demonstration activities relating to biobased 
industrial products between the Departments of Energy and Agriculture 
which are the two principal agencies for biotechnology research on 
fuels, chemicals and power. The Board will also serve to coordinate 
research activities across the many Federal agencies that are involved 
in research, regulation and policy formulation of fuels, commodity 
chemicals and power.
  To advise the Secretary of Agriculture and Secretary of Energy on the 
technical focus and direction of the request for proposals issued under 
the research Initiative, a Sustainable Fuels and Chemicals Technical 
Advisory Committee is established. Modeled on the National Defense 
Sciences Board, the Advisory Committee consists of experts from 
academia, prominent engineers and scientists, representatives from 
commodity trade organizations and environmental or conservation groups. 
As an independent panel of technical experts, the Sustainable Fuels and 
Chemicals Technical Advisory Committee will serve an important role in 
the strategic planning and oversight of research carried out under the 
Initiative.
  The case for promoting technology that will supply fuels, notably 
ethanol, chemicals and power from cellulosic biomass can be made 
independently of whether the world will continue to enjoy cheap oil. 
However, a wealth of scientific data indicates both that the world's 
supply of conventional oil is nearly half exhausted and that with each 
passing year, the demand for petroleum-derived energy increases. 
History gives us a clear warning that individual oil wells, oil fields, 
and national petroleum outputs have all shown a decline in production 
rates when the level of reserves reaches 50 percent. Balanced against 
both such `common sense' and Malthusian theory are optimists, including 
the late economist Julian Simon, who uses energy supplies as one 
example when arguing that natural resources have become more available 
rather than more scarce.
  I would suggest that cellulosic biomass offers a unique opportunity 
for consensus between these seemingly unalterable opposing views. No 
longer is the debate centered on the delicate political and 
international issue of how best to divide the shrinking pie of world 
resources. Rather, application of the limitless supply of human 
ingenuity will be used to create a new and sustainable resource. In 
this regard, nature offers us the hint of a solution by demonstrating 
its own methods for harnessing power from the sun, nutrients in the 
soil and water, in support of a vast array of plant life.
  Following nature's elegant example, engineers and scientists have 
developed biotechnologies capable of breaking down nearly any form of 
plant, tree or grass into their constituent chemical building blocks, 
principally in the form of complex sugars. From this intermediate step, 
a wide variety of biobased industrial products including feed, fuels, 
chemicals, materials and power can be produced. With this capability, 
plants, trees, grasses and agricultural residues assume a new 
significance as a potential source of biobased industrial products. 
Significantly, cellulosic biomass is the only foreseeable sustainable 
source of organic fuels, chemicals and materials that find ubiquitous 
use in any modern economy.
  Consider that biobased industrial chemicals can provide functional 
replacements for essentially all organic chemicals currently derived 
from petroleum, and have clear potential for product life cycles that 
are much more environmentally friendly than their fossil fuel 
counterparts. The new cellulosic conversion technology under 
development will contribute towards growth of what is now a fledgling 
industry centered on biobased products--including chemicals, 
lubricants, plastics, adhesives and building materials--with a market 
worth an estimated $300 billion per year in its infancy.
  Biobased fuels such as ethanol have clear potential to be 
sustainable, low-cost and high performance, are compatible with both 
current and future transportation systems, and provide near zero net 
greenhouse gas emissions. The impact of bioethanol on greenhouse gas 
emissions is particularly significant because the transportation sector 
accounts for one-third of the total greenhouse gas emissions. Of the 
many contributing factors to possible climate change, the 
transportation sector is our most difficult challenge because of the 
ubiquitous dependence on greenhouse gas producing fossil fuels. 
Cellulosic ethanol, a renewable fuel derived from grasses, plants, 
trees and waste materials, offers a positive long-term approach to the 
problem of global warming that does not assume a shift from the 
automobile culture or increased costs for American employers and 
consumers.
  Cellulosic ethanol is a versatile, liquid fuel and consequently will 
be able to use much of the existing infrastructure built over the last 
century in support of gasoline and internal combustion engines. The 
compatibility of water with biomass derived products, including 
ethanol, is an important environmental consideration and a powerful 
demonstration of green chemistry. As my friend Jim Woolsey is fond of 
saying, ``If a second Exxon Valdez filled with ethanol ran aground off 
Alaska, it would produce a lot of evaporation and some drunk seals.''
  By providing farmers of the world the possibility of additional 
commodity products, whether dedicated crops or income from collection 
of agricultural residues, biomass processing can lead to healthier 
rural economies. A major strength of the new technologies for breaking 
down cellulosic biomass is that almost any type of plant, tree, or 
agricultural waste can be used as a source of fuel. This high degree of 
flexibility allows farmers the possibility of a cash crop simply by 
collecting their agricultural wastes. Local crops that enrich the soil, 
prevent erosion and improve local environmental conditions can be 
planted and then harvested for fuel. My firm belief is that innovations 
in biotechnology enabling the co-production of food, fuel, chemicals 
and materials from the sustainable supply of cellulosic biomass, are 
vital to the future of agriculture.
  While undertaking this effort, I remain mindful that biofuels must be 
produced in ways that enhance overall environmental quality. Sound 
land-use policies must be followed to protect wildlife habitat and 
biological diversity concerns. But professional land-use techniques 
should readily accomplish this.
  Providing an alternative fuel that will power the internal combustion 
engine of the automobile will help reduce our dependence on Middle 
Eastern oil without necessitating a rebuilding of the massive 
infrastructure built in support of gasoline. Reliance on the unstable 
states of the Middle East adversely impacts American strategic 
security, while massive oil imports skew our balance of payments. With 
the need for affordable energy rising with increasing population, and 
the transportation sector fueled almost exclusively by fossil fuels, 
the Middle East will control something approaching three-quarters of 
the world's oil in the coming century, providing that unstable region 
with a disproportionate leverage over diplomatic affairs. At a time 
when the United States confronts an ill-defined and confused drama of 
events on the international stage, including an increasingly assertive 
China, and nuclear and missile technology proliferation to North Korea, 
it seems clear we should dedicate a relatively small amount of money 
toward research that could lead to a revolution in the way we produce 
and consume energy. Or as presented by a distinguished panel of 
scientists and industrial experts in a recent PCAST report, ``. . . the 
security of the

[[Page 8036]]

United States is at least as likely to be imperiled in the first half 
of the next century by the consequences of inadequacies in the energy 
options available to the world as by inadequacies in the capabilities 
of U.S. weapons systems.'' The report succinctly concludes, ``It is 
striking that the Federal government spends about twenty times more R&D 
money on the latter problem than on the former.''
  Before we are able to reap the significant benefits offered by 
biobased industrial products, the cost of the new conversion technology 
must be significantly reduced. Research and development is the only 
systematic means for creating the innovations and technical 
improvements that will lower the costs of biomass processing. Given the 
relatively short-term horizon characteristic of private sector 
investments, and because many benefits of biomass processing are in the 
public interest, industry is ill-equipped to fund the necessary 
fundamental research that will result in cost effective technologies 
for biomass conversion.
  Research activities carried out by the Department of Agriculture, 
Department of Energy and other Federal agencies are a principal reason 
for much of the progress witnessed in biomass processing and underscore 
the future promise if new technology is developed. Nonetheless, 
coordination among the Federal agencies is disjointed and the research 
tends to be driven by institutional missions rather than by an 
overarching strategy to develop cost-effective technologies for biomass 
conversion. The National Sustainable Fuels and Chemicals Act is 
designed to overcome these shortcomings and raise the level of the 
Federal commitment to biotechnologies that are already demonstrating 
potential as powerful new alternatives to the traditional practices of 
the past.
  In this effort, I am asking for the support of President Clinton and 
Vice President Gore who have indicated their commitment to the 
development of sustainable resources. On this issue we can develop a 
consensus for undertaking research that will improve our national 
security and balance of payments, reduce greenhouse gas emissions and 
strengthen rural economies in America and around the world. Working 
together we can promote the type of innovation-focused research 
essential for improvements in the utilization of America's biomass 
resource. It is my firm belief that future Americans will enjoy a rich 
return on our investment in the promise of a green revolution.

                          ____________________