[Congressional Record (Bound Edition), Volume 146 (2000), Part 13]
[Senate]
[Pages 18919-18936]
[From the U.S. Government Publishing Office, www.gpo.gov]



          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. SPECTER:
  S. 3086. A bill to permit the televising of Supreme Court 
proceedings; to the Committee on the Judiciary.


                opening the supreme court to television

  Mr. SPECTER. Mr. President, I have sought recognition today to 
introduce legislation on behalf of Senator Biden and myself, a bill 
which, succinctly stated, would provide the following: The Supreme 
Court of the United States shall permit television coverage of all open 
sessions of the Court unless the Court decides by a vote of the 
majority of Justices that allowing such coverage in a particular case 
will constitute a violation of the due process rights of one or more of 
the parties before the Court.
  I will summarize that lengthy statement because of time limitations. 
The statement contains the citations of the cases referred to and the 
specific quotations which I shall cite.
  The purpose of this legislation is to open to public view what the 
Supreme Court of the United States does in rendering important 
decisions. It is grounded on the proposition that since the Supreme 
Court of the United States has assumed the power to decide the cutting-
edge questions on public policy today and has in effect become 
virtually a ``super legislature'' in taking on the decisions on these 
public policy issues, that the public has a right to know what the 
Supreme Court is doing, and that right would be substantially enhanced 
by televising the oral arguments of the Court so that the public would 
be able to see and hear the kinds of issues which the Court is 
deciding. The public would then have an insight into those issues to be 
able to follow what the Court decides after the due course of the 
Court's deliberations.
  In a very fundamental sense, the televising of the Supreme Court has 
been implicitly recognized--perhaps even sanctioned--by a 1980 decision 
of the Supreme Court of the United States in a case captioned Richmond 
Newspapers v. Virginia, where the Supreme Court noted that a public 
trial belongs not only to the accused, but to the public and the press 
as well; and that people now acquire information on court procedures 
chiefly through the print and electronic media.
  That decision, in referencing the electronic media, perhaps might be

[[Page 18920]]

said to anticipate televising court proceedings, although I do not mean 
to suggest that the Supreme Court is in agreement with this 
legislation. It might be appropriate to note at this juncture that the 
Court could, on its own motion, televise its proceedings but has chosen 
not to do so, which presents, in my view, the necessity for legislation 
on this subject.
  If one goes to the chambers of the Supreme Court, which are right 
across the green here in the Capitol complex, one may enter and observe 
the Court's arguments because they are public. Newspaper reporters are 
permitted to be in the Court. No cameras are permitted in the Court, of 
even still pictures, so when television wishes to characterize an 
argument, they have to send in an artist to have an artist's 
renderings.
  When I argued the case of the Navy Yard back in 1964, the Court 
proceedings were illustrated by an artist's drawings. But in the year 
2000, when the public gets a substantial portion, if not most, of its 
information from television, the availability strictly to the print 
media, is insufficient to give the public a real idea as to what is 
going on in the Supreme Court of the United States.
  The Supreme Court has traditionally had an agenda. It is really 
nothing new. The Warren Court vastly expanded criminal rights. In the 
year 2000, I think no one would question at least some of the Warren 
Court's decisions, saying that anybody who is being prosecuted in a 
criminal proceeding has a right to counsel. It is really surprising to 
note that before 1963, the case of Gideon v. Wainwright, the defendant 
in a criminal case did not have a right to counsel except in murder 
cases.
  There is no doubt that the Supreme Court of the United States in the 
1930s had an agenda in striking down New Deal legislation. And then, in 
a historic move, President Franklin Delano Roosevelt, an enormously 
popular President in the mid- to late 1930's, very unhappy about the 
Supreme Court's activism in striking down New Deal legislation by five 
to four decisions--President Roosevelt suggested packing the Court by 
adding six additional Justices. There was quite a public reaction 
adverse to that proposal. Perhaps the Supreme Court of the United 
States had more public attention at that particular time than at any 
other time in its history.
  In the face of what was happening, a Supreme Court Justice, Owen J. 
Roberts, who happened to be from Philadelphia, my hometown, decided to 
change his position and to support and hold constitutional the New Deal 
legislation leading to the famous phrase ``a switch in time saves 
nine,'' from the old adage about ``a stitch in time saves nine.'' The 
switch by Supreme Court Justice Owen Roberts, it is said, saved the 
nine-person constituency of the Supreme Court.
  The Rehnquist Court, I submit, is unusually activist in pursuing its 
agenda. The Court has stricken acts of Congress, saying:

       No Congressman or Senator purported to present a considered 
     judgment,

  Or striking acts of Congress saying there was a:

       lack of legislative attention to the statute at issue,

  Or striking an act of Congress saying the legislation was:

       * * * an unwarranted response to perhaps an inconsequential 
     problem,

  Or declaring an act of Congress unconstitutional saying:

       Congress had virtually no reason to believe [that the 
     statute was well founded.]

  There is no effort here to challenge the authority of the Supreme 
Court of the United States to have the final word. That has been 
established since Marbury v. Madison in 1803. I believe it is necessary 
that the Supreme Court of the United States have the final word on 
interpreting the Constitution and beyond that on saying what is a 
constitutional question. But given the breadth of the Court's authority 
and given the sweeping scope of what the Court is doing, the point is 
that there ought to be public knowledge and there ought to be a public 
response. Because I think it is fair to say that the Court is aware and 
does watch the public response, and it ought to really be a factor in 
whatever the Court decides to do--again, recognizing that the Court has 
the final say.
  In June of 1999, the Supreme Court curtailed congressional authority 
in favor of the rights of States to sovereign immunity on patents and 
copyrights, not withstanding the express constitutional grant of 
authority to Congress to regulate patents and copyrights. Those cases 
led former Solicitor General Walter Dellinger, formerly a professor and 
a leading constitutional scholar, to describe these cases as:

       * * * one of the three or four major shifts in 
     constitutionalism we have seen in the last three centuries.

  Those particular cases were subject to very substantial criticism by 
Professor Rebecca Eisenberg of the University of Michigan Law School, 
commenting on Florida Prepaid Postsecondary Education v College Savings 
Bank:

       * * * the decision makes no sense,

  Asserting that it arises from a:

       * * * bizarre States' rights agenda that really has nothing 
     to do with intellectual property.

  The Court's decisions have moved, as I have noted, really onto the 
cutting edge of so many of the critical issues which are matters of 
great national concern. The Court has decided issues from birth to 
death and the vital issues in between, making the decision on the 
constitutional right to an abortion; making decisions on how the death 
penalty will be imposed; making decisions on the questions of freedom 
of religion, as illustrated by the case of City of Boerne v. Flores, 
where the Court struck down the Religious Freedom Restoration Act.
  Freedom of religion, of online speech, in Reno v. ACLU, the Court 
struck down two provisions of the Communications Decency Act of 1998; 
Prince v. United States, the Court, by a 5-to-4 decision, reversed some 
six decades of firmly established constitutional authority on the 
supremacy of Federal laws over States under the commerce clause. And, 
in the Lopez case in 1995, the Supreme Court of the United States 
invalidated congressional authority, which had been intact for some 60 
years under the commerce clause.
  So we have seen the expansion of the authority of the Supreme Court 
of the United States in so many lines, really, taking on the aura and 
the perspective of a superlegislature.
  Justice Felix Frankfurter perhaps anticipated the day when the 
Supreme Court arguments would be televised when he said that he longed 
for a day when:

       The news media would cover the Supreme Court as thoroughly 
     as it did the World Series, since the public confidence in 
     the judiciary hinges on the public's perception of it, and 
     that perception necessarily hinges on the media's portrayal 
     of the legal system.

  It is interesting to note that the columns of the Senate match up 
exactly with the columns of the Supreme Court of the United States.
  In the early deliberations on the Constitution, there were proposals 
that Supreme Court Justices ought to be appointed by the Senate. I am 
not sure quite how that would have worked out given our large groupings 
and how we would go about making those decisions, but that was once 
thought about.
  There was a constitutional amendment proposed that would have allowed 
Supreme Court decisions to be overruled by a two-thirds vote of the 
Senate, a proposal which I think would have been very unwise and did 
not get very far.
  The Senate does have the constitutional authority on confirmation of 
Supreme Court Justices, perhaps our most important function as so many 
major decisions have been decided by a single vote on 5-4 decisions: 79 
such decisions in the past 5 years; 20 such decisions in the last term 
of the Court.
  The Court has been a strong point in our historical development, but 
as the Court has expanded into areas traditionally reserved for 
Congress, functioning virtually as a superlegislature, without in any 
way challenging the independence of the Court, the independence of the 
Federal judiciary, I do

[[Page 18921]]

believe it is appropriate for the Congress to speak on the operation of 
the Court.
  The Congress has the authority to establish the number of Justices so 
that if the Congress chose, we could expand the number beyond nine or 
curtail it. The Congress has established the number six as a quorum for 
the Court. The Congress has the authority to establish the jurisdiction 
of the Supreme Court of the United States and, in the landmark case of 
Ex parte McCardle, decided that the jurisdiction of the Court could be 
curtailed even on constitutional grounds. Frankly, I do not think that 
1868 decision would stand today as to the authority of the Congress to 
curtail the jurisdiction of the Court on constitutional grounds, but 
during confirmation proceedings when those questions are asked, the 
nominees choose to leave that as an open question. It does remain an 
open question.
  Televising, of course, is vastly different and a far range from the 
issue of jurisdiction. The Congress of the United States has 
established the time limits for Federal trials under the speedy trial 
limit and has established time limits for consideration of habeas 
corpus cases. So there is ample authority for the Congress to call for 
the opening of the Supreme Court for television.
  Obviously, there are issues of separation of power which I think this 
legislation respects. Obviously, the final decision will be for the 
Court. I do not expect a rush to judgment on this very complex 
proposition, but I do believe the day will come when the Supreme Court 
of the United States will be televised. That day will come, and it will 
be decisively in the public interest so the public will know the 
magnitude of what the Court is deciding and its role in our democratic 
process.
  The public's interest would be significantly promoted by televising 
the proceedings of the Supreme Court of the United States. Given the 
enormous importance of the decisions made by the Court, and the fact 
that so many of these decisions are really public policy choices rather 
than strictly legal decisions, the public deserves as much access as 
possible to the Court's proceedings.
  This proposed legislation to televise sessions of the Supreme Court 
fully respects the authority of the Supreme Court to make the ultimate 
decision on Constitutional questions. It seeks to impose greater 
accountability upon a body which decides so many matters of the 
greatest importance to our country, often by a single vote.
  In the normal course of events, the Supreme Court often renders 
opinions which, at their core, decide cutting-edge issues which are 
really within the legislative domain under the Constitutional doctrine 
of Separation of Powers. In recent years the Supreme Court has 
exaggerated this policy role by explicitly substituting its judgment 
for that of Congress and striking down legislation which it has found 
is not based upon a ``considered judgment.''
  In our Constitutional scheme, who are the justices of the Supreme 
Court to substitute their judgment for that of Congress on these issues 
of public policy? By what right do the Justices decide that Congress 
has not exercised a ``considered judgment''? When it rules on this 
basis, the Court goes far beyond its role as final Constitutional 
arbiter and becomes a super legislature.
  Senator Biden cogently addressed this issue in a July 26, 2000 floor 
statement. After discussing a number of recent Supreme Court opinions 
in which the Court exceeded its authority to strike down laws passed by 
Congress, Senator Biden noted that:

       It is crucial . . . that the American people understand the 
     larger pattern of the Supreme Court's recent decisions and . 
     . . the disturbing direction in which the Supreme Court is 
     moving because the consequences of these may well impact upon 
     the ability of American citizens to ask their elected 
     representatives in Congress to help them solve national 
     problems that have national impact. . . .
       Make no mistake, what is at issue here is the question of 
     power . . . basically whether power will be exercised by an 
     insulated judiciary or by the elected representatives of the 
     people.

  The public has a right to know how, why and what the Court is doing. 
In particular, the deliberations of the Court should be open to the 
sunshine of public scrutiny. Television coverage would be a significant 
step to provide a meaningful opportunity for public to observe and 
understand what the Court is doing.
  Beyond educating the public, enhanced public scrutiny may very well 
have the effect of discouraging judicial activism and overreaching. The 
example of Justice Owen Roberts is instructive. In the mid-1930's, the 
Supreme Court struck down many significant pieces of New Deal 
legislation by votes of 5 to 4. President Roosevelt went to great 
lengths to publicize this episode of judicial activism, culminating in 
his infamous proposal to pack the Supreme Court by adding six new 
members. Notwithstanding FDR's enormous popularity, that proposal 
raised a storm of protest and failed. In the midst of that controversy, 
a swing justice, Owen J. Roberts, shifted his position to support the 
New Deal programs. Accordingly, a majority of the Court then supported 
and upheld New Deal legislation. Justice Robert's change in position 
led to the famous phrase, ``a switch in time saves nine.''
  The current Court broke with sixty years of tradition in curtailing 
Congress's authority under the Commerce Clause in Lopez, which 
invalidated Federal legislation creating gun-free school zones. In June 
1999 in three far-reaching decisions, the Supreme Court curtailed 
Congressional authority in favor of the right of states to sovereign 
immunity on patent, copyright and other intellectual property 
infringement matters. These cases are: College Savings Bank v. Florida 
Prepaid, 527 U.S. 666, Florida Prepaid v. College Savings Bank, 527 
U.S. 627, and Alden v. Maine, 527 U.S. 706.
  The June 1999 patent and copyright infringement cases have been 
roundly criticized by the academicians. Stanford University historian 
Jack Rakove, author of ``Original Meanings'', a Pulitzer Prize winning 
account of the drafting of the Constitution, characterizes Justice 
Kennedy's historical argument in Alden v. Maine as ``strained, even 
silly''.
  Professor Rebecca Eisenberg of the University of Michigan Law School, 
in commenting on Florida Prepaid Postsecondary Education Expense Board 
vs. College Savings Bank, said:

       ``The decision makes no sense'', asserting that it arises 
     from ``a bizarre states' rights agenda that really has 
     nothing to do with intellectual property.

  Harvard Professor Laurence Tribe commented:

       ``In the absence of even a textual hint in the 
     Constitution, the Court discerned from the constitutional 
     `ether' that states are immune from individual lawsuits.'' 
     (These decisions are) ``scary''. ``They treat states' rights 
     in a truly exaggerated way, harking back to what the country 
     looked like before the civil war and, in many ways, even 
     before the adoption of the Constitution.''

  College Savings Bank v. Florida Prepaid 1999 U.S. LEXIS 4375, Florida 
Prepaid v. College Savings Bank 1999 U.S. LEXIS 4376 and Alden v. 
Maine, 1999 U.S. LEXIS 4374.
  In addition to treating the Congress with disdain, the five person 
majority in all three cases demonstrated judicial activism and 
exhibited what can only be viewed as a political agenda in drastically 
departing from long-standing law. Former Solicitor General Walter 
Dellinger described these cases as:

     ``one of the three or four major shifts in constitutionalism 
     we've seen in two centuries.''

  A commentary in the Economist on July 3, 1999 emphasized the Court's 
radical departure from existing law stating:

       ``The Court's majority has embarked on a venture as 
     detached from any constitutional moorings as was the liberal 
     Warren Court of the 1960's in its most activist mood.''

  In its two opinions in College Savings Bank v. Florida Prepaid and 
Florida Prepaid v. College Savings Bank, the Court held that the 
doctrine of sovereign immunity prevents states from being sued in 
Federal court for infringing intellectual property rights. These 
decisions leave us with an absurd and untenable state of affairs. 
Through their state-owned universities and hospitals, states 
participate in the intellectual property marketplace as equals

[[Page 18922]]

with private companies. The University of Florida, for example, owns 
more than 200 patents. Furthermore, state entities such as universities 
are major consumers of intellectual property and often violate 
intellectual property laws when, for example, they copy textbooks 
without proper authorization.
  But now, Florida and all other states will enjoy an enormous 
advantage over their private sector competitors--they will be immune 
from being sued for intellectual property infringement. Since patent 
and copyright infringement are exclusively Federal causes of action, 
and trademark infringement is largely Federal, the inability to sue in 
Federal court is, practically speaking, a bar to any redress at all.
  The right of states to sovereign immunity from most Federal lawsuits 
is guaranteed in the Eleventh Amendment to the constitution, which 
provides that:

       The Judicial Power of the United States shall not be 
     construed to extend to any suit in law or equity, commenced 
     or prosecuted against one of the United States by Citizens of 
     another State, or by Citizens or Subjects of any foreign 
     state.

  It has long been recognized, however, that this immunity from suit is 
not absolute. As the Supreme Court noted in one of the Florida Prepaid 
opinions, the Court has recognized two circumstances in which an 
individual may sue a state:

       First, Congress may authorize such a suit in the exercise 
     of its power to enforce the Fourteenth Amendment--an 
     Amendment enacted after the Eleventh Amendment and 
     specifically designed to alter the federal-state balance. 
     Secondly, a state may waive its sovereign immunity by 
     consenting to suit. College Savings Bank v. Florida Prepaid 
     at 7.

  Congress' power to enforce the Fourteenth Amendment is contained in 
Section Five of the Fourteenth Amendment, which provides that ``The 
Congress shall have the power to enforce, by appropriate legislation, 
the provisions of this article.'' One of the provisions of the 
Fourteenth Amendment, Section One, provides that no State shall, 
``deprive any person of . . . property . . . without due process of 
law.'' Accordingly, Congress has the power to pass laws to enforce the 
rights of citizens not to be deprived of their property--including 
their intellectual property--without due process of law.
  Employing this power under Section 5 of the Fourteenth Amendment, 
Congress passed the Patent Remedy Act and the Trademark Remedy 
Clarification Act in 1992. As its preamble states, Congress passed the 
Patent Remedy Act to ``clarify that States . . . are subject to suit in 
Federal court by any person for infringement of patents and plant 
variety protections.'' Congress passed the Trademark Remedy 
Clarification Act to subject the States to suits brought under Sec. 43 
of the Trademark Act of 1946 for false and misleading advertising.
  In Florida Prepaid v. College Savings Bank, the Court held in a 5 to 
4 opinion that Congress did not validly abrogate state sovereign 
immunity from patent infringement suits when it passed the Patent 
Remedy Act. In an opinion by Chief Justice Rehnquist, the Court 
reasoned that in order to determine whether a Congressional enactment 
validly abrogates the States' sovereign immunity, two questions must be 
answered, ``first, whether Congress has unequivocally expressed its 
intent to abrogate the immunity . . . and second whether Congress has 
acted pursuant to a valid exercise of power.''
  The Court acknowledged that in enacting the Patent Remedy Act, 
Congress made its intention to abrogate the States' immunity 
unmistakably clear in the language of the statute. The Court then held, 
however, that Congress had not acted pursuant to a valid exercise of 
power when it passed the Patent Remedy Act. The Court wrote that 
Congress' enforcement power under the Fourteenth Amendment is 
``remedial'' in nature. Therefore, ``for Congress to invoke Section 5 
it must identify conduct transgressing the Fourteenth Amendment's 
substantive provisions, and must tailor its legislative scheme to 
remedy or preventing such conduct.'' Florida Prepaid v. College Savings 
Bank at 20.
  The Court found that Congress failed to identify a pattern of patent 
infringement by the States, let alone a pattern of constitutional 
violations. The Court specifically noted that a deprivation of property 
without due process could occur only where the State provides 
inadequate remedies to injured patent owners. The Court then observed 
that:

       Congress, however, barely considered the availability of 
     state remedies for patent infringement and hence whether the 
     States' conduct might have amounted to a constitutional 
     violation under the Fourteenth Amendment. . . . Congress 
     itself said nothing about the existence or adequacy of state 
     remedies in the statute or in the Senate Report, and made 
     only a few fleeting references to state remedies in the House 
     Report, essentially repeating the testimony of the witnesses. 
     Florida Prepaid v. College Savings Bank at 27-28.

  Accordingly, the Court concluded that:

       The legislative record thus suggests that the Patent Remedy 
     Act does not respond to a history of widespread and 
     persisting deprivation of constitutional rights of the sort 
     Congress has faced in enacting proper prophylactic Section 5 
     legislation. Instead, Congress appears to have enacted this 
     legislation in response to a handful of instances of state 
     patent infringement that do not necessarily violate the 
     Constitution. Florida Prepaid v. College Savings Bank at 31-
     32.

  Not only is the result of this opinion troubling--that states will 
enjoy immunity from suit--but also by the reasoning which supports this 
result. Here we have a Chief Justice of the Supreme Court choosing to 
ignore an act of Congress because he has concluded that Congress passed 
the legislation with insufficient justification. In essence, the Chief 
Justice is telling us we did a poor job developing our record before 
passing the Patent Remedy Act. As we all know, however, many of us 
support legislation for reasons that don't make it into the written 
record. The record is an important, but imperfect, summary of our 
views. This is why past Courts have been reluctant to discuss 
Congressional motives in this fashion.
  In College Savings Bank v. Florida Prepaid, the Supreme Court decided 
in a 5 to 4 opinion that Trademark Remedy Clarification Act (the 
``TRCA'') was not a valid abrogation of state sovereign immunity. The 
Court, in an opinion by Justice Scalia, noted that Congress passed the 
TRCA to remedy and prevent state deprivations of two types of property 
rights: (1) a right to be free from a business competitor's false 
advertising about its own product, and (2) a more generalized right to 
be secure in one's business interests. The Court contrasted these 
rights with the hallmarks of a protected property interest, namely the 
right to exclude others.
  Justice Scalia reached the surprising conclusion that protection 
against false advertising secured by Section 43(a) of the Lanham Act 
does not implicate property rights protected by the due process clause 
so that Congress could not rely on its remedies under Section 5 of the 
14th Amendment to abrogate state sovereign immunity. If conducting a 
legitimate business operation with protection from false advertising is 
not a ``property right'', it is hard to conceive of what is business 
property. That Scalia rationale shows the extent to which the Court has 
gone to invalidate Congressional enactments.
  The Court then discussed whether Florida's sovereign immunity, though 
not abrogated, was voluntarily waived. Here, the Court expressly 
overruled its prior decision in Parden v. Terminal R. Co. 377 U.S. 184 
(1964) and held that there was no voluntary waiver. In Parden, the 
Court had created the doctrine of constructive waiver, which held that 
a state could be found to have waived its immunity to suit by engaging 
in certain activities, such as voluntary participation in the conduct 
Congress has sought to regulate. Since Congress has sought to regulate 
interstate commerce, then a state which participated in interstate 
commerce by registering and licensing patents would be held to have 
voluntarily waived its immunity to a patent infringement suit. By 
overruling Parden, however, the Court held that a voluntary waiver of 
sovereign immunity must be express. Florida made no such express waiver 
of its sovereign immunity.
  In other relatively recent cases, the Court has gone out of its way, 
almost on a personal basis, to chastise and undercut Congress. The case 
of Sable v.

[[Page 18923]]

FCC, 492 U.S. 115 (1989) provides a striking example of this trend. In 
Sable, the Court struck down a ban on ``indecent'' interstate telephone 
communications passed by Congress in 1988. In rejecting this provision, 
the Court focused on whether there were constitutionally acceptable 
less restrictive means, short of a total ban, to achieve its goal of 
protecting minors. The Court then declared, in unusually dismissive and 
critical language, that Congress has not sufficiently considered this 
issue:

     aside from conclusory statements during the debates by 
     proponents of the bill . . . that under the FCC regulations 
     minors could still have access to dial-a-porn messages, the 
     congressional record presented to us contains no evidence as 
     to how effective or ineffective the FCC's most recent 
     regulations were or might prove to be.
       The bill that was enacted . . . was introduced on the 
     floor. . . . No Congressman or Senator purported to present a 
     considered judgement with respect to how often or to what 
     extent minors could or would circumvent the rules and have 
     access to dial-a-porn messages. (Emphasis Added)

  If a member of the Congress made a judgment, by what authority does 
the Supreme Court superimpose its view that it wasn't a ``considered 
judgment''? A fair reading of the statements from the floor debate on 
this issue undercuts the Court's disparaging characterization of this 
debate. For example, Representative Tom Bliley of Virginia gave a 
rather detailed and persuasive discussion of how he concluded that a 
legislative ban was necessary. Mr. Bliley noted that in 1983, Congress 
first passed legislation which required the FCC to report regulations 
describing methods by which dial-a-porn providers could screen out 
underage callers. Mr. Bliley then walks us through the repeated failure 
of the FCC to pass regulations which could withstand judicial scrutiny. 
Finally Mr. Bliley notes that:

     it has become clear that there was not a technological 
     solution that would adequately and effectively protect our 
     children from the effect of this material. We looked for 
     effective alternatives to a ban--there were none.

  The Court repeats its critique of Congressional action in the case of 
Reno v. ACLU, 521 U.S. 844 (1997). Here, the Court struck down the 
Communications Decency Act, which prohibited transmission to minors of 
``indecent'' or ``patently offensive'' communications. In this opinion, 
the Court again discusses whether less restrictive means were available 
and again concludes that Congress had not sufficiently addressed the 
issue. The opinion notes that:

       The Communications Decency Act contains provisions that 
     were either added in executive committee after the hearings 
     [on the Telecom Act] were concluded or as amendments offered 
     during floor debate on the legislation. . . . No hearings 
     were held on the provisions that became the law.

  The Court in Reno later notes that, ``The lack of legislative 
attention to the statute at issue in Sable suggests another parallel 
with this case.'' (Emphasis Added)
  Once again, if Congress passes a law, by what authority does the 
Supreme Court conclude that we did not devote sufficient legislative 
attention to the law? In the Reno opinion itself the Court noted that 
some Members of the House of Representatives opposed the Communications 
Decency Act because they thought that less restrictive screening 
devices would work. These members offered an amendment intended as a 
substitute for the Communications Decency Act, but instead saw their 
provision accepted as an additional section of the Act. In light of 
this record, how can the Court say that Congress did not consider less 
restrictive means?
  Most recently, in its January, 2000, opinion in Kimel v. Florida 
Board of Regents, 528 U.S. 62, the Supreme court once again took aim at 
Congress' judgment. In Kimel, the Court held that a 1974 amendment to 
the Age Discrimination in Employment Act (the ``ADEA'') to extend its 
application to discrimination by state and local governments was not a 
valid abrogation of state sovereign immunity. The Court rejected 
Congress' action in truly dismissive tones:

       Our examination of the ADEA's legislative record confirms 
     that Congress' 1974 extension of the Act to the States was an 
     unwarranted response to a perhaps inconsequential problem. 
     Congress never identified any pattern of age discrimination 
     by the States, much less any discrimination whatsoever that 
     rose to the level of constitutional violation. * * * 
     (Emphasis Added)
       A review of the ADEA's legislative record as a whole * * * 
     reveals that Congress had virtually no reason to believe that 
     state and local governments were unconstitutionally 
     discriminating against their employees on the basis of age. 
     Congress' failure to uncover any significant pattern of 
     unconstitutional discrimination here confirms that Congress 
     had no reason to believe that broad prophylactic legislation 
     was necessary in this field. Kimel at (Emphasis Added)

  Almost every member of Congress had had close working relationships 
with employees of the state and local governments back home, and all 
members of Congress meet state and local government employees when they 
are back in their states or districts. In fact, many members of 
Congress were once themselves state employees. Congress is therefore in 
a very good position to know that age discrimination by the states is 
not an ``inconsequential'' problem. In fact, the absence of an in-depth 
debate on this topic likely reflects the fact that this proposition 
that state and local governments discriminate on the basis of age was 
non-controversial. The Supreme Courts failure to defer to Congress' 
experience on this issue and its jaundiced reading of the record are 
troubling.
  While numerous other instances of judicial activism may be cited, the 
decisions during Chief Justice Warren's tenure from 1953 through 1969 
are illustrative. While few, if any at this late date, would disagree 
with the Warren Court's decision holding segregation unconstitutional 
in Brown v. Board of Education, it was a clear-cut case of judicial 
activism overturning Pleassey v. Ferguson since neither the legislative 
nor executive branches of the federal or state governments would 
correct those rank injustices.
  The Warren Court significantly expanded the interpretation of the due 
process clause of the 14th Amendment to add Constitutional rights to 
criminal defendants in state court cases. In Mapp v. Ohio, the Court 
rule that unconstitutionally seized evidence could not be introduced in 
a state criminal proceeding. In Gideon v. Wainwright, the Supreme Court 
required that the State provide a defendant a lawyer when ``hailed'' 
into criminal court. Miranda v. Arizona, perhaps the Court's most 
famous opinion, rule out a defendant's confession or statement unless 
five specific warnings were given by police and waivers obtained from 
the defendant before incriminating statements could be introduced 
against him/her in state court proceedings.
  Another era of judicial activism occurred in the mid-1930's. During 
this period, the Supreme Court embarked on a very different activist 
agenda by striking down many of the core laws passed as part of 
President Roosevelt's New Deal. In the 1935 case of A.L.A. Schecter 
Poultry Corp. v. United States, the Supreme Court struck down the 
National Industrial Recovery Act on the grounds that it exceeded 
Congress' power under the Commerce Clause. Also in 1935, in Railroad 
Retirement Board v. Alton R.R., the Supreme Court struck down the 
Railroad Retirement Act on the same Commerce Clause grounds. In the 
1936 case of United States v. Butler, the Supreme Court struck down the 
agricultural Adjustment Act on the grounds that it sought to regulate a 
subject--the production of daily products--prohibited to Federal 
government under the 10th Amendment. Also in 1936, in Carter v. Carter 
Coal Co., the Court struck down the Bituminous Coal Conservation Act on 
the same 10th Amendment grounds.
  These decisions, led to the infamous proposal to pack the Supreme 
Court by adding six new members. Notwithstanding FDR's enormous 
popularity, that proposal raised a storm of protest and failed.
  Televised court proceedings better enable the public to understand 
the role of the Supreme Court and its impact on the key decisions of 
the day. Not only has the Supreme Court invalidated Congressional 
decisions where there is, in the views of many, simply a difference of 
opinion to what is preferable public policy, but the Court determines 
avant-garde issues such as

[[Page 18924]]

whether aids is a disability under the Americans with Disabilities Act, 
whether Congress can ban obscenity from the Internet, and whether 
states can impose term limits upon members of Congress. Just this past 
term, the Court addressed whether the FDA has the authority to regulate 
tobacco products as a drug and whether states can ban partial birth 
abortion.
  The current Court, like its predecessors, hands down decisions which 
vitally affect the lives of all Americans. Since the Court's 1803 
historic decision in Marbury v. Madison, the Supreme Court has the 
final authority on issues of enormous importance from birth to death. 
In Roe v. Wade (1973), the Court affirmed a Constitutional right to 
abortion in this country and struck down state statutes banning or 
severely restricting abortion during the first two trimesters on the 
grounds that they violated a right to privacy inherent in the Due 
Process Clause of the Fourteenth Amendment. In the case of Washington 
v. Glucksberg (1997), the court refused to create a similar right to 
assisted suicide. Here the Court held that the Due Process Clause does 
not recognize a liberty interest that includes a right to commit 
suicide with another's assistance.
  In the Seventies, the Court first struck down then upheld state 
statutes imposing the death penalty for certain crimes. In Furman v. 
Georgia (1972), the Court struck down Georgia's death penalty statute 
under the cruel and unusual punishment clause of the Eighth Amendment 
and stated that no death penalty law could pass constitutional muster 
unless it took aggravating and mitigating circumstances into account. 
This decision lead Georgia and many states to amend their death penalty 
statutes and, four years later, in Gregg v. Georgia (1976), the Supreme 
Court upheld Georgia's amended death penalty statute.
  Over the years, the Court has also played a major role in issues of 
war and peace. In its opinion in Scott v. Sanford (1857)--better known 
as the Dredd Scott decision--the Supreme Court held that Dredd Scott, a 
slave who had been taken into ``free'' territory by his owner, was 
nevertheless still a slave. The Court further held that Congress lacked 
the power to abolish slavery in certain territories, thereby 
invalidating the careful balance that had been worked out between the 
North and the South on the issue. Historians have noted that this 
opinion fanned the flames that led to the Civil War.
  More recently, the Supreme Court played an important role during the 
Vietnam War. Prominent opponents of the war repeatedly petitioned the 
Court to declare the Presidential action unconstitutional on the 
grounds that Congress had never given the President a declaration of 
war. The Court decided to leave this conflict in the political arena 
and repeatedly refused to grant writs of certiorari to hear these 
cases. This prompted Justices Douglas, sometimes accompanied by 
Justices Stewart and Harlan, to take the unusual step of writing 
lengthy dissents to the denials of cert.
  In New York Times Co. v. United States (1971)--the so called 
``Pentagon Papers'' case--the Court refused to grant the government 
prior restraint to prevent the New York Times from publishing leaked 
Defense Department documents which revealed damaging information about 
the Johnson Administration and the war effort. The publication of these 
documents by the New York Times is believed to have helped move public 
opinion against the war.
  In its landmark civil rights opinions, the Supreme Court took the 
lead in effecting needed social change, helping us to address 
fundamental questions about our society in the courts rather than in 
the streets. In Brown v. Board of Education, the Court struck down the 
principle of ``separate but equal'' education for blacks and whites and 
integrated public education in this country. This case was followed by 
a series of civil rights cases which enforced the concept of 
integration and full equality for all citizens of this country, 
including Garner v. Louisiana (1961), Burton v. Wilmington Parking 
Authority (1961), and Peterson v. City of Greenville (1963).
  When deciding issues of such great national import, the Supreme Court 
is rarely unanimous. In fact, a large number of seminal Supreme Court 
decisions have been made by a vote of 5-4. Such a close margin reveals 
that these decisions are far from foregone conclusions distilled from 
the clear meaning of the Constitution and legal precedents. On the 
contrary, these major Supreme Court opinions are really policy 
decisions reached on the basis of the preferences and views of each 
individual justice. In a case that is decided by a vote of 5-4, 
individual justices have the power by his or her vote to change the law 
of the land.
  Given the enormous significance of each vote cast by each justice on 
the Supreme Court, it is important that each justice know that they 
will be held accountable for their vote. Televising the proceedings of 
the Supreme Court will allow the sunlight to shine brightly on these 
proceedings and ensure greater accountability.
  The following are just a handful of examples of major 5-4 decisions 
handed down by the Supreme Court this century:
  Lochner v. New York (1905). The Court struck down an early attempt at 
labor regulation by holding that a law limiting bakers to a sixty-hour 
work week violated the liberty of contract secured by the Due Process 
Clause of the Fourteenth Amendment.
  Hammer v. Dagenhart (1918). The Court again struck down a labor law, 
this time the Keating-Own Federal Child Labor Act, on the grounds that 
Commerce Clause did not give Congress the power to completely forbid 
certain categories of commerce.
  Furman v. Georgia (1972). The Court struck down the death penalty 
under the cruel and unusual punishment clause of the Eighth Amendment.
  Plyer v. Doe (1982). The Court invoked the Equal Protection Clause of 
the Fourteenth Amendment to strike down a Texas statute which denied 
state funding for the education of illegal immigrant children.
  Webster v. Reproductive Health Services (1989). In this case, which 
has been widely viewed as a retreat from Roe v. Wade, the Court upheld 
various restrictions on the availability of abortion including a ban on 
the use of public funds and facilities for abortions.
  United States v. Eichman (1990). The Court invalidated state and 
Federal laws prohibiting flag desecration on the grounds that they 
violated the First Amendment.
  Adarand Constructors, Inc. v. Pena (1995). The Court held that 
Federal racial classifications, like those of a state, must be reviewed 
under a strict scrutiny standard.
  U.S. Term Limits v. Thornton (1995). The Court struck down a state 
law imposing term limits upon Members of Congress on the grounds that 
states have no authority to change, add to, or diminish the age, 
citizenship, and residency requirements for congressional service 
enumerated in the Qualifications Clause of the U.S. Constitution.
  During the past five years alone, there have been eighty 5 to 4 
Supreme Court decisions. Out of the 79 cases decided in the Court's 
most recent term, 20 were decided by a single justice on a 5 to 4 vote. 
The following are some of the important decisions handed down by the 
Court in its last few sessions that were decided by a 5 to 4 vote:
  Tobacco regulation. In FDA v. Brown and Williamson Tobacco 
Corporation, the Court ruled that the FDA lacks authority under the 
Federal Food, Drug, and Cosmetic Act (FDCA) to regulate tobacco 
products.
  Abortion. In Stenberg v. Carhart, the Court ruled that Nebraska's 
statute criminalizing the performance of ``partial birth abortions'' is 
unconstitutional under principles set forth in Roe v. Wade (1973) and 
Planned Parenthood v. Casey (1992).
  Violence Against Women Act. In United States v. Morrison, the Court 
struck down a key provision of the 1994 Violence Against Women Act 
(VAWA) that allowed victims of gender-motivated violence to bring 
private civil lawsuits against the perpetrators in federal court. The 
Supreme Court said that Congress, in enacting the VAWA provision, 
overstepped its authority to regulate interstate commerce and enforce 
the Constitution's equal-protection guarantee.

[[Page 18925]]

  HIV infection. In Bragdon v. Abbott, the Court ruled that HIV 
infection is a ``disability'' as defined by the American with 
Disabilities Act, even if the person who has tested positive for HIV is 
asymptomatic.
  Fourth Amendment. In Pennsylvania Board of Probation and Parole v. 
Scott, the Court limited the exclusionary rule by holding that it does 
not apply in parole revocation hearings.
  Freedom of Religion. In City of Boerne v. Flores, the Court struck 
down the Religious Freedom Restoration Act (``RFRA'') on the grounds 
that it exceeded Congressional power under Section 5 of the Fourteenth 
Amendment. RFRA had provided that governments can infringe upon 
religious practices only if they have health, safety or other 
``compelling interest'' in doing so.
  Freedom of Speech Online. In Reno v. ACLU, the Court struck down two 
provisions of the Communications Decency Act of 1996 prohibiting 
transmission of obscene and indecent messages to minors on the grounds 
that they violated the First Amendment.
  In Printz v. United States, the Court voted 5 to 4 to reverse six 
decades of firmly established constitutional authority on the supremacy 
of federal laws over states rights under the Commerce Clause. 
Specifically, the Court held unconstitutional the provisions of the 
Brady Bill that require state and local law enforcement officers to 
conduct background checks on prospective handgun purchasers.
  In Agostini v. Felton, the Court voted to lower the barrier between 
church and state by holding that the Establishment Clause of the First 
Amendment does not bar use of public school teachers to provide 
remedial education to disadvantaged children in parochial schools.
  In Raines v. Byrd, the Court ruled that our colleagues, Senators 
Byrd, Levin, Moynihan, and Hatfield, lacked standing to challenge the 
constitutionality of the Line Item Veto Act since they failed to 
establish a particularized personal injury. The Court's rejection of an 
``institutional injury'' to Congress as a basis for standing 
significantly limits the ability of legislators to raise constitutional 
challenges to legislation in the courts.
  Cameras Should be allowed in the Supreme Court on Basic Public Policy 
and Constitutional Grounds.
  Given the awesome national significance of the decisions made by the 
Supreme Court, the right of the public to view the process by which 
these decisions are made is self evident. In a democracy, the workings 
of the government at all levels should be open to public view. The more 
openness, and the more real the opportunity for public observation, the 
greater the understanding and trust. As the Supreme Court noted in the 
1986 case of Press-Enterprise Co. v. Superior Court, ``People in an 
open society do not demand infallibility from their institutions, but 
it is difficult for them to accept what they are prohibited from 
observing.''
  It was in this spirit that the House of Representatives opened its 
deliberations to meaningful public observation by allowing C-Span to 
begin televising debates in the House chamber in 1979. The Senate 
followed the House's lead in 1986 by voting to allow television 
coverage of the Senate floor.
  Beyond this general policy preference for openness, however, there is 
a strong argument that the Constitution requires that television 
cameras be permitted in the Supreme Court.
  It is well established that the Constitution guarantees access to 
judicial proceedings to the press and the public. In 1980, the Supreme 
Court relied on this tradition when it held in Richmond Newspapers v. 
Virginia that the right of a public trial belongs not just to the 
accused, but to the public and the press as well. The Court noted that 
such openness has ``long been recognized as an indisputable attribute 
of an Anglo-American trial.''
  Recognizing that in modern society most people cannot physically 
attend trials, the Court specifically addressed the need for access by 
members of the media:

       Instead of acquiring information about trials by first hand 
     observation or by word of mouth from those who attended, 
     people now acquire it chiefly through the print and 
     electronic media. [emphasis added] In a sense, this validates 
     the media claim of acting as surrogates for the public. 
     [Media presence] contributes to public understanding of the 
     rule of law and to comprehension of the functioning of the 
     entire criminal justice system.

  Today, television is the means by which most Americans get their 
information. To exclude television cameras from the court is to 
effectively prevent large segments of American society from ever 
witnessing what transpires therein. Furthermore, television provides a 
level of access to courtroom proceedings far closer to the ideal of 
actual attendance in the court than either newspapers or photographs 
can provide.
  In addition, a strong argument can be made that forbidding television 
cameras in the court, while permitting access to print and other media, 
constitutes an impermissible discrimination against one type of media 
in contravention of the First Amendment. In recent years, the Supreme 
Court and lower courts have repeatedly held that differential treatment 
of different media is impermissible under the First Amendment absent an 
overriding governmental interest. For example, in 1983 the Court 
invalidated discriminatory tax schemes imposed only upon certain types 
of media in Minneapolis Star & Tribune Co. v. Minnesota commissioner of 
Revenue. In the 1977 case of ABC v. Cuomo, the Second Circuit rejected 
the contention by the two candidates for mayor of New York that they 
could exclude some members of the media from their campaign 
headquarters by providing access through invitation only. The Court 
wrote that:

       Once there is a public function, public comment, and 
     participation by some of the media, the First Amendment 
     requires equal access to all of the media or the rights of 
     the First Amendment would no longer be tenable.

  In the 1965 case of Estes v. Texas, the Supreme Court rejected the 
argument that the denial of television coverage of trials violates the 
equal protection clause. In the same opinion, the Court held that the 
presence of television cameras in the Court had violated a Texas 
defendant's right to due process. Subsequent opinions have cast serious 
doubt upon the continuing relevance of both prongs of the Estes 
opinion.
  In its 1981 opinion in Chandler v. Florida, discussed above, the 
court recognized that Estes must be read narrowly in light of the state 
of television technology at that time. The television coverage of 
Estes' 1962 trial required cumbersome equipment, numerous additional 
microphones, yards of new cables, distracting lighting, and numerous 
technicians present in the courtroom. In contrast, the court noted, 
television coverage in 1980 can be achieved through the presence of one 
or two discreetly placed cameras without making any perceptible change 
in the atmosphere of the courtroom. Accordingly, the Court held that, 
despite Estes, the presence of television cameras in a Florida trial 
was not a violation of the rights of the defendants in that case. By 
the same logic, the holding in Estes that exclusion of television 
cameras from the courts did not violate the equal protection clause 
must be revisited in light of the dramatically different nature of 
television coverage today.
  Given the strength of these arguments, it is not surprising that over 
the last two decades there has been a rapidly growing acceptance of 
cameras in American courtrooms which has reached almost every court 
except for the Supreme Court itself. Ironically, it was a Supreme Court 
decision which helped spur the spread of television cameras in the 
courts. In 1981, in the case of Chandler v. Florida, the Supreme Court 
decided that televising criminal proceedings did not inherently 
interfere with a criminal defendant's constitutional right to a fair 
trial, and that there was no empirical evidence to support a claim that 
it did. Shortly after the Chandler decision, the American Bar 
Association revised its canons to permit judges to authorize televising 
civil and criminal proceedings in their courts.
  Following the green lights provided by the Supreme Court and the ABA,

[[Page 18926]]

forty-seven states have decided to permit electronic coverage of at 
least some portion of their judicial proceedings. In 1990, the federal 
Judicial Conference authorized a three-year pilot program allowing 
television coverage of civil proceedings in six federal district courts 
and two federal circuit courts. The program began in July, 1991 and ran 
through December 31, 1994. The Federal Judicial Center monitored the 
program and issued a positive final evaluation. In particular, the 
Judicial Center concluded that:

       Overall, attitudes of judges toward electronic media 
     coverage of civil proceedings were initially neutral and 
     became more favorable after experience under the pilot 
     program.

  The Judicial Center also concluded that:

       Judges and attorneys who had experience with electronic 
     media coverage under the program generally reported observing 
     small or no effects of camera presence on participants in the 
     proceedings, courtroom decorum, or the administration of 
     justice.

  Despite this positive evaluation, the Judicial Conference voted in 
September, 1994, to end the experiment and not to extend the camera 
coverage to all courts. This decision was made in the aftermath of the 
initial burst of television coverage of O.J. Simpson's pretrial 
hearing. Some have argued that the decision was unduly influenced by 
this outside event.
  In March, 1996, the Judicial Conference revisited the issue of 
television cameras in the federal courts and voted to permit each 
federal court of appeals to ``decide for itself whether to permit the 
taking of photographs and radio and television coverage of appellate 
arguments.'' Since that time, two circuit courts have enacted rules 
permitting television coverage of their arguments. It is significant to 
note that these two circuits were the two circuits which participated 
in the federal experiment with television cameras a few years earlier. 
It seems that once judges have an experience with cameras in their 
courtroom, they no longer oppose the idea.
  On September 6, 2000, the Senate Judiciary Committee's Subcommittee 
on Administrative Oversight and the Courts held a hearing on ``Allowing 
Cameras and Electronic Media in the Courtroom.'' The primary focus of 
the hearing was Senate bill 721, legislation introduced by Senators 
Grassley and Schumer that would give federal judges the discretion to 
allow television coverage of court proceedings. One of the witnesses at 
the hearing, Judge Edward Becker, Chief Judge U.S. Court of Appeals for 
the Third Circuit, spoke in opposition to the legislation and the 
presence of television cameras in the courtroom. The remaining five 
witnesses, however, including a federal judge, a state judge, a law 
professor and other legal experts, all testified in favor of the 
legislation. They argued that cameras in the courts would not disrupt 
proceedings but would provide the kind of accountability and access 
that is fundamental to our system of government.
  In my judgment, Congress, with the concurrence of the President, or 
overriding his veto, has the authority to require the Supreme Court to 
televise its proceedings. Such a conclusion is not free from doubt and 
is highly likely to be tested with the Supreme Court, as usual, having 
the final word. As I see it, there is no constitutional prohibition 
against such legislation.
  Article 3 of the Constitution states that the judicial power of the 
United States shall be vested ``in one Supreme Court and such inferior 
Courts as the Congress may from time to time ordain and establish.'' 
While the Constitution specifically creates the Supreme Court, however, 
it left it to Congress to determine how the Court would operate. For 
example, it was congress that fixed the number of justices on the 
Supreme Court at nine. Likewise, it was Congress that decided that any 
six of these justices are sufficient to constitute a quorum of the 
Court. It was Congress that decided that the term of the Court shall 
commence on the first Monday in October of each year, and it was 
Congress that determined the procedures to be followed whenever the 
Chief Justice is unable to perform the duties of his office.
  Beyond such basic structural and operational matters, Congress also 
controls more substantive aspects of the Supreme Court. Most 
importantly, it is Congress that in effect determines the appellate 
jurisdiction of the Supreme Court. Although the Constitution itself 
sets out the appellate jurisdiction of the Court, it provides that such 
jurisdiction exists ``with such exceptions and under such regulations 
as the Congress shall make.'' In the early days of the Supreme Court, 
Chief Justice Marshall, writing for the Court in Durousseau v. United 
States, recognized that the power to make exceptions to the Court's 
jurisdiction is the equivalent of the power to grant jurisdiction, 
since exceptions can be ``implied from the intent manifested by the 
affirmative description [of jurisdiction].''
  the Supreme Court recognized the power of Congress to control its 
appellate jurisdiction in a dramatic way in the famous 1868 case of Ex 
Parte McCardle. In this case, McCardle, a newspaper editor, was being 
held in custody by the military for trial on charges stemming from the 
publication of articles alleged to be libelous and incendiary. McCardle 
petitioned the Supreme Court for a writ of habeas corpus. The Court 
heard his case but, before it rendered its opinion, Congress repealed 
the statute that gave the Supreme Court jurisdiction to hear the habeas 
appeal. In light of this Congressional action, the Supreme Court felt 
compelled to dismiss the case for lack of jurisdiction.
  Congress also exercises broad and significant control over the timing 
within which federal courts must act. For example, Congress passed the 
Speedy Trial Act to quantify an individual's Sixth Amendment right to a 
speedy trial. Specifically, the Act requires that an individual 
arrested for a criminal offense be indicted within thirty days of 
arrest and be brought to trial within seventy days of an indictment.
  Likewise, the habeas corpus reform I authored, which became law as 
part of the comprehensive anti-terrorism act of 1996, imposes strict 
timetables upon the filing and review of habeas corpus petitions and 
appeals. For example, in the case of both death row inmates and other 
prisoners, the Act establishes a one-year deadline within which state 
and federal prisoners must file their federal habeas petitions. In 
capital cases, the Act requires a district court to render a final 
determination of a habeas petition not later than 180 days after the 
date on which it is filed, and it requires a court of appeals to hear 
and render a final determination of any appeal of an order granting or 
denying such petition within 120 days after the date on which the reply 
brief is filed.
  Some objections have been raised to televised proceedings of the 
Supreme Court on the ground that it would subject justices to undue 
security risks. My own view is such concerns are vastly overstated. 
Well-known members of Congress, including such high profile 
personalities as Senator Ted Kennedy, walk on a regular basis in public 
view in the Capitol complex. Other very well-known personalities, 
presidents, vice presidents, cabinet officers, all are on public view 
with even incumbent presidents exposed to risks as they mingle with the 
public. Such risks are minimal and, in my view, are worth the 
relatively minor exposure that Supreme Court justices would undertake 
through television appearances.
  The Supreme Court could, of course, permit television through its own 
rule but has decided not to do so. Congress should be circumspect and 
even hesitant to impose a rule mandating the televising of Supreme 
Court proceedings and should do so only in the face of compelling 
public policy reasons. The Supreme Court has such a dominant role in 
key decision-making functions that their proceedings ought to be better 
known to the public; and, in the absence of Court rule, public policy 
would be best served by enactment of legislation requiring the 
televising of Supreme Court proceedings.
                                 ______
                                 
      By Mr. DORGAN (for himself, Mr. Gregg, and Mr. Durbin):
  S. 3087. A bill to amend the Internal Revenue Code of 1986 to 
simplify the individual income tax by providing an

[[Page 18927]]

election for eligible individuals to only be subject to a 15 percent 
tax on wage income with a tax return free filing system, to reduce the 
burdens of the marriage penalty and alternative minimum tax, and for 
other purposes; to the Committee on Finance.


                 the fair and simple shortcut tax plan

  Mr. DORGAN. Mr. President, for all the talk about taxes in this 
chamber, we often overlook one of the worst burdens of the current tax 
system. I'm talking about the monumental hassle that taxpayers face to 
file their tax returns each year.
  It is simply inexcusable that Congress has made it so expensive and 
complex for Americans to fulfill this basic civic duty. Taxpayers will 
probably spend somewhere around three billion hours and at least $75 
billion next year in the effort to meet their federal income tax 
obligations. It's no wonder they barrage congressional offices with 
letters each spring imploring us to simplify the Tax Code.
  They are right. Each little provision in the tax code has a 
justification, but together they add up to a big headache for the 
American taxpayer. We can't blame the IRS for the misery endured this 
past year or in the years ahead. There's no way to truly simplify tax 
day unless Congress changes the underlying law.
  That's why I'm pleased to be joined by Senators Gregg and Durbin in 
introducing a tax reform proposal that we call the ``Fair and Simple 
Shortcut Tax'' (FASST) plan. Our plan would give most taxpayers the 
opportunity to pay their federal income taxes without having to prepare 
a tax return if they so choose. Some thirty countries already enable 
their citizens to pay their federal taxes in this way. We believe tax 
simplification along these lines can work in this country, too. Our 
approach would also be less costly than other major tax simplification 
plans that have been proposed in Congress in the past several years.
  Our bill is based on a principle that both sides of the aisle 
generally are eager to espouse--namely, choice. The bill would allow 
taxpayers to choose to pay their taxes without complexity, paperwork 
and hassle. Those who prefer to use the current system, with its 
complexity and expenses, could do so if they wanted. But if they want 
something simpler, they could choose that instead.
  Under FASST, most taxpayers could forget about filing a federal tax 
return on April 15th. Instead, their entire income tax liability would 
be withheld at work. There would be no more deciphering statements from 
mutual funds, no more frantic search for records and receipts, and no 
last minute dash to the Post Office in order to meet the midnight 
deadline. According to Treasury Department officials who have studied 
it, the FASST plan would give up to 70 million Americans the 
opportunity to elect the no-return option.
  Specifically, under the FASST plan, most taxpayers could choose the 
no-filing option by filling out a slightly modified W-4 form at work. 
Using tables prepared by the IRS, their employers would determine the 
employee's exact tax obligation at a single rate of 15 percent on 
wages--after several major adjustments--and withhold that amount. This 
amount would satisfy the taxpayer's entire federal income tax 
obligation for the year, absent some unforeseeable changes in 
circumstances or fraud.
  The FASST plan would be available for couples earning up to $100,000 
in wages and no more than $5,000 in other income such as interest, 
dividends or capital gains. In the case of individual taxpayers, the 
wage and non-wage income limits would be $50,000 and $2,500, 
respectively. Popular deductions would continue under this plan: the 
standard deduction, personal exemptions, the child care credit and 
Earned Income Tax Credit, along with a deduction for home mortgage 
interest expenses and property taxes. Our bill would include critical 
savings incentives for average Americans by exempting up to $5,000 of 
all interest, dividends and capital gains income from taxation for 
couples, $2,500 for singles. Moreover, savings contributions made 
through employers would be excluded from the wage calculations in the 
beginning.
  Consider some of the advantages of this hassle-free plan:
  No taxpayers would lose. If a taxpayer prefers to file an ordinary 
return, he or she would still have that choice, and no one would be 
forced to lose a tax deduction that he or she wants to keep.
  Wages would be taxed at a single, low rate of 15 percent.
  A deduction for home mortgage interest expenses, the Earned Income 
Tax Credit, and other popular parts of our current tax code would be 
preserved. Other major tax reform plans would eliminate those 
deductions, which many people count on.
  The alternative minimum tax, AMT and the marriage penalty would be 
eliminated.
  Compliance costs for taxpayers and government alike would fall. If 70 
million Americans chose the FASST option, hundreds of millions of 
dollars now spent on paper pushing could be used in more productive 
ways.
  Those taxpayers who continued to file under the old system would get 
relief too. The plan would reduce the marriage penalty by making the 
standard deduction for married couples double the amount available for 
single filers. Also, it would virtually eliminate the complicated AMT 
for most sole proprietors, farmers and other small businesses by 
exempting the first $1 million in self-employment income from the AMT 
calculations. This legislation also would provide a 50 percent credit 
for up to $1,000 in expenses that businesses might incur implementing 
the FASST plan. In addition, it would grant taxpayers who continue to 
use the current system a 50 percent tax credit for up to $200 in tax 
preparer expenses, provided they file their returns electronically. 
Finally, the bill would offer individuals a substantial incentive for 
savings and investment by exempting up to $500 of dividend and interest 
income, $1,000 for couples.
  Mr. President, millions of Americans in this country are tired of 
spending countless hours wading through complex forms and instruction 
books. Our bill is both simple and fair, and it gives most taxpayers 
the choice to avoid the annual nightmare that the federal tax system 
has become.
  In testimony before a Senate subcommittee earlier this year, IRS 
Commissioner Rossotti testified that it's ``unquestionable that this 
bill provides significant tax simplification.'' Imagine how much better 
life would be if April 15th were just another day. Under the FASST 
plan, for millions of Americans, that could be true. We urge our 
colleagues to support this important legislation, which we think will 
go a long way toward eliminating the burden of ``tax day'' for tens of 
millions of taxpayers in the future.
  I ask unanimous consent that the full text of this legislation be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record as follows:

                                S. 3087

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

     SECTION 1. SHORT TITLE; AMENDMENT OF 1986 CODE.

       (a) Short Title.--This Act may be cited as the ``Fair and 
     Simple Shortcut Tax Plan''.
       (b) Amendment of 1986 Code.--Except as otherwise expressly 
     provided, whenever in this Act an amendment or repeal is 
     expressed in terms of an amendment to, or repeal of, a 
     section or other provision, the reference shall be considered 
     to be made to a section or other provision of the Internal 
     Revenue Code of 1986.

               TITLE I--FAIR AND SIMPLE SHORTCUT TAX PLAN

     SEC. 101. FAIR AND SIMPLE SHORTCUT TAX PLAN.

       (a) In General.--Subchapter A of chapter 1 (relating to 
     determination of tax liability) is amended by adding at the 
     end the following:

             ``PART VIII--FAIR AND SIMPLE SHORTCUT TAX PLAN

``Sec.  60.  Tax on individuals electing FASST.
``Sec.  60A.  Computation of applicable taxable income.
``Sec.  60B.  Credit against tax.
``Sec.  60C.  Election.
``Sec.  60D.  Liability for tax.

     ``SEC. 60. TAX ON INDIVIDUALS ELECTING FASST.

       ``(a) Tax Imposed.--If an individual who is an eligible 
     taxpayer has an election in effect

[[Page 18928]]

     under this part for a taxable year, there is hereby imposed a 
     tax equal to 15 percent of the taxpayer's applicable taxable 
     income.
       ``(b) Coordination With Other Taxes.--The tax imposed by 
     this section shall be in lieu of any other tax imposed by 
     this subchapter. The preceding sentence shall not apply to 
     taxes described in section 26(b)(2) other than subparagraph 
     (A) thereof.

     ``SEC. 60A. COMPUTATION OF APPLICABLE TAXABLE INCOME.

       ``(a) In General.--For purposes of this part, the term 
     `applicable taxable income' means the taxpayer's applicable 
     wage income, minus--
       ``(1) the standard deduction,
       ``(2) the deductions for personal exemptions provided in 
     section 151, and
       ``(3) the homeowner expense deduction allowable under 
     subsection (c).
       ``(b) Applicable Wage Income.--For purposes of this part--
       ``(1) In general.--The term `applicable wage income' means, 
     with respect to an individual, wages received by such 
     individual for the taxable year for services performed as an 
     employee of an employer.
       ``(2) Employment.--The term `employment' has the meaning 
     given such term in section 3121(b).
       ``(3) Wages.--The term `wages' has the meaning given such 
     term in section 3401(a).
       ``(c) Homeowner Expense Deduction Allowed.--
       ``(1) In general.--For purposes of subsection (a), there 
     shall be allowed as a deduction for the taxable year an 
     amount equal to the product of--
       ``(A) $5,000, and
       ``(B) a fraction, the numerator of which is the number of 
     months in such year in which the taxpayer owned and used 
     property as the taxpayer's principal residence (within the 
     meaning of section 121) and the denominator of which is 12.
       ``(2) Special rules.--For purposes of this subsection--
       ``(A) Married individuals.--In the case of a married 
     individual, the ownership and use requirements of paragraph 
     (1) shall be treated as met for any month if either spouse 
     meets them.
       ``(B) Divorce; cooperative housing.--Rules similar to the 
     rules of paragraphs (3) and (4) of section 121(d) shall 
     apply.
       ``(C) Out-of-residence care.--If a taxpayer becomes 
     physically or mentally impaired while owning and using 
     property as a principal residence, then the taxpayer shall be 
     treated as meeting the ownership and use requirements of 
     paragraph (1) during any period the taxpayer owns the 
     property and resides in any facility (including a nursing 
     home) licensed by a State or political subdivision to care 
     for an individual in the taxpayer's condition.

     ``SEC. 60B. CREDITS AGAINST TAX.

       ``No credit shall be allowed against the tax imposed by 
     this part other than--
       ``(1) the credit allowable under section 24 (relating to 
     child tax credit),
       ``(2) the credit allowable under section 32 (relating to 
     earned income credit), and
       ``(3) the credit for overpayment of tax under section 6402.

     ``SEC. 60C. ELECTION.

       ``(a) Election.--An eligible taxpayer may elect to have 
     this part apply for any taxable year.
       ``(b) Eligible Taxpayer.--
       ``(1) In general.--For purposes of this part, the term 
     `eligible taxpayer' means, with respect to any taxable year, 
     a taxpayer who receives--
       ``(A) applicable wage income in an amount not in excess 
     of--
       ``(i) $100,000, in the case of a taxpayer described in 
     section 1(a), and
       ``(ii) 50 percent of the amount in effect under clause (i) 
     for the taxable year, in the case of any other taxpayer, and
       ``(B) gross income (determined without regard to applicable 
     wage income) in an amount not in excess of--
       ``(i) $5,000, in the case of a taxpayer described in 
     section 1(a), and
       ``(ii) 50 percent of the amount in effect under clause (i) 
     for the taxable year, in the case of any other taxpayer.
       ``(2) Exclusions.--The term `eligible taxpayer' shall not 
     include--
       ``(A) a married individual unless the individual and the 
     spouse both have the same taxable year and both make the 
     election,
       ``(B) a nonresident alien individual, or
       ``(C) an estate or trust.
       ``(3) Inflation adjustments.--In the case of a taxable year 
     beginning after 2001, each dollar amount under paragraph (1) 
     shall be increased by an amount equal to--
       ``(A) such dollar amount, multiplied by
       ``(B) the cost-of-living adjustment determined under 
     section 1(f)(3) for the calendar year in which the taxable 
     year begins, determined by substituting `calendar year 2000' 
     for `calendar year 1992' in subparagraph (B) thereof.
       ``(b) Form of Election.--
       ``(1) In general.--An individual shall make an election to 
     have this part apply for any taxable year by furnishing an 
     election certificate to such individual's employer not later 
     than the close of the first payroll period after the 
     individual commences work for such employer or January 1 of 
     the taxable year to which such election relates, whichever is 
     later.
       ``(2) Contents of certificate.--The election certificate 
     furnished under paragraph (1) shall--
       ``(A) contain such information as the Secretary requires to 
     enable the Secretary to carry out this part and enable the 
     employer to withhold the appropriate amount of wages under 
     section 3402, and
       ``(B) contain a certification by the employee under penalty 
     of perjury that the information furnished is correct.
       ``(3) Amendment of certificate.--A new election certificate 
     shall be filed within 30 days after the date of any change in 
     the information required under paragraph (2).
       ``(4) Election certificate.--For purposes of this section, 
     the term `election certificate' means the withholding 
     exemption certificate used for purposes of chapter 24.
       ``(5) Advance payment of earned income amount.--The 
     Secretary shall prescribe such regulations as may be 
     necessary to allow an eligible taxpayer to treat an election 
     certificate furnished under this section as including an 
     earned income eligibility certificate under section 3507 in 
     the case of an eligible individual claiming the earned income 
     credit under section 32.

       ``(c) Period Election In Effect.--
       ``(1) In general.--Except as provided in paragraph (2), an 
     election under this section shall be effective for the 
     taxable year for which it is made and all subsequent taxable 
     years.
       ``(2) Termination.--An election under this part shall 
     terminate with respect to an individual for any taxable year 
     and all subsequent taxable years if at any time during such 
     taxable year such individual--
       ``(A) is no longer an eligible taxpayer,
       ``(B) elects to terminate such individual's election, or
       ``(C) commits fraud with respect to any information 
     required to be provided under this section.
       ``(d) Safe Harbor for Ineligibility.--In the case of an 
     individual who has a termination under subsection (c)(2)(A), 
     no addition to tax under section 6654 shall apply to any 
     underpayment attributable to eligible wage income of such 
     individual for such taxable year if such underpayment was not 
     due to fraud, negligence, or disregard of rules or 
     regulations (within the meaning of section 6662).
       ``(e) Marital Status.--For purposes of this part, marital 
     status shall be determined under section 7703.

     ``SEC. 60D. LIABILITY FOR TAX.

       ``(a) Amount Withheld Treated as Satisfaction of 
     Liability.--Except as provided in this section, any amount 
     withheld as tax under section 3402(t) for an eligible 
     individual with an election in effect under section 60C for 
     the taxable year shall be treated as complete satisfaction of 
     liability for the tax imposed by section 60(a) for such 
     taxable year.
       ``(b) Exceptions.--Notwithstanding subsection (a)--
       ``(1) Overpayment.--If the amount withheld as tax under 
     section 3402(t) for an eligible taxpayer with an election in 
     effect under section 60C for the taxable year exceeds the tax 
     imposed under section 60(a) for the taxable year, the excess 
     amount shall be treated as an overpayment for purposes of 
     section 6402.
       ``(2) Underpayment.--
       ``(A) In general.--If the Secretary determines that the 
     amount withheld as tax under section 3402(t) for an eligible 
     taxpayer is less than the tax imposed under section 60(a) and 
     such underpayment is not due to fraud, the Secretary may 
     assess and collect such underpayment in the same manner as if 
     such underpayment were on account of a mathematical or 
     clerical error appearing on a return of the individual for 
     the taxable year.
       ``(B) De minimis exception.--If the amount by which the tax 
     imposed by section 60(a) exceeds the amount withheld as tax 
     under section 3402(t) by less than the lesser of $100 or 10 
     percent of the tax so imposed, the taxpayer shall be treated 
     as having no underpayment.
       ``(c) Regulations.--The Secretary shall prescribe such 
     regulations as may be necessary to carry out the provisions 
     of this section, including regulations--
       ``(1) to allow a refund of an overpayment under subsection 
     (b)(1) to a taxpayer without requiring additional filing of 
     information by the taxpayer, and
       ``(2) to notify taxpayers of eligibility for credits 
     allowable under section 60B and allow a claim and refund of 
     any credit not claimed by an eligible taxpayer during the 
     taxable year.''.
       (b) Withholding From Wages.--Section 3402 (relating to 
     income tax collected at source) is amended by adding at the 
     end the following new subsection:
       ``(t) Withholding Under the Fair and Simple Shortcut Tax 
     Plan.--
       ``(1) In general.--An employer making payment of wages to 
     an individual with an election in effect under section 60C 
     shall deduct and withhold upon such wages a tax (in lieu of 
     the tax required to be deducted and withheld under subsection 
     (a)) determined in accordance with tables prescribed by the 
     Secretary in accordance with paragraph (2).

[[Page 18929]]

       ``(2) Withholding tables.--The Secretary shall prescribe 1 
     or more tables which set forth amounts of wages and income 
     tax to be deducted and withheld based on information 
     furnished to the employer in the employee's election form and 
     to ensure that the aggregate amount withheld from such 
     employee's wages approximates the tax liability of such 
     individual for the taxable year. Any tables prescribed under 
     this paragraph shall--
       ``(A) apply with respect to the amount of wages paid during 
     such periods as the Secretary may prescribe, and
       ``(B) be in such form, and provide for such amounts to be 
     deducted and withheld, as the Secretary determines to be most 
     appropriate to carry out the purposes of this chapter and to 
     reflect the provisions of chapter 1 applicable to such 
     periods, including taking into account any credits allowable 
     under section 24 or 32.

     The Secretary shall provide that any other provision of this 
     section shall not apply to the extent such provision is 
     inconsistent with the provisions of this subsection.
       ``(2) Election Certificate.--
       ``(A) In general.--In lieu of a withholding exemption 
     certificate, an employee shall furnish the employer with a 
     signed election certificate and any amended election 
     certificate at such time and containing such information as 
     required under section 60C.
       ``(B) When certificate takes effect.--
       ``(i) First certificate furnished.--An election certificate 
     furnished to an employer in cases in which no previous such 
     certificate is in effect shall take effect as of the 
     beginning of the first payroll period ending, or the first 
     payment of wages made without regard to a payroll period, on 
     or after the date on which such certificate is so furnished.
       ``(ii) Replacement certificate.--An election certificate 
     furnished to an employer which replaces an earlier 
     certificate shall take effect as of the beginning of the 1st 
     payroll period ending (or the 1st payment of wages made 
     without regard to a payroll period) on or after the 30th day 
     after the on which the replacement certificate is so 
     furnished.''.
       (c) Waiver of Requirement to File Return of Income.--
     Subsection (a)(1)(A) of section 6012 (relating to persons 
     required to make return of income) is amended by striking 
     ``or'' at the end of clause (iii), by striking the period at 
     the end of clause (iv) and inserting ``, or'', and by 
     inserting after clause (iv) the following new clause:
       ``(v) who is an eligible taxpayer with an election in 
     effect for the taxable year under section 60C.''
       (d) Technical and Conforming Amendments.--
       (1) The table of parts for subchapter A of chapter 1 is 
     amended by adding at the end the following new item:

``Part VIII. Fair and Simple Shortcut Tax Plan.''
       (2) Section 6654(a) is amended by inserting ``and section 
     60C(d)'' after ``this section''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2000.

     SEC. 102. TAX CREDIT FOR EMPLOYER FASST PLAN STARTUP COSTS.

       (a) In General.--Subpart D of part IV of subchapter A of 
     chapter 1 (relating to business related credits) is amended 
     by adding at the end the following new section:

     ``SEC. 45D. FASST PLAN EMPLOYER START-UP CREDIT.

       ``(a) Credit Allowed.--
       ``(1) In general.--For purposes of section 38, the Fair and 
     Simple Shortcut Tax plan start-up credit determined under 
     this section for the taxable year is an amount equal to the 
     lesser of--
       ``(A) 50 percent of eligible start-up costs of the taxpayer 
     for the taxable year, or
       ``(B) $1,000.
       ``(2) Maximum credit.--The maximum credit allowed with 
     respect to a taxpayer under this subsection for all taxable 
     years shall not exceed the amount determined under paragraph 
     (1) for all taxable years.
       ``(b) Eligible start-up costs.--For purposes of this 
     section, the term `eligible start-up costs' means amounts 
     paid or incurred by an employer (or any predecessor) during 
     the 1 year period beginning on the date on which the employer 
     first employs 1 or more employees with an election in effect 
     under section 60C for the taxable year, in connection with 
     carrying out the withholding requirements of section 3402.
       ``(c) Credit Available for Each Worksite.--If a taxpayer 
     maintains a separate worksite for employees, such person 
     shall be treated as a single employer with respect to such 
     worksite for purposes of the credit allowable under 
     subsection (a).''
       (b) Conforming Amendments.--
       (1) Section 38(b) is amended--
       (A) by striking ``plus'' at the end of paragraph (11),
       (B) by striking the period at the end of paragraph (12), 
     and inserting a comma and ``plus'', and
       (C) by adding at the end the following new paragraph:
       ``(13) the Fair and Simple Shortcut Tax plan start-up 
     credit determined under section 45D.''
       (2) The table of sections for subpart D of part IV of 
     subchapter A of chapter 1 is amended by adding at the end the 
     following new item:

``Sec. 45D. Fair and Simple Shortcut Tax plan start-up credit.''
       (c) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2000.

             TITLE II--PROVISIONS TO SIMPLIFY THE TAX CODE

     SEC. 201. REDUCTION IN MARRIAGE PENALTY IN STANDARD 
                   DEDUCTION.

       (a) In General.--Section 63(c)(2) (relating to basic 
     standard deduction) is amended to read as follows:
       ``(2) Basic standard deduction.--For purposes of paragraph 
     (1), the basic standard deduction is--
       ``(A) 200 percent of the amount under subparagraph (C) for 
     the taxable year, in the case of a joint return or a 
     surviving spouse (as defined in section 2(a)),
       ``(B) 150 percent of such amount, in the case of a head of 
     household (as defined in section 2(b)), and
       ``(C) $3,000, in the case of an individual who is not 
     married and who is not a surviving spouse or head of 
     household or a married individual filing a separate return.''
       (b) Effective Date.--The amendment made by this section 
     shall apply to taxable years beginning after December 31, 
     2000.

     SEC. 202. ALTERNATIVE MINIMUM TAX EXCLUSION OF SELF-
                   EMPLOYMENT INCOME AND CERTAIN ITEMS OF 
                   PREFERENCE AND ADJUSTMENTS.

       (a) Increased Exemption for Self-Employment Income.--
     Section 55(d)(1) (relating to exemption amount for taxpayers 
     other than corporations) is amended to read as follows:
       ``(1) Exemption amount for taxpayers other than 
     corporations.--In the case of a taxpayer other than a 
     corporation, the term `exemption amount' means the sum of--
       ``(A) an amount equal to--
       ``(i) $45,000 in the case of--

       ``(I) a joint return, or
       ``(II) a surviving spouse,

       ``(ii) $33,750 in the case of an individual who--

       ``(I) is not a married individual, or
       ``(II) is not a surviving spouse, and

       ``(iii) $22,500 in the case of--

       ``(I) a married individual who files a separate return, or
       ``(II) an estate or trust, and

       ``(B) an amount equal to the lesser of--
       ``(i) the self employment income (as defined in section 
     1402(b)) of the taxpayer for the taxable year, or
       ``(ii) $1,000,000.
     For purposes of this paragraph, the term `surviving spouse' 
     has the meaning given to such term by section 2(a), and 
     marital status shall be determined under section 7703.''.
       (b) Exclusion of Certain Items of Preference and 
     Adjustments.--Section 55 (relating to alternative minimum tax 
     imposed) is amended by adding at the end the following new 
     subsection:
       ``(f) Special Rule for Small Businesses.--
       ``(1) In general.--For purposes of this part, in computing 
     the alternative minimum taxable income of a taxpayer to which 
     this subsection applies for any taxable year--
       ``(A) no adjustments provided in section 56 which are 
     attributable to a trade or business of the taxpayer shall be 
     made, and
       ``(B) taxable income shall not be increased by any item of 
     tax preference described in section 57 which is so 
     attributable.
       ``(2) Application.--
       ``(A) In general.--This subsection shall apply to a 
     taxpayer for a taxable year if the taxpayer is not a 
     corporation and the gross receipts of the taxpayer for the 
     taxable year from all trades or businesses do not exceed 
     $1,000,000.
       ``(B) Special rules.--Rules similar to the rules of 
     paragraphs (2), (3)(B), and (3)(C) of section 448(c) shall 
     apply for purposes of this subsection.''.
       (c) Conforming Amendments.--Section 55(d)(3) is amended--
       (1) by striking ``paragraph (1)(A)'' and inserting 
     ``paragraph (1)(A)(i)'' in subparagraph (A),
       (2) by striking ``paragraph (1)(B)'' and inserting 
     ``paragraph (1)(A)(ii)'' in subparagraph (B),
       (3) by striking ``paragraph (1)(C)'' and inserting 
     ``paragraph (1)(A)(iii)'' in subparagraph (C), and
       (4) by striking ``paragraph (1)(C)(i)'' and inserting 
     ``paragraph (1)(A)(iii)(I)'' in the second sentence.
       (d) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2000.

     SEC. 203. NONREFUNDABLE TAX CREDIT FOR TAX PREPARATION 
                   EXPENSES.

       (a) In General.--Subpart A of part IV of subchapter A of 
     chapter 1 (relating to nonrefundable personal credits) is 
     amended by adding at the end the following new section:

     ``SEC. 25B. TAX PREPARATION EXPENSES.

       ``(a) Allowance of Credit.--In the case of an individual, 
     there shall be allowed as a credit against the tax imposed by 
     this chapter for the taxable year an amount equal to the 
     lesser of--
       ``(1) 50 percent of the qualified tax preparation expenses 
     of the taxpayer for the taxable year, or
       ``(2) $100.

[[Page 18930]]

       ``(b) Qualified Tax Preparation Expenses.--For purposes of 
     this section, the term `qualified tax preparation expenses' 
     means expenses paid or incurred during the taxable year by an 
     individual in connection with the preparation of the 
     taxpayer's Federal income tax return for such taxable year, 
     but only if such return is electronically filed. Such term 
     shall include any expenses related to an income tax return 
     preparer.
       ``(c) Denial of Deduction.--No deduction shall be allowed 
     under this chapter for any amount taken into account in 
     determining the credit under this section.''.
       (b) Conforming Amendment.--The table of sections for 
     subpart A of part IV of subchapter A of chapter 1 is amended 
     by adding at the end the following new item:

``Sec. 25B. Tax preparation expenses.''
       (c) Effective Date.--The amendments made by this section 
     shall apply to expenses paid or incurred for taxable years 
     beginning after December 31, 2000.

     SEC. 204. EXEMPTION OF CERTAIN INTEREST AND DIVIDEND INCOME 
                   FROM TAX.

       (a) In General.--Part III of subchapter B of chapter 1 
     (relating to amounts specifically excluded from gross income) 
     is amended by inserting after section 115 the following new 
     section:

     ``SEC. 116. PARTIAL EXCLUSION OF DIVIDENDS AND INTEREST 
                   RECEIVED BY INDIVIDUALS.

       ``(a) Exclusion From Gross Income.--In the case of an 
     individual who does not have an election in effect under 
     section 60C for the taxable year, gross income does not 
     include dividends and interest otherwise includible in gross 
     income which are received during the taxable year by such 
     individual.
       ``(b) Limitations.--
       ``(1) Maximum amount.--The aggregate amount excluded under 
     subsection (a) for any taxable year shall not exceed $500 
     ($1,000 in the case of a joint return).
       ``(2) Certain dividends excluded.--Subsection (a) shall not 
     apply to any dividend from a corporation which for the 
     taxable year of the corporation in which the distribution is 
     made is a corporation exempt from tax under section 521 
     (relating to farmers' cooperative associations).
       ``(c) Special Rules.--For purposes of this section--
       ``(1) Exclusion not to apply to capital gain dividends from 
     regulated investment companies and real estate investment 
     trusts.--

  ``For treatment of capital gain dividends, see sections 854(a) and 
857(c).
       ``(2) Certain nonresident aliens ineligible for 
     exclusion.--In the case of a nonresident alien individual, 
     subsection (a) shall apply only in determining the taxes 
     imposed for the taxable year pursuant to sections 871(b)(1) 
     and 877(b).
       ``(3) Dividends from employee stock ownership plans.--
     Subsection (a) shall not apply to any dividend described in 
     section 404(k).''.
       (b) Conforming Amendments.--
       (1) Subparagraph (C) of section 32(c)(5) is amended by 
     striking ``or'' at the end of clause (i), by striking the 
     period at the end of clause (ii) and inserting ``; or'', and 
     by inserting after clause (ii) the following new clause:
       ``(iii) interest and dividends received during the taxable 
     year which are excluded from gross income under section 
     116.''.
       (2) Subparagraph (A) of section 32(i)(2) is amended by 
     inserting ``(determined without regard to section 116)'' 
     before the comma.
       (3) Subparagraph (B) of section 86(b)(2) is amended to read 
     as follows:
       ``(B) increased by the sum of--
       ``(i) the amount of interest received or accrued by the 
     taxpayer during the taxable year which is exempt from tax, 
     and
       ``(ii) the amount of interest and dividends received during 
     the taxable year which are excluded from gross income under 
     section 116.''.
       (4) Subsection (d) of section 135 is amended by 
     redesignating paragraph (4) as paragraph (5) and by inserting 
     after paragraph (3) the following new paragraph:
       ``(4) Coordination with section 116.--This section shall be 
     applied before section 116.''.
       (5) Paragraph (2) of section 265(a) is amended by inserting 
     before the period ``, or to purchase or carry obligations or 
     shares, or to make deposits, to the extent the interest 
     thereon is excludable from gross income under section 116''.
       (6) Subsection (c) of section 584 is amended by adding at 
     the end the following new flush sentence:

     ``The proportionate share of each participant in the amount 
     of dividends or interest received by the common trust fund 
     and to which section 116 applies shall be considered for 
     purposes of such section as having been received by such 
     participant.''.
       (7) Subsection (a) of section 643 is amended by 
     redesignating paragraph (7) as paragraph (8) and by inserting 
     after paragraph (6) the following new paragraph:
       ``(7) Dividends or interest.--There shall be included the 
     amount of any dividends or interest excluded from gross 
     income pursuant to section 116.''.
       (8) Section 854(a) is amended by inserting ``section 116 
     (relating to partial exclusion of dividends and interest 
     received by individuals) and'' after ``For purposes of''.
       (9) Section 857(c) is amended to read as follows:
       ``(c) Restrictions Applicable to Dividends Received From 
     Real Estate Investment Trusts.--
       ``(1) Treatment for section 116.--For purposes of section 
     116 (relating to partial exclusion of dividends and interest 
     received by individuals), a capital gain dividend (as defined 
     in subsection (b)(3)(C)) received from a real estate 
     investment trust which meets the requirements of this part 
     shall not be considered as a dividend.
       ``(2) Treatment for section 243.--For purposes of section 
     243 (relating to deductions for dividends received by 
     corporations), a dividend received from a real estate 
     investment trust which meets the requirements of this part 
     shall not be considered as a dividend.''.
       (10) The table of sections for part III of subchapter B of 
     chapter 1 is amended by inserting after the item relating to 
     section 115 the following new item:

``Sec. 116. Partial exclusion of dividends and interest received by 
              individuals.''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after December 31, 
     2000.
                                 ______
                                 
      By Mr. LEVIN:
       S. 3088. A bill to require the Secretary of Health and 
     Human Services to promulgate regulations regarding allowable 
     costs under the Medicaid Program for school based services 
     provided to children with disabilities; to the Committee on 
     Finance.


                   administrative services adjustment

  Mr. LEVIN. Mr. President, today I am introducing legislation which 
provides fair relief to schools in Michigan and other states.
  In 1993, the state of Michigan and our school districts worked out an 
agreement which would provide schools a portion of Federal Medicaid 
dollars based on school based health related activities that were being 
provided to eligible children receiving special education services. 
When these school superintendents looked around in 1996, they saw a 
similarly situated state which was providing administrative services to 
help special needs kids, and they decided to follow suit for children 
in Michigan. Michigan then implemented the Administrative Outreach 
component of school based services based on a program that had been in 
operation in that state for the previous two years.
  Recently, HCFA disallowed $103.6 million in claims submitted by the 
state of Michigan to reimburse the schools for services already 
rendered in this effort. It is simply unfair that these school 
districts are now being penalized when they have been trying to provide 
health services through the schools for special needs kids in ways used 
in other states and after relying on HCFA regional guidance.
  I have met with a large group of Michigan school superintendents and 
their staff and I know how committed they are to helping children with 
special needs. Apparently, the rules need to be clarified, and in a 
meeting with HCFA that the Michigan superintendents had this week, HCFA 
committed to sitting down with the education community by the end of 
this month to finalize an administrative guide regarding claims for 
reimbursement. That is surely an appropriate goal, but in the meantime, 
Michigan claims have been disallowed although the state relied on 
regional HCFA guidance. While national guidance is being clarified, we 
should not penalize states who have acted reasonably based on existing 
guidance.
  I believe Michigan school superintendents when they say they believed 
they were acting appropriately in providing services for children with 
special educational needs. These are honest hardworking people trying 
to run school districts on tight budgets. I am introducing this 
legislation because I believe any attempt to penalize schools who acted 
in good faith will ultimately hurt special needs kids as well as our 
schools themselves.
                                 ______
                                 
      By Mr. ALLARD (for himself and Mr. Campbell):
       S. 3090. A bill to establish the Rocky Flats National 
     Wildlife Refuge in the State of Colorado, and for other 
     purposes; to the Committee on Armed Services.


            rocky flats national wildlife refuge act of 2000

  Mr. ALLARD. Mr. President, I rise today, with Senator Ben Nighthorse 
Campbell, to introduce a very important piece of legislation for my 
state of

[[Page 18931]]

Colorado and this nation--The Rocky Flats National Wildlife Refuge Act. 
My colleague, Representative Mark Udall, is introducing companion 
legislation in the House cosponsored by the entire Colorado delegation.
  Today we begin a new chapter in the history of Rocky Flats. This 
legislation will permanently designate the Rocky Flats Environmental 
Technology Site as a National Wildlife Refuge following the cleanup and 
closure of the site. It ensures that the Federal Government will retain 
full liability and ownership of this former nuclear weapons facility. 
This legislation will transform Rocky Flats from producing weapons to 
protecting wildlife. It will ensure that our children and grandchildren 
will be able to enjoy the wildlife and open space that currently exists 
at Rocky Flats.
  This is a tremendous achievement. Once the bill is enacted, we will 
see Rocky Flats move from being an active nuclear weapons site into an 
active refuge for wildlife and wild flowers in less than two decades. 
An accomplishment which no one thought was possible.
  My vested interest in Rocky Flats began during the 1980's when I was 
the Chairman of the State Senate Committee on Health, Environment, 
Welfare and Institutions. Although I supported the national security 
mission of the Rocky Flats site prior to closure, I believe that the 
Department of Energy must also ensure the safety and health of all 
Coloradans and the environment. When the Rocky Flats site was shut down 
in 1990, cleaning up and closing down the site became one of my top 
legislative priorities and will remain so until this project is 
complete.
  So where did the idea come from to turn Rocky Flats, a former nuclear 
weapons production facility, into a National Wildlife Refuge?
  My experience with wildlife refuge designations began with 
Congresswoman Schroeder at the Rocky Mountain Arsenal in 1992. We 
worked on a bill very similar to the one we are here to discuss today, 
which designated the Arsenal as a National Wildlife Refuge. Given the 
success we experienced at the Rocky Mountain Arsenal, I am confident 
this is an appropriate designation for Rocky Flats.
  Last year, I became the Strategic Subcommittee Chairman of the Senate 
Armed Services Committee, which has direct oversight of former DoE 
weapons facilities including Rocky Flats. This is the first site in the 
DoE complex to receive funding for cleanup and closure, and will 
therefore be a role model for other sites in the complex. As Chairman 
of the Subcommittee, I will continue to work closely with my colleagues 
to educate them on the importance of cleaning up and closing down Rocky 
Flats so it can be utilized as a National Wildlife Refuge. This 
education extends beyond the cleanup and closure of Rocky Flats to the 
importance of cleaning up and closing of all the former DoE weapons 
sites.
  To this end, Congressman Udall and I have worked in a bipartisan 
manner, with the Department of Energy, the EPA, the State of Colorado, 
the local governments and the Rocky Flats stakeholders to produce the 
proposed Rocky Flats National Wildlife Refuge Act. It has been hard 
work and with many discussion drafts, but in the end I believe we have 
produced a bill that the communities surrounding Rocky Flats can and 
will be proud of.
  It is important to understand that this legislation maintains that 
the Rocky Flats site will remain in permanent Federal ownership, and 
that the administrative transfer of this site from DoE to the Fish and 
Wildlife Service will take place after the cleanup and closure of the 
site is complete. While cleanup is still our top priority, 
determination of official closure is determined by the Environmental 
Protection Agency's signing of the final on-site record of decision. 
There are many components of this bill which I will summarize as 
follows:
  The sponsors of the legislation recognize the historic importance of 
the Lindsay Ranch homestead facilities and this legislation guarantees 
the ranch's preservation.
  Additionally, this bill ensures that the site will remain a unified 
site, therefore disallowing the annexation of land to any local 
government, or for the construction of through roads. The only roads 
that may be constructed on the site would be by the Fish and Wildlife 
Service for the management of the refuge.
  Currently, there is a provision in this legislation to allow the 
Secretary of Energy and the Secretary of the Interior to authorize a 
transportation right of-way on the eastern boundary of the site for 
transportation improvements along Indiana Street. We are aware of the 
continued evaluation of this issue and want this section of the bill to 
be consistent with the needs of the State of Colorado and the local 
governments.
  With respect to the transfer of management responsibilities and 
jurisdiction over Rocky Flats, this bill requires the Department of 
Energy and the Fish and Wildlife Service to publish in the Federal 
Register a Memorandum of Understanding one year after the enactment of 
this Act. This Memorandum of Understanding will address administrative 
matters such as the division of responsibilities between the two 
agencies until the official transfer of the site occurs. This 
legislation clearly states that no funding designated for cleanup and 
closure of the site will be used for these activities.
  It is important that the transfer of the site from the Department of 
Energy to the Fish and Wildlife Service exclude any property that must 
be retained by DoE for future onsite monitoring, as well as property 
which must be retained for protection of human health and safety.
  The improvements necessary for the site to be managed as a wildlife 
refuge will be completed at no cost to the Secretary of the Interior. 
Therefore, the Secretary of Interior will need to identify appropriate 
improvement needs and submit this request to the Secretary of Energy in 
writing. This legislation also clarifies that in the event of future 
cleanup activities, this action will take priority over wildlife 
management. These two agencies must continue to work with each other 
towards their missions.
  One of the most important directives in this Act states that 
``nothing in this Act affects the level of cleanup and closure at the 
Rocky Flats site required under the Rocky Flats Cleanup Agreement or 
any Federal or State law.'' Through the ongoing discussions that 
Congressman Udall and I have had with the Rocky Flats stakeholders we 
believe it is important to reiterate that this bill should not be used 
as a mechanism to drive the level of cleanup. We are confident that 
this language clarifies this issue. Our primary goal remains and will 
continue to remain the on-going cleanup and closure of Rocky Flats. 
And, nothing in this bill affects the on-going cleanup and closure 
activities at the Rocky Flats.
  Once the site is transferred to the Fish and Wildlife Service, the 
refuge will be managed in accordance with the National Wildlife Refuge 
System Act to preserve wildlife, enhance wildlife habitat, conserve 
threatened and endangered species, provide education opportunities and 
scientific research, as well as recreation.
  We recognize the importance of the locally elected officials and 
stakeholders in the effectiveness and success of this bill. Therefore, 
we want to ensure their continued contribution at Rocky Flats. Through 
this bill we direct the Fish and Wildlife Service to convene a public 
process to include input on the management of the site. The public 
process will provide a forum for recommendations to be given to the 
Fish and Wildlife Service on issues including the site operations, 
transportation improvements, leasing land to the National Renewable 
Energy Laboratory, perimeter fences, the development of a Rocky Flats 
museum and visitors center. Upon the completion of this report by the 
Fish and Wildlife Service, a report will be submitted to Congress to 
identify the recommendations resulting from the public process.
  We have received a lot of input with respect to private property 
rights. This legislation recognizes and preserves these property and 
access rights, which include mineral rights, water and easement rights, 
and utility rights-of-ways. This legislation does direct the Secretary 
of Energy to seek to purchase

[[Page 18932]]

mineral rights from willing sellers. For management purposes, this Act 
provides the Secretary of Energy and the Secretary of Interior the 
authority to impose reasonable conditions on the access to private 
property rights for cleanup and refuge management purposes.
  Additionally, this bill provides the Secretary of Energy with the 
authority to allow Public Service Company of Colorado to construct an 
extension from an existing extension line on the site.
  As a tribute to the Cold War and those who worked at Rocky Flats both 
prior to and after the site closure, Congressman Udall and I, through 
this legislation, authorize the establishment of a Rocky Flats museum 
to commemorate the site. This bill requires that the creation of the 
museum shall be studied, and a report shall be submitted to Congress 
within three years following the enactment of this act.
  Lastly, this bill directs the Department of Energy and the Fish and 
Wildlife Service to inform Congress on the costs associated with the 
implementation of this Act.
  This process has moved forward successfully thanks to the hard work 
of the local governments and the Rocky Flats stakeholders. I also want 
to thank Representative Udall for the bi-partisan manner in which he 
and his staff worked with me and my office. Rocky Flats, like all other 
cleanup sites, is bigger than partisan politics and this effort proves 
it.
  Once clean up and closure is accomplished in 2006, I look forward to 
returning to Rocky Flats for the dedication of new Rocky Flats National 
Wildlife Refuge.
  I ask unanimous consent that the bill be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record as follows:

                                S. 3090

       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 ``Rocky Flats National 
     Wildlife Refuge Act of 2000''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds the following:
       (1) The Federal Government, through the Atomic Energy 
     Commission, acquired the Rocky Flats site in 1951 and began 
     operations there in 1952. The site remains a Department of 
     Energy facility. Since 1992, the mission of the Rocky Flats 
     site has changed from the production of nuclear weapons 
     components to cleanup and closure in a manner that is safe, 
     environmentally and socially responsible, physically secure, 
     and cost-effective.
       (2) The site has generally remained undisturbed since its 
     acquisition by the Federal Government.
       (3) The State of Colorado is experiencing increasing growth 
     and development, especially in the metropolitan Denver Front 
     Range area in the vicinity of the Rocky Flats site. That 
     growth and development reduces the amount of open space and 
     thereby diminishes for many metropolitan Denver communities 
     the vistas of the striking Front Range mountain backdrop.
       (4) Some areas of the site contain contamination and will 
     require further remediation. The national interest requires 
     that the ongoing cleanup and closure of the entire site be 
     completed safely, effectively, and without unnecessary delay 
     and that the site thereafter be retained by the United States 
     and managed so as to preserve the value of the site for open 
     space and wildlife habitat.
       (5) The Rocky Flats site provides habitat for many wildlife 
     species, including a number of threatened and endangered 
     species, and is marked by the presence of rare xeric 
     tallgrass prairie plant communities. Establishing the site as 
     a unit of the National Wildlife Refuge System will promote 
     the preservation and enhancement of those resources for 
     present and future generations.
       (b) Purpose.--The purpose of this Act is to provide for the 
     establishment of the Rocky Flats site as a national wildlife 
     refuge while creating a process for public input on refuge 
     management and ensuring that the site is thoroughly and 
     completely cleaned up.

     SEC. 3. DEFINITIONS.

       In this Act:
       (1) Cleanup and closure.--The term ``cleanup and closure'' 
     means the remedial actions and decommissioning activities 
     being carried out at Rocky Flats by the Department of Energy 
     under the 1996 Rocky Flats Cleanup Agreement, the closure 
     plans and baselines, and any other relevant documents or 
     requirements.
       (2) Coalition.--The term ``Coalition'' means the Rocky 
     Flats Coalition of Local Governments established by the 
     Intergovernmental Agreement, dated February 16, 1999, among--
       (A) the city of Arvada, Colorado;
       (B) the city of Boulder, Colorado;
       (C) the city of Broomfield, Colorado;
       (D) the city of Westminster, Colorado;
       (E) the town of Superior, Colorado;
       (F) Boulder County, Colorado; and
       (G) Jefferson County, Colorado.
       (3) Hazardous substance.--The term ``hazardous substance'' 
     has the meaning given the term in section 101 of the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 (42 U.S.C. 9601).
       (4) Pollutant or contaminant.--The term ``pollutant or 
     contaminant'' has the meaning given the term in section 101 
     of the Comprehensive Environmental Response, Compensation, 
     and Liability Act of 1980 (42 U.S.C. 9601).
       (5) Refuge.--The term ``refuge'' means the Rocky Flats 
     National Wildlife Refuge established under section 7.
       (6) Response action.--The term ``response action'' has the 
     meaning given the term ``response'' in section 101 of the 
     Comprehensive Environmental Response, Compensation, and 
     Liability Act of 1980 (42 U.S.C. 9601) or any similar 
     requirement under State law.
       (7) RFCA.--The term ``RFCA'' means the Rocky Flats Cleanup 
     Agreement, an intergovernmental agreement, dated July 19, 
     1996, among--
       (A) the Department of Energy;
       (B) the Environmental Protection Agency; and
       (C) the Department of Public Health and Environment of the 
     State of Colorado.
       (8) Rocky flats.--The term ``Rocky Flats'' means the Rocky 
     Flats Environmental Technology Site, Colorado, a defense 
     nuclear facility, as depicted on the map entitled ``Rocky 
     Flats Environmental Technology Site'', dated July 15, 1998.
       (9) Rocky flats trustees.--The term ``Rocky Flats 
     Trustees'' means the Federal and State of Colorado entities 
     that have been identified as trustees for Rocky Flats under 
     section 107(f)(2) of the Comprehensive Environmental 
     Response, Compensation, and Liability Act of 1980 (42 U.S.C. 
     9607(f)(2)).
       (10) Secretary.--The term ``Secretary'' means the Secretary 
     of Energy.

     SEC. 4. FUTURE OWNERSHIP AND MANAGEMENT.

       (a) Federal Ownership.--Unless Congress provides otherwise 
     in an Act enacted after the date of enactment of this Act, 
     all right, title, and interest of the United States, held on 
     or acquired after the date of enactment of this Act, to land 
     within the boundaries of Rocky Flats shall be retained by the 
     United States.
       (b) Lindsay Ranch.--The structures that comprise the former 
     Lindsay Ranch homestead site in the Rock Creek Reserve area 
     of the buffer zone, as depicted on the map referred to in 
     section 3(8), shall be permanently preserved and maintained 
     in accordance with the National Historic Preservation Act (16 
     U.S.C. 470 et seq.).
       (c) Prohibition on Annexation.--The Secretary of the 
     Interior shall not allow the annexation of land within the 
     refuge by any unit of local government.
       (d) Prohibition on Through Roads.--Except as provided in 
     subsection (e), no public road shall be constructed through 
     Rocky Flats.
       (e) Transportation Right-of-Way.--
       (1) In general.--
       (A) Availability of land.--On submission of an application 
     meeting each of the conditions specified in paragraph (2), 
     the Secretary and the Secretary of the Interior may make 
     available land along the eastern boundary of Rocky Flats for 
     the sole purpose of transportation improvements along Indiana 
     Street.
       (B) Boundaries.--Land made available under this paragraph 
     may not extend more than 150 feet from the west edge of the 
     Indiana Street right-of-way, as that right-of-way exists as 
     of the date of enactment of this Act.
       (C) Easement or sale.--Land may be made available under 
     this paragraph by easement or sale to 1 or more appropriate 
     entities.
       (D) Compliance with applicable law.--Any action under this 
     paragraph shall be taken in compliance with applicable law.
       (2) Conditions.--An application for land under this 
     subsection may be submitted by any county, city, or other 
     political subdivision of the State of Colorado and shall 
     include documentation demonstrating that--
       (A) the transportation project is compatible with the 
     management of Rocky Flats as a wildlife refuge; and
       (B) the transportation project is included in the Regional 
     Transportation Plan of the Metropolitan Planning Organization 
     designated for the Denver metropolitan area under section 
     5303 of title 49, United States Code.

     SEC. 5. TRANSFER OF MANAGEMENT RESPONSIBILITIES AND 
                   JURISDICTION OVER ROCKY FLATS.

       (a) In General.--
       (1) Memorandum of understanding.--
       (A) In general.--Not later than 1 year after the date of 
     enactment of this Act, the Secretary and the Secretary of the 
     Interior shall publish in the Federal Register a draft 
     memorandum of understanding under which the Secretary shall 
     transfer to the Secretary

[[Page 18933]]

     of the Interior administrative jurisdiction over Rocky Flats.
       (B) Required elements.--
       (i) In general.--Subject to clause (ii), the memorandum of 
     understanding shall--

       (I) provide for the timing of the transfer;
       (II) provide for the division of responsibilities between 
     the Secretary and the Secretary of the Interior for the 
     period ending on the date of the transfer; and
       (III) provide an appropriate allocation of costs and 
     personnel to the Secretary of the Interior.

       (ii) No reduction in funds.--The memorandum of 
     understanding shall not result in any reduction in funds 
     available to the Secretary for cleanup and closure of Rocky 
     Flats.
       (C) Deadline.--Not later than 18 months after the date of 
     enactment of this Act, the Secretary and Secretary of the 
     Interior shall finalize and implement the memorandum of 
     understanding.
       (2) Exclusions.--The transfer under paragraph (1) shall not 
     include the transfer of any property or facility over which 
     the Secretary retains jurisdiction, authority, and control 
     under subsection (b)(1).
       (3) Condition.--The transfer under paragraph (1) shall 
     occur not later than 10 business days after the signing by 
     the Regional Administrator for Region VIII of the 
     Environmental Protection Agency of the Final On-site Record 
     of Decision for Rocky Flats.
       (4) Cost; improvements.--The transfer--
       (A) shall be completed without cost to the Secretary of the 
     Interior; and
       (B) may include such buildings or other improvements as the 
     Secretary of the Interior may request in writing for refuge 
     management purposes.
       (b) Property and Facilities Excluded From Transfers.--
       (1) In general.--The Secretary shall retain jurisdiction, 
     authority, and control over all real property and facilities 
     at Rocky Flats that are to be used for--
       (A) any necessary and appropriate long-term operation and 
     maintenance facility to intercept, treat, or control a 
     hazardous substance, radionuclide, or other pollutant or 
     contaminant; and
       (B) any other purpose relating to a response action or any 
     other action that is required to be carried out at Rocky 
     Flats.
       (2) Consultation.--
       (A) With environmental protection agency and state.--The 
     Secretary shall consult with the Administrator of the 
     Environmental Protection Agency and the State of Colorado on 
     the identification and management of all property to be 
     retained under this subsection to ensure the continuing 
     effectiveness of response actions.
       (B) With secretary of the interior.--
       (i) In general.--The Secretary shall consult with the 
     Secretary of the Interior on the management of the retained 
     property to minimize any conflict between the management of 
     property transferred to the Secretary of the Interior and 
     property retained by the Secretary for response actions.
       (ii) Conflict.--In the case of any such conflict, 
     implementation and maintenance of the response action shall 
     take priority.
       (3) Access.--As a condition of the transfer under 
     subsection (a), the Secretary shall be provided such 
     easements and access as are reasonably required to carry out 
     any obligation or address any liability.
       (c) Administration.--
       (1) In general.--On completion of the transfer under 
     subsection (a), the Secretary of the Interior shall 
     administer Rocky Flats in accordance with this Act subject 
     to--
       (A) any response action or institutional control at Rocky 
     Flats carried out by or under the authority of the Secretary 
     under the Comprehensive Environmental Response, Compensation, 
     and Liability Act of 1980 (42 U.S.C. 9601 et seq.); and
       (B) any other action required under any other Federal or 
     State law to be carried out by or under the authority of the 
     Secretary.
       (2) Conflict.--In the case of any conflict between the 
     management of Rocky Flats by the Secretary of the Interior 
     and the conduct of any response action or other action 
     described in subparagraph (A) or (B) of paragraph (1), the 
     response action or other action shall take priority.
       (3) Continuing actions.--Except as provided in paragraph 
     (1), nothing in this subsection affects any response action 
     or other action initiated at Rocky Flats on or before the 
     date of the transfer under subsection (a).
       (4) Liability.--The Secretary shall retain any obligation 
     or other liability for land transferred under subsection (a) 
     under--
       (A) the Comprehensive Environmental Response, Compensation, 
     and Liability Act of 1980 (42 U.S.C. 9601 et seq.); or
       (B) any other applicable law.

     SEC. 6. CONTINUATION OF ENVIRONMENTAL CLEANUP AND CLOSURE.

       (a) Ongoing Cleanup and Closure.--
       (1) In general.--The Secretary shall carry out to 
     completion cleanup and closure at Rocky Flats.
       (2) No restriction on use of new technologies.--Nothing in 
     this Act, and no action taken under this Act, restricts the 
     Secretary from using at Rocky Flats any new technology that 
     may become available for remediation of contamination.
       (b) Rules of Construction.--
       (1) No relief from obligations under other law.--
       (A) In general.--Nothing in this Act, and no action taken 
     under this Act, relieves the Secretary, the Administrator of 
     the Environmental Protection Agency, or any other person from 
     any obligation or other liability with respect to Rocky Flats 
     under the RFCA or any applicable Federal or State law.
       (B) No effect on rfca.--Nothing in this Act impairs or 
     alters any provision of the RFCA.
       (2) Required cleanup levels.--
       (A) In general.--Except as provided in subparagraph (B), 
     nothing in this Act affects the level of cleanup and closure 
     at Rocky Flats required under the RFCA or any Federal or 
     State law.
       (B) No effect from establishment as national wildlife 
     refuge.--
       (i) In general.--The requirements of this Act for 
     establishment and management of Rocky Flats as a national 
     wildlife refuge shall not affect the level of cleanup and 
     closure.
       (ii) Cleanup levels.--The Secretary is required to conduct 
     cleanup and closure of Rocky Flats to the levels hereafter 
     established for soil, water, and other media, following a 
     thorough review, by the parties to the RFCA and the public, 
     of the appropriateness of the interim levels in the RFCA.
       (3) No effect on obligations for measures to control 
     contamination.--Nothing in this Act, and no action taken 
     under this Act, affects any long-term obligation of the 
     United States relating to funding, construction, monitoring, 
     or operation and maintenance of--
       (A) any necessary intercept or treatment facility; or
       (B) any other measure to control contamination.
       (c) Payment of Response Action Costs.--Nothing in this Act 
     affects the obligation of a Federal department or agency that 
     had or has operations at Rocky Flats resulting in the release 
     or threatened release of a hazardous substance or pollutant 
     or contaminant to pay the costs of response actions carried 
     out to abate the release of, or clean up, the hazardous 
     substance or pollutant or contaminant.
       (d) Consultation.--In carrying out a response action at 
     Rocky Flats, the Secretary shall consult with the Secretary 
     of the Interior to ensure that the response action is carried 
     out in a manner that, to the maximum extent practicable, 
     furthers the purposes of the refuge.

     SEC. 7. ROCKY FLATS NATIONAL WILDLIFE REFUGE.

       (a) Establishment.--Not later than 30 days after the 
     transfer of jurisdiction under section 5(a)(3), the Secretary 
     of the Interior shall establish at Rocky Flats a national 
     wildlife refuge to be known as the ``Rocky Flats National 
     Wildlife Refuge''.
       (b) Composition.--The refuge shall consist of the real 
     property subject to the transfer of jurisdiction under 
     section 5(a)(1).
       (c) Notice.--The Secretary of the Interior shall publish in 
     the Federal Register a notice of the establishment of the 
     refuge.
       (d) Administration and Purposes.--
       (1) In general.--The Secretary of the Interior shall manage 
     the refuge in accordance with applicable law, including this 
     Act, the National Wildlife Refuge System Administration Act 
     of 1966 (16 U.S.C. 668dd et seq.), and the purposes specified 
     in that Act.
       (2) Specific management purposes.--To the extent consistent 
     with applicable law, the refuge shall be managed for the 
     purposes of--
       (A) restoring and preserving native ecosystems;
       (B) providing habitat for, and population management of, 
     native plants and migratory and resident wildlife;
       (C) conserving threatened and endangered species (including 
     species that are candidates for listing under the Endangered 
     Species Act of 1973 (16 U.S.C. 1531 et seq.));
       (D) providing opportunities for compatible environmental 
     scientific research; and
       (E) providing the public with opportunities for compatible 
     outdoor recreational and educational activities.

     SEC. 8. PUBLIC INVOLVEMENT.

       (a) Establishment of Process.--Not later than 90 days after 
     the date of enactment of this Act, in developing plans for 
     the management of fish and wildlife and public use of the 
     refuge, the Secretary of the Interior, in consultation with 
     the Secretary, the members of the Coalition, the Governor of 
     the State of Colorado, and the Rocky Flats Trustees, shall 
     establish a process for involvement of the public and local 
     communities in accomplishing the purposes and objectives of 
     this section.
       (b) Other Participants.--In addition to the entities 
     specified in subsection (a), the public involvement process 
     shall include the opportunity for direct involvement of 
     entities not members of the Coalition as of the date of 
     enactment of this Act, including the Rocky Flats Citizens' 
     Advisory Board and the cities of Thornton, Northglenn, 
     Golden, Louisville, and Lafayette, Colorado.
       (c) Dissolution of Coalition.--If the Coalition dissolves, 
     or if any Coalition member elects to leave the Coalition 
     during the public involvement process under this section--
       (1) the public involvement process under this section shall 
     continue; and

[[Page 18934]]

       (2) an opportunity shall be provided to each entity that is 
     a member of the Coalition as of September 1, 2000, for direct 
     involvement in the public involvement process.
       (d) Purposes.--The public involvement process under this 
     section shall provide input and make recommendations to the 
     Secretary and the Secretary of the Interior on the following:
       (1) The long-term management of the refuge consistent with 
     the purposes of the refuge described in section 7(d) and in 
     the National Wildlife Refuge System Administration Act of 
     1966 (16 U.S.C. 668dd et seq.).
       (2) The identification of any land described in section 
     4(e) that could be made available for transportation 
     purposes.
       (3) The potential for leasing any land in Rocky Flats for 
     the National Renewable Energy Laboratory to carry out 
     projects relating to the National Wind Technology Center.
       (4) The characteristics and configuration of any perimeter 
     fencing that may be appropriate or compatible for cleanup and 
     closure, refuge, or other purposes.
       (5) The feasibility of locating, and the potential location 
     for, a visitor and education center at the refuge.
       (6) The establishment of a Rocky Flats museum described in 
     section 10.
       (7) Any other issues relating to Rocky Flats.
       (e) Report.--Not later than 2 years after the date of 
     enactment of this Act, the Secretary of the Interior shall 
     submit to the Committee on Armed Services of the Senate and 
     the appropriate committee of the House of Representatives a 
     report that--
       (1) outlines the conclusions reached through the public 
     involvement process; and
       (2) to the extent that any input or recommendation from the 
     public involvement process is not accepted, clearly states 
     the reasons why the input or recommendation is not accepted.

     SEC. 9. PROPERTY RIGHTS.

       (a) In General.--Except as provided in subsection (c), 
     nothing in this Act limits any valid, existing property right 
     at Rocky Flats that is owned by any person or entity, 
     including, but not limited to--
       (1) any mineral right;
       (2) any water right or related easement; and
       (3) any facility or right-of-way for a utility.
       (b) Access.--Except as provided in subsection (c), nothing 
     in this Act affects any right of an owner of a property right 
     described in subsection (a) to access the owner's property.
       (c) Reasonable Conditions.--
       (1) In general.--The Secretary or the Secretary of the 
     Interior may impose such reasonable conditions on access to 
     property rights described in subsection (a) as are 
     appropriate for the cleanup and closure of Rocky Flats and 
     for the management of the refuge.
       (2) No effect on applicable law.--Nothing in this Act 
     affects any other applicable Federal, State, or local law 
     (including any regulation) relating to the use, development, 
     and management of property rights described in subsection 
     (a).
       (3) No effect on access rights.--Nothing in this subsection 
     precludes the exercise of any access right, in existence on 
     the date of enactment of this Act, that is necessary to 
     perfect or maintain a water right in existence on that date.
       (d) Purchase of Mineral Rights.--
       (1) In general.--The Secretary shall seek to acquire any 
     and all mineral rights at Rocky Flats through donation or 
     through purchase or exchange from willing sellers for fair 
     market value.
       (2) Funding.--The Secretary and the Secretary of the 
     Interior--
       (A) may use for the purchase of mineral rights under 
     paragraph (1) funds specifically provided by Congress; but
       (B) shall not use for such purchase funds appropriated by 
     Congress for the cleanup and closure of Rocky Flats.
       (e) Utility Extension.--
       (1) In general.--The Secretary or the Secretary of the 
     Interior may allow not more than 1 extension from an existing 
     utility right-of-way on Rocky Flats, if necessary.
       (2) Conditions.--An extension under paragraph (1) shall be 
     subject to the conditions specified in subsection (c).

     SEC. 10. ROCKY FLATS MUSEUM.

       (a) Museum.--In order to commemorate the contribution that 
     Rocky Flats and its worker force provided to the winning of 
     the Cold War and the impact that the contribution has had on 
     the nearby communities and the State of Colorado, the 
     Secretary may establish a Rocky Flats Museum.
       (b) Location.--The Rocky Flats Museum shall be located in 
     the city of Arvada, Colorado, unless, after consultation 
     under subsection (c), the Secretary determines otherwise.
       (c) Consultation.--The Secretary shall consult with the 
     city of Arvada, other local communities, and the Colorado 
     State Historical Society on--
       (1) the development of the museum;
       (2) the siting of the museum; and
       (3) any other issues relating to the development and 
     construction of the museum.
       (d) Report.--Not later than 3 years after the date of 
     enactment of this Act, the Secretary, in coordination with 
     the city of Arvada, shall submit to the Committee on Armed 
     Services of the Senate and the appropriate committee of the 
     House of Representatives a report on the costs associated 
     with the construction of the museum and any other issues 
     relating to the development and construction of the museum.

     SEC. 11. REPORT ON FUNDING.

       At the time of submission of the first budget of the United 
     States Government submitted by the President under section 
     1105 of title 31, United States Code, after the date of 
     enactment of this Act, and annually thereafter, the Secretary 
     and the Secretary of the Interior shall report to the 
     Committee on Armed Services and the Committee on 
     Appropriations of the Senate and the appropriate committees 
     of the House of Representatives on--
       (1) the costs incurred in implementing this Act during the 
     preceding fiscal year; and
       (2) the funds required to implement this Act during the 
     current and subsequent fiscal years.
                                 ______
                                 
      Mr. GRASSLEY (for himself, Mr. Grams, Mr. Ashcroft, and Mr. 
        Brownback):
  S. 3091. A bill to implement the recommendations of the General 
Accounting Office on improving the administration of the Packers and 
Stockyards Act, 1921 by the Department of Agriculture, Nutrition, and 
Forestry.


       packers and stockyards enforcement improvement act of 2000

  Mr. GRASSLEY. Mr. President, today I'm introducing a bill to 
implement recommendations by the General Accounting Office contained in 
a report--issued just today--which assesses the efforts of the 
Department of Agriculture's Grain Inspection, Packers and Stockyards 
Administration (GIPSA) in implementing the Packers and Stockyards Act. 
Done correctly, GIPSA is supposed to use the Packers and Stockyards Act 
as a tool to prevent farmers from being subject to unfair and anti-
competitive practices.
  In August 1999, I asked the GAO to investigate whether GIPSA was 
taking full advantage of its authority to investigate competition 
concerns in the cattle and hog industries. In a nutshell, GIPSA has 
failed in its mission to protect family farmers. GIPSA has failed to 
ensure fairness and competitiveness in the livestock industry. The 
report recommends that significant changes need to be made to GIPSA's 
investigation and case management, operations, and development 
processes, as well as its staff resources and capabilities, in order 
for it to effectively perform its Packers and Stockyards duties.
  The news of this administration's failure of duty couldn't come at a 
worse time. Family farmers and independent producers are experiencing 
some of the lowest prices for their commodities in years. In the 
meantime, agribusiness has become so concentrated that family farmers 
are concerned they can't get a fair price for their products. They are 
seeing fewer options for marketing their commodities and they are 
having to sustain increased input costs. The extent of concentration in 
agribusiness has raised serious concerns about the ability of companies 
to engage in unfair practices. Most of these complaints involve the 
livestock industry.
  The Justice Department and Federal Trade Commission are responsible 
for protecting the marketplace from mergers, acquisitions and practices 
that adversely affect competition. But GIPSA, under the Packers and 
Stockyards Act, has substantial, explicit authority to halt anti-
competitive activity in the livestock industry by taking investigative, 
enforcement and regulatory action. But GIPSA has done none of this. All 
we hear are calls for more legislation or more money. It's clear that 
this is just another example of this administration passing the buck to 
Congress by calling for new legislative authority, when they are the 
ones that have failed to exercise the broad authority they already 
have. If USDA won't use their existing powers, what makes us in 
Congress think they'd use new powers?
  As I've stated, I asked for this GAO investigation because I 
suspected that USDA had not been doing enough to ensure that small and 
mid-sized producers were not being harmed by possible anti-competitive 
activity in the livestock industry. So, to tell you the truth, I wasn't 
surprised when GIPSA

[[Page 18935]]

got a failing grade. But I can tell you that I am outraged by USDA and 
this administration's lack of priorities in doing their job and their 
failure to enforce the laws on the books. Let me make this clear, this 
USDA is not a friend to the family farmer. And the Clinton-Gore 
administration is one to talk about us here in Congress doing nothing 
about concerns in agriculture. Maybe I need to define what ``nothing'' 
means. I think that this GAO Report defines ``nothing'' quite well.
  Let me summarize the findings of the GAO report. The report confirms 
that GIPSA's authority to halt anti-competitive practices and protect 
buyers and sellers of livestock is quite broad and, in fact, go further 
than the Sherman Act in addressing anti-competitive practices.
  The report also found that two major factors have impacted GIPSA's 
capability to perform their competition duties. Investigation and case 
methods, practices and processes are inadequate or non-existent at 
GIPSA.
  For example, the GAO found that GIPSA's investigations are planned 
and conducted primarily by economists and technical specialists without 
the formal involvement of USDA's Office of General Counsel attorneys 
from the beginning of an investigation. Attorneys only get involved 
when a case report is completed. On the other hand, DOJ and FTC have 
teams of attorneys and economists that perform investigations of anti-
competitive practices, with the attorneys taking the lead from the 
outset to ensure that a legal theory is focused on the potential 
violation of law. The GAO also found that GIPSA does not have 
investigative methods designed for competition cases, nor does it have 
investigation guidance for anti-competitive practice methods and 
processes. In contrast, DOJ and FTC have detailed processes and 
practices specifically designed for these kinds of cases.
  GIPSA is also inadequately staffed. The GAO indicated that although 
the agency has hired additional economists, they are relatively 
inexperienced. More importantly, even though I understand there are 
around 300 lawyers in the General Counsel's Office, the report found 
that the number of attorneys working on GIPSA matters has actually 
decreased from 8 to 5 since GIPSA reorganized in 1998. To add insult to 
injury, they are not all assigned full-time to GIPSA's financial, trade 
practice, and competition cases; some have other USDA responsibilities 
as well. Consequently, very little attorney time is actually dedicated 
to competition cases, thanks to the low priority this administration 
has placed on the problem.
  The GAO Report's recommendations are straightforward. It recommends 
that GIPSA come up with investigation and case methods, practices and 
processes for competition-related allegations, in consultation with the 
DOJ and FTC.
  It recommends that GIPSA integrate the attorney and economist working 
relationship, with attorneys at the lead from the beginning of the 
investigation. It also suggests that USDA might want to report to 
Congress on the state of the cattle and hog market, as well as on 
potential violations of the Packers and Stockyards Act. In effect, the 
GAO provides a blueprint for how GIPSA should be run, and the policies 
and procedures it should have in place to protect family farmers.
  So, the GAO is telling us that USDA and GIPSA just haven't gotten 
their act together to function like a competent agency. And they are 
recommending that USDA and GIPSA do something that makes common sense--
develop a successful plan, train your people, get guidance from the 
experts, write effective processes and procedures designed for 
competition cases, hire antitrust lawyers.
  Let me give you some more information. Way back in October 1991, the 
GAO issued another report which determined that, despite increased 
concentration in the livestock industry, GIPSA's monitoring and 
analysis were not up to speed to identify anti-competitive practices. 
Instead, GIPSA still placed its primary emphasis on ensuring prompt and 
accurate payment to livestock sellers. In 1997, USDA's own Office of 
Inspector General found that GIPSA needed to make extensive 
improvements to its Packers and Stockyards Program to live up to its 
competition responsibilities. The 1997 OIG report found that GIPSA did 
not have the capability to perform effective anti-competitive practice 
investigations because it was not properly organized, operated or 
staffed. It recommended that GIPSA make extensive organizational and 
resource improvements within the department, as well as employ an 
approach similar to that used by DOJ and FTC, by integrating attorneys 
and economists from the beginning of the investigative process. Sound 
familiar?
  Because of the large number of complaints about competition in the 
livestock industry, one would have thought that USDA and the 
administration would have put addressing competition concerns in every 
way possible and ensuring the effective functioning of GIPSA at the top 
of their list. USDA and the administration had clear warnings in the 
1991 GAO Report and the 1997 OIG Report that there were significant 
problems, yet they've been ineffective in addressing them. In fact, 
USDA agreed with the reports and acknowledged that they needed to 
reevaluate guidelines and regulations, as well as make appropriate 
organizational, procedure and resource changes. So why wasn't this 
done? Why weren't these concerns addressed in an effective manner? Why 
still all this mismanagement? Why still no guidance, policies or 
proceures?
  And now this GAO report raises even more troubling questions. What 
are USDA's real priorities? Are ag concentration and anti-competitive 
activity of any concern to the Clinton/Gore administration? How many 
violations of the Packers and Stockyards Act have slipped through the 
cracks because of GIPSA's failure to execute its statutory 
responsibility? My hearing on September 25, next week in my Judiciary 
Subcommittee, will explore these and other questions.
  I can already see the finger-pointing to come from USDA. They are 
going to say they need more time. Well, they've known since 1991 that 
they had problems, isn't that time enough to fix them? They are going 
to say that we haven't given them enough money. But the fact is that 
Congress has increased GIPSA and USDA OGC funding almost every year 
since 1991. If USDA saw that they needed more antitrust lawyers for 
their Packers and Stockyards competition cases, they should have 
dedicated more of their funds to hiring them. The problem is this 
administration's priorities. The problem is this administration's 
inability to take responsibility.
  In any event, it's clear that we can't count on this administration's 
Agriculture Department to reorganize and fix the problems identified in 
this GAO report. USDA promised to respond to similar problems 
identified in the 1991 GAO Report and 1997 OIG report, yet did nothing 
of any real effect to change the situation. Promises made to farmers 
and promises broken. It's clear to me that recent movements on the part 
of USDA to address some of these issues are just another way to deflect 
criticisms of their failure to act. And my concerns continue to grow. 
Legislation is necessary to force USDA and GIPSA to do their job. It's 
obvious that if we leave it to this administration, it will be the same 
old, same old. And the family farmer will continue to wait for 
something to happen. USDA has broken too many promises already.
  No more. My bill, the Packers and Stockyards Enforcement Improvements 
Act, will require USDA to implement GAO's commonsense recommendations, 
GAO's blueprint for success. Specifically, my bill will require that, 
within one year, USDA implement the recommendations of the GAO report, 
in consultation with DOJ and FTC. My bill will require that, during 
this one year implementation period, USDA will work with DOJ and FTC to 
identify anti-competitive violations and take enforcement action under 
the Packers and Stockyards Act. My bill will require USDA to set up a 
training program for competition investigations within one year. In 
addition, my bill will require USDA to provide Congress with a yearly 
report on

[[Page 18936]]

the state of the cattle and hog industries and identify activities that 
represent potential violations under the Packers and Stockyards Act.
  Finally, my bill will require USDA to report back to Congress within 
a year on what actions it has taken to comply with this act.
  This is a good government bill. It doesn't change the authority of 
USDA to address anti-competitive activity in the livestock industry 
under the Packers and Stockyards Act. Obviously, there's no need to do 
that--USDA already has all the authority they need. Instead, my bill 
does something a lot more fundamental--it makes USDA and GIPSA 
reorganize, regroup and revamp their Packers and Stockyards program so 
they can do their job. Hopefully this will help change USDA's failure 
to take its current statutory responsibilities seriously. It seems to 
me that this is a recurring theme, the administration not enforcing the 
laws on the books and then blaming others for their inadequacies. But 
the report is clear. They are the problem. This GAO report is important 
because it has identified what the real problem is: USDA and the 
administration are asleep at the switch.
  I ask unanimous consent to have my bill printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 3091

       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 ``Packers and Stockyards 
     Enforcement Improvement Act of 2000''.

     SEC. 2. ENFORCEMENT.

       (a) Implementation of the General Accounting Office 
     Report.--Not later than 1 year after September 21, 2000, the 
     Secretary of Agriculture shall implement the recommendations 
     of the report issued by the General Accounting Office 
     entitled ``Packers and Stockyards Programs: Actions Needed to 
     Improve Investigations of Competitive Practices'', GAO/RCED-
     00-242, dated September 21, 2000.
       (b) Consultation.--During the implementation period 
     referred to in subsection (a), and for such an additional 
     time period as needed to assure effective implementation, the 
     Secretary of Agriculture shall consult and work with the 
     Department of Justice and the Federal Trade Commission in 
     order to--
       (1) implement the investigation management, operations, and 
     case methods development processes recommendations in the 
     report; and
       (2) effectively identify and investigate complaints of 
     unfair and anti-competitive practices, and enforce the 
     Packers and Stockyards Act, 1921.
       (c) Training.--Not later than September 21, 2001, the 
     Secretary of Agriculture shall develop and implement a 
     training program for staff of the Department of Agriculture 
     engaged in investigations of complaints of unfair and anti-
     competitive activity, drawing on existing training materials 
     and programs available at the Department of Justice and the 
     Federal Trade Commission, to the extent practicable.

     SEC. 3. REPORT.

       Title IV of the Packers and Stockyards Act, 1921 is amended 
     by--
       (1) redesignating section 415 (7 U.S.C. 229) as section 
     416; and
       (2) inserting after section 414 the following:
       ``Sec. 415. Not later than March 1 of each year, the 
     Secretary shall submit to Congress and make publicly 
     available a report that--
       ``(1) assesses the general economic state of the cattle and 
     hog industries; and
       ``(2) identifies business practices or market operations or 
     activities in those industries that represent possible 
     violations of this Act or are inconsistent with the goals of 
     this Act.''.

     SEC. 4. IMPLEMENTATION REPORT.

       The Secretary of Agriculture shall report to Congress on 
     October 1, 2001, on the actions taken to comply with section 
     2.
                                 ______
                                 
      By Mrs. BOXER:
       S. 3093. A bill to require the Federal Energy Regulatory 
     Commission to roll back the wholesale price of electric 
     energy sold in the Western System Coordinating Council, and 
     for other purposes; to the Committee on Energy and Natural 
     Resources.


          the halt electricity price-gouging in san diego act

  Mrs. BOXER. Mr. President, today I am introducing a very important 
bill, the Halt Electricity Price-gouging in San Diego Act. This bill, a 
companion to the bill introduced in the House on September 7, 2000 by 
Congressman Filner, sends a loud and clear signal to electric companies 
in California that the federal government will not tolerate price 
gouging of our people.
  California is currently experiencing an energy crisis, particularly 
in San Diego. Energy supplies are barely adequate on any given day to 
meet demand. Wholesale electricity prices have soared, causing San 
Diego Gas and Electric to pass along increased costs to consumers and 
resulting in bills that have increased as much as 300 percent in the 
San Diego area.
  Small business owners and people on small or fixed incomes, 
especially the elderly, are particularly suffering. Other utilities in 
the state have similar supply and cost problems, causing losses in the 
hundreds of millions of dollars.
  This bill would direct the Federal Energy Regulatory Commission 
(FERC) to impose price caps on wholesale electricity prices. The bill 
would also require power suppliers to refund fees charged above the 
FERC-imposed price cap since June 1, 2000. The precise total of refunds 
due would be determined by the Federal Energy Regulatory Commission.
  I urge FERC to act swiftly and bring relief to those who have been 
hit by this terrible situation.
  The fight for fair utility rates is going to be difficult and may 
require a number of other solutions. I will continue to work with 
Congressman Filner and others to ensure that we end the crisis and 
prevent similar incidents in California and elsewhere in the United 
States.

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