[Congressional Record (Bound Edition), Volume 146 (2000), Part 8]
[Senate]
[Pages 11200-11233]
[From the U.S. Government Publishing Office, www.gpo.gov]



        NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2001

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of S. 2549, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (S. 2549) to authorize appropriations for fiscal 
     year 2001 for military activities of the Department of 
     Defense, for military construction, and for defense 
     activities of the Department of Energy, to prescribe 
     personnel strengths for such fiscal year for the Armed 
     Forces, and for other purposes.

  Pending:

       Smith of New Hampshire amendment No. 3210, to prohibit 
     granting security clearances to felons.
       Warner/Dodd amendment No. 3267, to establish a National 
     Bipartisan Commission on Cuba to evaluate United States 
     policy with respect to Cuba.

  Mr. WARNER. Madam President, if my recollection serves me, the senior 
Senator from Massachusetts was to offer an amendment which would be the 
subject of debate for some period of time. That would be followed by 
the senior Senator from Utah, Mr. Hatch, who likewise will offer an 
amendment that would be the subject of debate. I see my distinguished 
colleague. I yield to him for any clarification he wishes to make of my 
statement.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, I am here in part today to offer Senator 
Kennedy's amendment on his behalf and to speak in support of it. If the 
good Senator from Virginia is ready and wishes to do that, we could 
perhaps go through some of the cleared amendments on the authorization 
bill. I am

[[Page 11201]]

happy to do it either way, to join with him in offering those 
amendments now for a few minutes and then to introduce the Kennedy 
amendment, if he would like.
  The PRESIDING OFFICER. The Chair wishes to inform both Senators that 
the unanimous consent request was modified a brief time ago to provide 
for the Senator from Utah to offer his amendment at 4 o'clock.
  Mr. WARNER. Madam President, I am glad to be informed of that.
  The PRESIDING OFFICER. It did not affect the positioning of the 
amendment of the Senator from Massachusetts, which the Chair believes 
is to be offered first.
  Mr. LEVIN. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. At this time, Senator Levin and I will act on some 
cleared amendments.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Madam President, so we keep this clear, there is a 
unanimous consent agreement that is currently in place, as modified, so 
that immediately following the introduction of the Kennedy amendment 
and Senators speaking thereon, at 4 o'clock Senator Hatch would then 
introduce his amendment; is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LEVIN. Madam President, I ask unanimous consent that we maintain 
that unanimous consent agreement in place without modification, exempt 
that prior to my offering the Kennedy amendment, it be in order for the 
Senator from Virginia to proceed with the cleared amendments, as he has 
indicated. I further ask unanimous consent that immediately following 
my introduction of the Kennedy amendment and speaking thereon, the 
Senator from Minnesota be recognized to speak in support of the Kennedy 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Virginia.


                           Amendment No. 3458

(Purpose: To clarify the duty of the Department of Veterans Affairs to 
                     assist claimants for benefits)

  Mr. WARNER. Madam President, on behalf of Senator McCain, I offer an 
amendment that would clarify that the Secretary of Veterans Affairs 
must assist claimants in developing claims for VA benefits.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. McCain, 
     proposes an amendment numbered 3458.

  The amendment is as follows:

       On page 239, following line 22, add the following:

     SEC. 656. CLARIFICATION OF DEPARTMENT OF VETERANS AFFAIRS 
                   DUTY TO ASSIST.

       (a) In General.--Section 5107 of title 38, United States 
     Code, is amended to read as follows:

     ``Sec. 5107 Assistance to claimants; benefit of the doubt; 
       burden of proof

       ``(a) The Secretary shall assist a claimant in developing 
     all facts pertinent to a claim for benefits under this title. 
     Such assistance shall include requesting information as 
     described in section 5106 of this title. The Secretary shall 
     provide a medical examination when such examination may 
     substantiate entitlement to the benefits sought. The 
     Secretary may decide a claim without providing assistance 
     under this subsection when no reasonable possibility exists 
     that such assistance will aid in the establishment of 
     entitlement.
       ``(b) The Secretary shall consider all evidence and 
     material of record in a case before the Department with 
     respect to benefits under laws administered by the Secretary 
     and shall give the claimant the benefit of the doubt when 
     there is an approximate balance of positive and negative 
     evidence regarding any issue material to the determination of 
     the matter.
       ``(c) Except when otherwise provided by this title or by 
     the Secretary in accordance with the provisions of this 
     title, a person who submits a claim for benefits under a law 
     administered by the Secretary shall have the burden of 
     proof.''.
       (b) Clerical Amendment.--The table of sections at the 
     beginning of chapter 51 of that title is amended by striking 
     the item relating to section 5017 and inserting the following 
     new item:

``5107 Assistance to claimants; benefit of the doubt; burden of 
              proof.''.

  Mr. LEVIN. Madam President, this amendment has been cleared. We 
support it.
  Mr. WARNER. I urge adoption of the amendment.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3458) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3459

  (Purpose: To authorize the Secretary of Veterans Affairs to furnish 
 headstones or markers for marked graves of, or otherwise commemorate, 
                          certain individuals)

  Mr. LEVIN. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Dodd, 
     proposes an amendment numbered 3459.

  The amendment is as follows:

       On page 415, between lines 2 and 3, insert the following:

     SEC. 1061. AUTHORITY TO PROVIDE HEADSTONES OR MARKERS FOR 
                   MARKED GRAVES OR OTHERWISE COMMEMORATE CERTAIN 
                   INDIVIDUALS.

       (a) In General.--Section 2306 of title 38, United States 
     Code, is amended--
       (1) in subsections (a) and (e)(1), by striking ``the 
     unmarked graves of''; and
       (2) by adding at the end the following:
       ``(f) A headstone or marker furnished under subsection (a) 
     shall be furnished, upon request, for the marked grave or 
     unmarked grave of the individual or at another area 
     appropriate for the purpose of commemorating the 
     individual.''.
       (b) Applicability.--(1) Except as provided in paragraph 
     (2), the amendment to subsection (a) of section 2306 of title 
     38, United States Code, made by subsection (a) of this 
     section, and subsection (f) of such section 2306, as added by 
     subsection (a) of this section, shall apply with respect to 
     burials occurring before, on, or after the date of the 
     enactment of this Act.
       (2) The amendments referred to in paragraph (1) shall not 
     apply in the case of the grave for any individual who died 
     before November 1, 1990, for which the Administrator of 
     Veterans' Affairs provided reimbursement in lieu of 
     furnishing a headstone or marker under subsection (d) of 
     section 906 of title 38, United States Code, as such 
     subsection was in effect after September 30, 1978, and before 
     November 1, 1990.

  Mr. LEVIN. Madam President, this amendment would authorize the 
Secretary of Veterans Affairs to furnish headstones or markers for 
certain individuals. I believe the amendment has been cleared on both 
sides.
  Mr. WARNER. That is correct.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3459) was agreed to.
  Mr. LEVIN. Madam President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3460

 (Purpose: To add $30,000,000 for the Navy for the procurement of Gun 
    Mount modifications; and to offset the increase by reducing by 
 $30,000,000 the amount authorized to be appropriated for the Navy for 
  procurement for aircraft ($13,100,000 from the amount for the block 
  modification upgrade program for P-3 aircraft, $9,000,000 from the 
  amount for the H-1 series to reclaim and convert aircraft from the 
aerospace maintenance and regeneration center, and $7,900,000 from the 
               amount for procurement of SH-60R aircraft)

  Mr. LEVIN. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Warner, 
     proposes an amendment numbered 3460.

  The amendment is as follows:

       On page 17, line 7, strike ``$1,479,950,000'' and insert 
     ``$1,509,950,000''.

[[Page 11202]]

       On page 17, line 5, strike ``$8,745,958,000'' and insert 
     ``$8,715,958,000''.

  Mr. LEVIN. This amendment authorizes modifications for gun mounts for 
surface ships.
  Mr. WARNER. This amendment has been cleared by both sides.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3460) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3461

    (Purpose: To provide, with an offset, $8,000,000 for research, 
  development, test, and evaluation for the Air Force for Electronic 
    Warfare Development (PE604270F) for the Precision Location and 
                     Identification Program (PLAID)

  Mr. LEVIN. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Cleland, for 
     himself and Mr. Coverdell, proposes an amendment numbered 
     3461.

  The amendment is as follows:

       On page 48, between lines 20 and 21, insert the following:

     SEC. 222. PRECISION LOCATION AND IDENTIFICATION PROGRAM 
                   (PLAID).

       (a) Increase in Amount.--(1) The amount authorized to be 
     appropriated by section 201(3) for research, development, 
     test, and evaluation for the Air Force is hereby increased by 
     $8,000,000.
       (2) Of the amount authorized to be appropriated by section 
     201(3), as increased by paragraph (1), the amount available 
     for Electronic Warfare Development (PE604270F) is hereby 
     increased by $8,000,000, with the amount of such increase 
     available for the Precision Location and Identification 
     Program (PLAID).
       (b) Offset.--The amount authorized to be appropriated by 
     section 201(1) for research, development, test, and 
     evaluation for the Army is hereby decreased by $8,000,000, 
     with the amount of the reduction applied to Electronic 
     Warfare Development (PE604270A).

  Mr. LEVIN. Madam President, this amendment would add $8 million for 
research, development, test, and evaluation for the Air Force for 
Electronic Warfare Development for the Precision Location and 
Identification Program. I believe the amendment has been cleared by the 
other side.
  Mr. WARNER. That is correct.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3461) was agreed to.
  Mr. LEVIN. Madam President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3462

 (Purpose: To add $30,000,000 for the Navy for the procurement of CIWS 
MODS for block 1B modifications; and to offset the increase by reducing 
 by $30,000,000 the amount authorized to be appropriated for the Navy 
for procurement for the block modification upgrade program for the P-3 
                               aircraft)

  Mr. WARNER. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner] proposes an 
     amendment numbered 3462.

  The amendment is as follows:
       On page 17, line 7, strike ``$1,479,950,000'' and insert 
     ``$1,509,950,000''.
       On page 17, line 5, strike ``$8,745,958,000'' and insert 
     ``$8,715,958,000''.

  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3462) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3463

   (Purpose: To require a report on submarine rescue support vessels)

  Mr. LEVIN. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Ms. Landrieu, 
     proposes an amendment numbered 3463.

  The amendment is as follows:

       On page 378, between lines 19 and 20, insert the following:

     SEC. 1027. REPORT ON SUBMARINE RESCUE SUPPORT VESSELS.

       (a) Requirement.--The Secretary of the Navy shall submit to 
     Congress, together with the submission of the budget of the 
     President for fiscal year 2002 under section 1105 of title 
     31, United States Code, a report on the plan of the Navy for 
     providing for submarine rescue support vessels through fiscal 
     year 2007.
       (b) Content.--The report shall include a discussion of the 
     following:
       (1) The requirement for submarine rescue support vessels 
     through fiscal year 2007, including experience in changing 
     from the provision of such vessels from dedicated platforms 
     to the provision of such vessels through vessel of 
     opportunity services and charter vessels.
       (2) The resources required, the risks to submariners, and 
     the operational impacts of the following:
       (A) Chartering submarine rescue support vessels for terms 
     of up to five years, with options to extend the charters for 
     two additional five-year periods.
       (B) Providing submarine rescue support vessels using vessel 
     of opportunity services.
       (C) Providing submarine rescue support services through 
     other means considered by the Navy.

  Mr. LEVIN. Madam President, this amendment requires the Secretary of 
the Navy to submit a report on the submarine rescue support vessels. I 
believe it has been cleared by the other side.
  Mr. WARNER. That is correct.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3463) was agreed to.
  Mr. LEVIN. Madam President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3464

   (Purpose: To require a GAO-convened independent study of the OMB 
                         Circular A-76 process)

  Mr. WARNER. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner] proposes an 
     amendment numbered 3464.

  The amendment is as follows:
       On page 303, between lines 6 and 7, insert the following:

     SEC. 814. STUDY OF OFFICE OF MANAGEMENT AND BUDGET CIRCULAR 
                   A-76 PROCESS.

       (a) GAO-Convened Panel.--The Comptroller General shall 
     convene a panel of experts to study rules, and the 
     administration of the rules, governing the selection of 
     sources for the performance of commercial or industrial 
     functions for the Federal Government from between public and 
     private sector sources, including public-private competitions 
     pursuant to the Office of Management and Budget Circular A-
     76. The Comptroller General shall be the chairman of the 
     panel.
       (b) Composition of Panel.--(1) The Comptroller General 
     shall appoint highly qualified and knowledgeable persons to 
     serve on the panel and shall ensure that the following groups 
     receive fair representation on the panel:
       (A) Officers and employees of the United States.
       (B) Persons in private industry.
       (C) Federal labor organizations.
       (2) For the purposes of the requirement for fair 
     representation under paragraph (1), persons serving on the 
     panel under subparagraph (C) of that paragraph shall not be 
     counted as persons serving on the panel under subparagraph 
     (A) or (B) of that paragraph.
       (c) Participation by Other Interested Parties.--The 
     Comptroller General shall ensure that the opportunity to 
     submit information and views on the Office of Management and 
     Budget Circular A-76 process to the panel for the purposes of 
     the study is accorded to all interested parties, including 
     officers and employees of the United States not serving on 
     the panel and entities in private industry and 
     representatives of federal labor organizations not 
     represented on the panel.
       (d) Information From Agencies.--The panel may secure 
     directly from any department or agency of the United States 
     any information that the panel considers necessary

[[Page 11203]]

     to carry out a meaningful study of administration of the 
     rules described in subsection (a), including the Office of 
     Management and Budget Circular A-76 process. Upon the request 
     of the Chairman of the panel, the head of such department or 
     agency shall furnish the requested information to the panel.
       (e) Report.--The Comptroller General shall submit a report 
     on the results of the study to Congress.
       (f) Definition.--In this section, the term ``federal labor 
     organization'' has the meaning given the term ``labor 
     organization'' in section 7103(a)(4) of title 5, United 
     States Code.

  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3464) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3465

 (Purpose: To authorize a land conveyance, Los Angeles Air Force Base, 
                              California)

  Mr. LEVIN. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. LEVIN], for Mrs. Feinstein, 
     proposes an amendment numbered 3465.

  The amendment is as follows:
       On page 543, strike line 20 and insert the following:

                    Part III--Air Force Conveyances

     SEC. 2861. LAND CONVEYANCE, LOS ANGELES AIR FORCE BASE, 
                   CALIFORNIA.

       (a) Conveyance Authorized.--The Secretary of the Air Force 
     may convey, by sale or lease upon such terms as the Secretary 
     considers appropriate, all or any portion of the following 
     parcels of real property, including improvements thereon, at 
     Los Angeles Air Force Base, California:
       (1) Approximately 42 acres in El Segundo, California, 
     commonly known as Area A.
       (2) Approximately 52 acres in El Segundo, California, 
     commonly known as Area B.
       (3) Approximately 13 acres in Hawthorne, California, 
     commonly known as the Lawndale Annex.
       (4) Approximately 3.7 acres in Sun Valley, California, 
     commonly known as the Armed Forces Radio and Television 
     Service Broadcast Center.
       (b) Consideration.--As consideration for the conveyance of 
     real property under subsection (a), the recipient of the 
     property shall provide for the design and construction on 
     real property acceptable to the Secretary of one or more 
     facilities to consolidate the mission and support functions 
     at Los Angeles Air Force Base. Any such facility must comply 
     with the seismic and safety design standards for Los Angeles 
     County, California, in effect at the time the Secretary takes 
     possession of the facility.
       (c) Leaseback Authority.--If the fair market value of a 
     facility to be provided as consideration for the conveyance 
     of real property under subsection (a) exceeds the fair market 
     value of the conveyed property, the Secretary may enter into 
     a lease for the facility for a period not to exceed 10 years. 
     Rental payments under the lease shall be established at the 
     rate necessary to permit the lessor to recover, by the end of 
     the lease term, the difference between the fair market value 
     of a facility and the fair market value of the conveyed 
     property. At the end of the lease, all right, title, and 
     interest in the facility shall vest in the United States.
       (d) Appraisal of Property.--The Secretary shall obtain an 
     appraisal of the fair market value of all property and 
     facilities to be sold, leased, or acquired under this 
     section. An appraisal shall be made by a qualified appraiser 
     familiar with the type of property to be appraised. The 
     Secretary shall consider the appraisals in determining 
     whether a proposed conveyance accomplishes the purpose of 
     this section and is in the interest of the United States. 
     Appraisal reports shall not be released outside of the 
     Federal Government, other than the other party to a 
     conveyance.
       (e) Description of Property.--The exact acreage and legal 
     description of real property to be conveyed under subsection 
     (a) or acquired under subsection (b) shall be determined by a 
     survey satisfactory to the Secretary. The cost of the survey 
     shall be borne by the recipient of the property.
       (f) Exemption.--Section 2696 of title 10, United States 
     Code, does not apply to the conveyance authorized by 
     subsection (a).
       (g) Additional Terms and Conditions.--The Secretary may 
     require such additional terms and conditions in connection 
     with a conveyance under subsection (a) or a lease under 
     subsection (c) as the Secretary considers appropriate to 
     protect the interests of the United States.

                 Part IV--Defense Agencies Conveyances

  Mr. WARNER. Madam President, I would like to highlight the work of 
Congressman Steve Kuykendall concerning this important amendment to the 
National Defense Authorization Act for Fiscal Year 2001. His tireless 
efforts over the past several months ensured this legislation was not 
only included in the chairman's mark during the House Armed Services 
Committee markup of H.R. 4205, but also that it remained unchanged 
during the debate on the House floor. Although I am confident that we 
could have resolved this issue in conference, there is always some risk 
when the House and Senate do not have identical legislation provisions. 
As a thorough legislator unwilling to take this risk, Mr. Kuykendall 
immediately sought my assistance after the House had acted on the bill 
to include the proposal in the Senate's defense authorization 
legislation. By ensuring that the land-for-building swap language is 
included in both the House and Senate authorization bills, Mr. 
Kuykendall has guaranteed that this innovative solution will appear in 
the final defense authorization legislation sent to the President for 
signature. I was glad to work with my colleague from the house to 
include his language in our bill, and appreciate Senator Feinstein's 
support on this effort.
  Mr. LEVIN. Madam President, this amendment would authorize the 
Secretary of the Air Force to convey a fair market value of 
approximately 110 acres at the Los Angeles Air Force Base. I believe 
this amendment has been cleared.
  Mr. WARNER. That is correct.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3465) was agreed to.
  Mr. LEVIN. Madam President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3466

   (Purpose: To provide an additional amount of $92,000,000 for the 
   procurement of remanufactured AV-8B aircraft for the Navy; and to 
offset the increase by reducing the amount provided for the procurement 
 of UC-35 aircraft for the Navy by $33,400,000, by reducing the amount 
 provided for the procurement of automatic flight control systems for 
EA-6B aircraft by $17,700,000, and by reducing the amount provided for 
  engineering change proposal 583 for FA-18 aircraft for the Navy by 
                              $40,900,000)

  Mr. WARNER. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. WARNER], for Mr. Santorum, 
     proposes an amendment numbered 3466.
  The amendment is as follows
       On page 31, between lines 18 and 19, insert the following:

     SEC. 126. REMANUFACTURED AV-8B AIRCRAFT.

       Of the amount authorized to be appropriated by section 
     102(a)(1)--
       (1) $318,646,000 is available for the procurement of 
     remanufactured AV-8B aircraft;
       (2) $15,200,000 is available for the procurement of UC-35 
     aircraft;
       (3) $3,300,000 is available for the procurement of 
     automatic flight control systems for EA-6B aircraft; and
       (4) $46,000,000 is available for engineering change 
     proposal 583 for FA-18 aircraft.

  Mr. WARNER. This amendment has been cleared on both sides. I urge its 
adoption.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3466) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3467

 (Purpose: To make available, with an offset, $5,000,000 for research, 
  development, test, and evaluation for the Navy for the Information 
       Technology Center and Human Resource Enterprise Strategy)

  Mr. LEVIN. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:


[[Page 11204]]

       The Senator from Michigan [Mr. Levin], for Ms. Landrieu, 
     proposes an amendment numbered 3467.

  The amendment is as follows:

       On page 48, between lines 20 and 21, insert the following:

     SEC. 222. NAVY INFORMATION TECHNOLOGY CENTER AND HUMAN 
                   RESOURCE ENTERPRISE STRATEGY.

       (a) Availability of Increased Amount.--(1) Of the amount 
     authorized to be appropriated by section 201(2), for 
     research, development, test, and evaluation for the Navy, 
     $5,000,000 shall be available for the Navy Program Executive 
     Office for Information Technology for purposes of the 
     Information Technology Center and for the Human Resource 
     Enterprise Strategy implemented under section 8147 of the 
     Department of Defense Appropriations Act, 1999 (Public Law 
     105-262; 112 Stat. 2341; 10 U.S.C. 113 note).
       (2) Amounts made available under paragraph (1) for the 
     purposes specified in that paragraph are in addition to any 
     other amounts made available under this Act for such 
     purposes.
       (b) Offset.--Of the amount authorized to be appropriated by 
     section 201(2), the amount available for Marine Corps Assault 
     Vehicles (PE603611M) is hereby reduced by $5,000,000.

  Mr. LEVIN. Madam President, this amendment adds $5 million to the 
authorization of the Navy's Information Technology Center. I believe 
this amendment has been cleared.
  Mr. WARNER. That is correct.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3467) was agreed to.
  Mr. LEVIN. Madam President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3468

   (Purpose: To increase the authorization of appropriations for the 
   Marine Corps for procurement by $2,000,000 for night vision (M203 
     tilting brackets), by $2,000,000 for 5/4T truck high mobility 
   multipurpose wheeled vehicles (including $1,500,000 for recruiter 
vehicles), and by $6,000,000 for the mobile electronic warfare support 
system; and to offset the total amount of the increase by reducing the 
authorization of appropriations for the Army for other procurement for 
         the family of medium tactical vehicles by $10,000,000)

  Mr. WARNER. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner] proposes an 
     amendment numbered 3468.

  The amendment is as follows:

       On page 17, line 13, strike ``$1,181,035,000'' and insert 
     ``$1,191,035,000''.
       On page 16, line 22, strike ``$4,068,570,000'' and insert 
     ``$4,058,570,000''.

  Mr. WARNER. This amendment would increase Marine Corps procurement 
accounts $10 million for various items. It has been cleared on both 
sides.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3468) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                Amendment No. 3469 To Amendment No. 3383

  Mr. LEVIN. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Kennedy, 
     proposes an amendment numbered 3469.

  The amendment is as follows:

       On page 2, strike line 24 and all that follows through page 
     3, line 3, and insert the following:
       (d) Offset.--The amount authorized to be appropriated by 
     section 201(4) for research, development, test, and 
     evaluation, Defense-wide is hereby decreased by $5,000,000, 
     with the amount of such decrease applied to computing systems 
     and communications technology (PE602301E).

  Mr. LEVIN. Madam President, this is a technical amendment to 
amendment No. 3383. I believe this has been cleared.
  Mr. WARNER. That is correct.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3469) to amendment No. 3383 was agreed to.
  Mr. LEVIN. Madam President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3470

   (Purpose: To modify the management and per diem requirements for 
 members subject to lengthy or numerous deployments; and to authorize 
          extensions of TRICARE managed care support contacts)

  Mr. WARNER. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for himself, Mr. 
     Hutchinson and Mr. Cleland, proposes an amendment numbered 
     3470.

  The amendment is as follows:

       On page 200, after line 23, insert the following:

     SEC. 566. MANAGEMENT AND PER DIEM REQUIREMENTS FOR MEMBERS 
                   SUBJECT TO LENGTHY OR NUMEROUS DEPLOYMENTS.

       (a) Management of Deployments of Members.--Section 586(a) 
     of the National Defense Authorization Act for Fiscal Year 
     2000 (Public Law 106-65; 113 Stat. 637) is amended in the 
     text of section 991 of title 10, United States Code, set 
     forth in such section 586(a)--
       (1) in subsection (a), by striking ``an officer in the 
     grade of general or admiral'' in the second sentence and 
     inserting ``the designated component commander for the 
     member's armed force''; and
       (2) in subsection (b)--
       (A) in paragraph (1), by inserting ``or homeport, as the 
     case may'' before the period at the end;
       (B) by redesignating paragraphs (2) and (3) as paragraphs 
     (3) and (4), respectively;
       (C) by inserting after paragraph (1) the following new 
     paragraph (2):
       ``(2) In the case of a member of a reserve component 
     performing active service, the member shall be considered 
     deployed or in a deployment for the purposes of paragraph (1) 
     on any day on which, pursuant to orders that do not establish 
     a permanent change of station, the member is performing the 
     active service at a location that--
       ``(A) is not the member's permanent training site; and
       ``(B) is--
       ``(i) at least 100 miles from the member's permanent 
     residence; or
       ``(ii) a lesser distance from the member's permanent 
     residence that, under the circumstances applicable to the 
     member's travel, is a distance that requires at least three 
     hours of travel to traverse.''; and
       (D) in paragraph (3), as redesignated by subparagraph (B) 
     of this paragraph--
       (i) by striking ``or'' at the end of subparagraph (A);
       (ii) by striking the period at the end of subparagraph (B) 
     and inserting ``; or''; and
       (iii) by adding at the end the following:
       ``(C) unavailable solely because of--
       ``(i) a hospitalization of the member at the member's 
     permanent duty station or homeport or in the immediate 
     vicinity of the member's permanent residence; or
       ``(ii) a disciplinary action taken against the member.''.
       (b) Associated Per Diem Allowance.--Section 586(b) of that 
     Act (113 Stat. 638) is amended in the text of section 435 of 
     title 37, United States Code, set forth in such section 
     586(b)--
       (1) in subsection (a), by striking ``251 days or more out 
     of the preceding 365 days'' and inserting ``501 or more days 
     out of the preceding 730 days''; and
       (2) in subsection (b), by striking ``prescribed under 
     paragraph (3)'' and inserting ``prescribed under paragraph 
     (4)''.
       (c) Review of Management of Deployments of Individual 
     Members.-- Not later than March 31, 2002, the Secretary of 
     Defense shall submit to the Committees on Armed Services of 
     the Senate and the House of Representatives a report on the 
     administration of section 991 of title 10, United States Code 
     (as added by section 586(a) of the National Defense 
     Authorization Act for Fiscal Year 2000), during the first 
     year that such section 991 is in effect. The report shall 
     include--
       (1) a discussion of the experience in tracking and 
     recording the deployments of members of the Armed Forces; and
       (2) any recommendations for revision of such section 991 
     that the Secretary considers appropriate.

     SEC. 567. EXTENSION OF TRICARE MANAGED CARE SUPPORT 
                   CONTRACTS.

       (a) Authority.--Notwithstanding any other provision of law, 
     the TRICARE managed care support contracts in effect, or in 
     final stages of acquisition as of September 30, 1999, may be 
     extended for four years, subject to subsection (b).
       (b) Conditions.--Any extension of a contract under 
     paragraph (1)--
       (1) may be made only if the Secretary of Defense determines 
     that it is in the best interest of the Government to do so; 
     and

[[Page 11205]]

       (2) shall be based on the price in the final best and final 
     offer for the last year of the existing contract as adjusted 
     for inflation and other factors mutually agreed to by the 
     contractor and the Government.

  Mr. WARNER. Madam President, this amendment would modify the 
management and per diem requirements for the military service members 
subject to lengthy deployments and to authorize extensions of TRICARE 
management care support contracts. This has been cleared on both sides.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3470) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3471

(Purpose: To require reports on the progress of the Federal Government 
            in developing information assurance strategies)

  Mr. LEVIN. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan [Mr. Levin], for Mr. Schumer and 
     Mr. Bennett, proposes an amendment numbered 3471.

  The amendment is as follows:

       On page 378, between lines 19 and 20, insert the following:

     SEC. 1027. REPORTS ON FEDERAL GOVERNMENT PROGRESS IN 
                   DEVELOPING INFORMATION ASSURANCE STRATEGIES.

       (a) Findings.--Congress makes the following findings:
       (1) The protection of our Nation's critical infrastructure 
     is of paramount importance to the security of the United 
     States.
       (2) The vulnerability of our Nation's critical sectors--
     such as financial services, transportation, communications, 
     and energy and water supply--has increased dramatically in 
     recent years as our economy and society have become ever more 
     dependent on interconnected computer systems.
       (3) Threats to our Nation's critical infrastructure will 
     continue to grow as foreign governments, terrorist groups, 
     and cyber-criminals increasingly focus on information warfare 
     as a method of achieving their aims.
       (4) Addressing the computer-based risks to our Nation's 
     critical infrastructure requires extensive coordination and 
     cooperation within and between Federal agencies and the 
     private sector.
       (5) Presidential Decision Directive No. 63 (PDD-63) 
     identifies 12 areas critical to the functioning of the United 
     States and requires certain Federal agencies, and encourages 
     private sector industries, to develop and comply with 
     strategies intended to enhance the Nation's ability to 
     protect its critical infrastructure.
       (6) PDD-63 requires lead Federal agencies to work with 
     their counterparts in the private sector to create early 
     warning information sharing systems and other cyber-security 
     strategies.
       (7) PDD-63 further requires that key Federal agencies 
     develop their own internal information assurance plans, and 
     that these plans be fully operational not later than May 
     2003.
       (b) Report Requirements.--(1) Not later than July 1, 2001, 
     the President shall submit to Congress a comprehensive report 
     detailing the specific steps taken by the Federal Government 
     as of the date of the report to develop infrastructure 
     assurance strategies as outlined by Presidential Decision 
     Directive No. 63 (PDD-63). The report shall include the 
     following:
       (A) A detailed summary of the progress of each Federal 
     agency in developing an internal information assurance plan.
       (B) The progress of Federal agencies in establishing 
     partnerships with relevant private sector industries.
       (2) Not later than 120 days after the date of the enactment 
     of this Act, the Secretary of Defense shall submit to 
     Congress a detailed report on the roles and responsibilities 
     of the Department of Defense in defending against attacks on 
     critical infrastructure and critical information-based 
     systems. The report shall include the following:
       (A) A description of the current role of the Department of 
     Defense in implementing Presidential Decision Directive No. 
     63 (PDD-63).
       (B) A description of the manner in which the Department is 
     integrating its various capabilities and assets (including 
     the Army Land Information Warfare Activity (LIWA), the Joint 
     Task Force on Computer Network Defense (JTF-CND), and the 
     National Communications System) into an indications and 
     warning architecture.
       (C) A description of Department work with the intelligence 
     community to identify, detect, and counter the threat of 
     information warfare programs by potentially hostile foreign 
     national governments and sub-national groups.
       (D) A definitions of the terms ``nationally significant 
     cyber event'' and ``cyber reconstitution''.
       (E) A description of the organization of Department to 
     protect its foreign-based infrastructure and networks.
       (F) An identification of the elements of a defense against 
     an information warfare attack, including the integration of 
     the Computer Network Attack Capability of the United States 
     Space Command into the overall cyber-defense of the United 
     States.

  Mr. LEVIN. This amendment provides for reports on the progress of the 
Federal Government in developing information assurance strategies. I 
believe this has also been cleared.
  Mr. WARNER. That is correct.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3471) was agreed to.
  Mr. LEVIN. Madam President, I move to reconsider the vote.
  Mr. WARNER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3472

 (Purpose: To reform Government information security by strengthening 
   information security practices throughout the Federal Government)

  Mr. WARNER. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Virginia [Mr. Warner], for Mr. Thompson, 
     for himself, Mr. Lieberman, Mr. Akaka, Mr. Cleland, Mr. 
     Helms, Mr. Voinovich, Mr. Abraham, and Ms. Collins, proposes 
     an amendment numbered 3472.

  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. THOMPSON. Madam President, I offer this amendment on behalf of 
myself as chairman of the Governmental Affairs Committee and Senator 
Lieberman, the committee's ranking minority member. This amendment 
deals with the important issue of information security at the 
Department of Defense and other Federal agencies. The amendment is 
essentially the same as S. 1993, a bill reported by our committee this 
past April.
  Senator Lieberman and I introduced the original S. 1993 last November 
as the result of the considerable time spent by the Governmental 
Affairs Committee last Congress examining the state of Federal 
government information systems. Numerous Governmental Affairs Committee 
hearings and General Accounting Office reports uncovered and identified 
systemic failures of government information systems which highlighted 
our nation's vulnerability to computer attacks--from international and 
domestic terrorists to crime rings to everyday hackers.
  Report after report, agency after agency, we learned that our 
nation's underlying information infrastructure is riddled with 
vulnerabilities which represent severe security flaws and risks to our 
national security, public safety and personal privacy.
  In fact, GAO believes the problems in the government's information 
technology systems to be so severe that it has put government-wide 
information security on its list of ``high-risk'' government programs--
programs which are most vulnerable to waste, fraud, abuse and 
mismanagement.
  For example, GAO told us:
  That unknown and unauthorized individuals were gaining access to 
highly sensitive unclassified information at the Department of Defense;
  That weaknesses in IRS computer security controls continue to place 
IRS systems and taxpayer data ``at serious risk to both internal and 
external attack'';
  That ``pervasive, serious weaknesses jeopardize State Department 
operations'';
  That ``many NASA mission-critical systems face serious risks'';
  That flight safety is jeopardized by weak computer security practices 
at FAA; and
  That, based on the most recent review of the government's 24 largest 
agencies, computer security weaknesses place critical government 
operations, such as national defense, tax

[[Page 11206]]

collection, law enforcement and benefit distribution, at risk.
  At our hearings, we learned from the Director of Central 
Intelligence, George Tenet, that information warfare or cyberterrorism 
has the potential to deal a crippling blow to our national security if 
strong measures are not taken to counter it. Potential threats range 
from national intelligence and military organizations, terrorists, 
criminals, industrial competitors, hackers, and disgruntled or disloyal 
insiders.
  Director Tenet stated that several countries, including Russia and 
China, have government-sponsored information warfare programs with both 
offensive and defensive applications. These countries see information 
warfare as a way of leveling the playing field against a stronger 
military power, such as the U.S.
  We learned from the Director of the National Security Agency, General 
Minihan, that severe deficiencies exist in our ability to respond to a 
coordinated attack on our national infrastructure and information 
systems.
  We heard from agents of the Social Security Administration's Office 
of Inspector General who described how computer crimes were committed 
by SSA employees. This demonstrated the danger of the ``inside threat'' 
to agencies that do not adequately monitor and limit access to computer 
information by their own employees.
  And finally, we heard from reformed hacker, Kevin Mitnick, and 
learned of his ability to crack into systems without ever touching a 
computer. He told us that, even if we did everything else right, 
without strong personnel security, nothing is safe. He described how he 
successfully tricked the employees of a multi-national company into 
giving him pass codes to the company's security access devices. He said 
``The human side of computer security is easily exploited and 
constantly overlooked.''
  And, yet, even with evidence from all of these various experts on how 
information systems should be managed to prevent against attacks, year 
after year, we continue to receive reports detailing significant 
security breaches at Federal agencies.
  The one thing that came through loud and clear is that at the core of 
the government problems is the absence of effective management. GAO 
told us ``Poor security program planning and management continue to be 
fundamental problems . . . What needs to emerge is a coordinated and 
comprehensive management strategy.''
  To identify potential management solutions, we asked GAO to study the 
management practices of organizations known for their superior security 
programs. When GAO looked at eight organizations--most of which were 
private companies--GAO found that these organizations implemented 
information security policies on an ongoing basis through a coordinated 
management framework.
  Agencies clearly must do more than establish programs and set 
management goals--agencies and the people responsible for managing 
information systems in those agencies must be held accountable for 
their actions.
  That is what Senator Lieberman and I intend with this amendment. The 
primary objective of the amendment is to address the management 
challenges associated with operating in the current interdependent 
computing environment. It will provide a coordinated and comprehensive 
management approach to protecting information.
  For example, the bill would:
  Vest overall government accountability within the highest levels of 
the Executive Branch [Deputy Director for Management at the Office of 
Management and Budget];
  Create specific management rules for agency heads, such as requiring 
agency-wide security programs;
  Require agencies to have an annual independent evaluation of their 
information security programs and practices;
  Focus on the importance of training programs and government-wide 
incident response handling.
  Our amendment reflects changes made to S. 1993 based on comments 
received from our colleagues in the Senate and working with the 
Department of Defense and others in the intelligence community, the 
Office of Management and Budget, the agency Inspectors General, and 
industry.
  We urge support of our amendment and believe that, through continued 
vigorous oversight, we will drive the Federal government to focus on 
improving its computer security deficiencies. I look forward to working 
with my colleagues to ensure that government information technology 
systems are secure and that the information within those systems is 
protected from further attacks.
  Mr. LIEBERMAN. Madam President, I want to thank Chairman Warner and 
Ranking Member Levin for their foresight in accepting the amended text 
of S. 1993, the Government Information Security Act, which was 
unanimously reported out of the Government Affairs Committee.
  We are now far enough into the digital age to understand both its 
promise and its pitfalls. Our booming economy is driven in large part 
by the dot.com entrepreneurs who are providing goods and services 
faster and more cost-effectively than ever before in our history. But 
we are also experiencing threats to our privacy, to the integrity of 
our digitized information, and even to our ability to use our computers 
freely.
  We know there will be trade-offs for the benefits government will 
reap in the digital age. But, I offer this sincere warning now: 
information security cannot be one of them. With this amendment, we 
would lay the groundwork for securing much of the government's 
electronic information. Above all else, protecting the integrity, the 
availability and the confidentiality of information stored on federal 
computers is central to serving taxpayers in the digital age. And we 
must be vigilant about it.
  Like the rest of the nation, the government is ever more dependent on 
automated information systems to store information and perform tasks. 
At hearings before the Government Affairs Committee last Congress, 
however, witnesses testified that such increased reliance has not been 
met by an equivalent strengthening of the security of those systems. It 
is chilling to think of less than perfect security in the context, for 
example, of tax and wage information the Internet Revenue Service 
maintains, troop movements monitored by the Defense Department, or 
public health threats analyzed by the Centers of Disease Control. 
Without proper security, government's dependence on computers would 
expose to exploitation all of this information--and much more.
  Indeed, some of this information may be in jeopardy right now. A 
series of General Accounting Office (GAO) studies found government 
computer security so lax that GAO put the entire apparatus on its list 
of ``high risk'' government programs. GAO reported in September 1998 
that inadequate controls over information systems at the Veterans 
Administration exposed many of its service delivery and management 
systems to disruption or misuse. In May 1998, the GAO gained 
unauthorized access to State Department networks, enabling the GAO, had 
it tried, to modify, delete or download data and shut down services. In 
May 1999, GAO reported that one of its test teams gained access to 
mission critical computer systems at NASA, which would have allowed the 
team to control spacecraft or alter scientific data returned from 
space.
  Our problem is not simply a technical one. It is also a cultural one. 
The federal government can purchase and implement the most advanced 
security programs it can afford but unless top government officials 
acknowledge that our future depends on information security, those 
programs will be meaningless. But even high-level attention to and 
responsibility for security will mean little unless everyone and anyone 
who uses a computer--which, these days, must include practically every 
government worker--does their part to ensure the security of the system 
on which they work. This amendment, therefore, focuses on good 
management practices to ensure secure government information systems.

[[Page 11207]]

  Had this amendment been in place earlier this year when the ``Love 
Bug'' and successive, mutating viruses wreaked havoc on the world's 
computers, government would have been better prepared to withstand the 
attack. I hope that government employees would have been more aware of 
the need to upgrade their systems' security software to ensure that 
such ``worms,'' as they are called, were barred from the system. And 
this amendment's training provisions would have helped to ensure that 
employees were versed in the dangers of opening attachments from 
unknown senders.
  The cornerstone of this amendment is the plan each agency must 
develop to protect sensitive federal information systems. Agency chief 
information officers (CIOs) would be responsible for developing and 
implementing the security programs, which must undergo annual 
evaluations and be subject to the approval of the Office of Management 
and Budget (OMB).
  Because we need to change our cultural attitudes toward information 
security, the OMB also would be responsible for establishing 
government-wide policies promoting security as a central part of each 
agency's operation. And we intend to hold agency heads accountable for 
implementing those policies. This amendment requires high-level 
accountability for the management of agency systems beginning with the 
Director of OMB and agency heads. Each agency's plan must reflect an 
understanding that computer security is an integral part of the 
development process for any new system. Agencies now tend to develop a 
system and consider security issues only as the system is about to go 
online.
  This amendment establishes an ongoing, periodic reporting, testing 
and evaluation process to gauge the effectiveness of agencies' policies 
and procedures. This would be accomplished through reviews of agency 
budgets, program performance and financial management. And the 
amendment requires an independent, annual evaluation of all information 
security practices and programs to be conducted by the agency's 
Inspector General, GAO or an independent external auditor. I hope that 
the IGs will use their limited resources wisely and use their 
discretion in targeting those areas of their agencies' programs which 
require the most attention. In addition, I hope that agency heads will 
work with their IGs, especially when it comes to sharing information on 
potential threats to agencies' systems.
  Our amendment requires that agencies report unauthorized intrusions 
into government systems. GSA currently has a program for reporting and 
responding to such incidents. The amendment requires agencies to use 
this reporting and monitoring system.
  The amendment requires that the national security and classified 
systems adhere to the same management structure as every other 
government system under our bill. This means they must develop a plan 
addressing security upgrades, although the plan need not be approved by 
OMB. To address particular concerns raised by the defense and 
intelligence communities, the amendment allows the heads of agencies 
with national security and classified systems to designate their own 
independent evaluators in the interest of protecting sensitive 
information and system vulnerabilities. And the Secretary of Defense, 
the Director of Central Intelligence, and other agency heads, as 
designated by the President, may develop their own procedures for 
detecting, reporting and responding to security incidents.
  Finally, President Clinton has proposed a very creative idea known as 
the Federal Cyber Service designed to strengthen the government's cadre 
of information security professionals. Our amendment authorizes this 
program and gives agencies the flexibility they need to implement it. 
The program includes scholarships in exchange for government service, 
retraining computer information specialists and, as part of our 
campaign to influence cultural behavior, proposals to promote cyber-
security awareness among Federal workers and high school and secondary 
school students.
  Since Senator Thompson and I introduced S. 1993 last November, we 
have worked closely with the Administration, the Department of Defense, 
the National Security Agency, the Department of Energy, the CIO 
Council, the Inspector General community, and interested parties 
outside government. We have made changes to address the concerns that 
have been raised and I am very pleased that the administration strongly 
supports the provisions.
  Witnesses testifying at the Governmental Affairs Committee hearing on 
S. 1993 were also very supportive of the bill. Jack Brock, Director of 
GAO's Governmentwide and Defense Information Systems Group in the 
Accounting and Information Management Division testified that ``the 
bill, in fact, incorporates the basic tenets of good security 
management found in our report on security practices of leading 
organizations. . . . '' He also said that ``the key to this process is 
recognizing that information security is not a technical matter of 
locking down systems, but rather a management problem. . . . Thus, it 
is highly appropriate that S. 1993 requires a risk management approach 
that incorporates these elements.''
  Roberta Gross, the Inspector General at the National Aeronautics and 
Space Administration testified that ``. . . S. 1993 is a very positive 
step in highlighting the importance of centralized oversight and 
coordination in responding to risks and threats to IT [information 
technology] security.'' S. 1993 ``. . . importantly recognizes that IT 
security is one of the most important issues in shaping future Federal 
planning and investment . . . the Act makes it clear that each agency 
must be far more vigilant and involved than current practices.''
  Another witness, James Adams, Chief Executive Officer of Defense, a 
security consulting firm, testified that S. 1993 is ``. . . thoughtful 
and badly needed legislation . . .'' which ``. . . takes a crucial step 
forward.'' Ken Watson of Cisco Systems noted hat S. 1993 is consistent 
with what industry has already been encouraging, that is that ``. . . 
security must be promoted as an integral component of each agency's 
business operations, and information technology security training is 
essential. . . .''
  Mr. President, it is my hope that, if enacted, this amendment will 
improve our computer security to the point where the operations of 
government in the digital age are performed with the privacy and well-
being of the American public in mind. Again, I am pleased the 
leadership of the Armed Services Committee has accepted this amendment 
because, in the digital age, there is no such thing as moving too 
quickly.
  The PRESIDING OFFICER. Without objection, the amendment is agreed to.
  The amendment (No. 3472) was agreed to.
  Mr. WARNER. Madam President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. WARNER. Madam President, I believe we will proceed in accordance 
with the order.
  Madam President, I rise this afternoon--14 days since the Senate 
first turned to consideration of the Fiscal Year 2001 Defense 
Authorization Bill--to, once again, emphasize the importance of the 
Senate passing this critical legislation. Our troops deployed around 
the world, many in harm's way, their families here at home, and all 
those who have answered the call to duty before them are waiting on the 
Senate to act.
  Since June 6 when the Senate first began consideration of the Defense 
Authorization bill we have had productive debate and dialogue. The 
Senate has spent four days debating and voting on this legislation, and 
the Committee has done a great deal of work during the ``down time''--
when the Senate was considering various appropriations bills--in 
clearing many of the amendments that are in order on the authorization 
bill. We now have a Unanimous Consent agreement for the next day and a 
half to deal with several pending amendments. In my view, there is 
perhaps an additional day's worth of debate and votes on the remaining 
amendments which we believe will be

[[Page 11208]]

offered to this bill. I urge my colleagues to work with the Committee 
on any remaining amendments so that we can pass this bill in the Senate 
and send a strong signal of support to our troops.
  Mr. President, I think it is useful to remind my colleagues of the 
amount of hard work that goes into the annual defense authorization 
bill. This year alone, the Armed Services Committee has conducted 50 
hearings related to the defense budget, and spent four days--15 hours--
in marking up the bill which is before the Senate.
  This bill, which we reported out of the Senate Armed Services 
Committee on May 12th with bipartisan support, is a good bill which 
will have a positive impact on our nation's security, and on the 
welfare of the men and women of the Armed Forces and their families. It 
is a fair bill. It provides a $4.5 billion increase in defense 
spending--consistent with the congressional budget resolution. But, the 
real beneficiaries of this legislation are our servicemen and women who 
will not only have better tools and equipment to do their jobs, but an 
enhanced quality of life for themselves and their families. We must 
show our support for these brave men and women all of whom make great 
sacrifices for our country and many of whom are in harm's way on a 
daily basis by passing this important legislation.
  I am privileged to have been associated with the Senate Armed 
Services Committee and the development of a defense authorization bill 
every year of my modest career here in the Senate--a career quickly 
approaching 22 years. The Senate has passed a defense authorization 
bill each and everyone of those years. In fact, the Senate has passed a 
defense authorization bill each year since 1961--since the beginning of 
the current authorization process. This year, the House passed its 
version of the defense authorization bill by an overwhelming vote of 
353-63. It is now the Senate's duty to fulfill its responsibilities on 
this important legislation.
  But our responsibility to consider and pass the annual defense 
authorization bill goes beyond statutory requirements and historical 
precedent. We must also be aware of the importance of this measure to 
our men and women in uniform around the world.
  U.S. military forces are involved in overseas deployments at an 
unprecedented rate. Currently, our troops are involved in over 10 
contingency operations around the globe. Over the past decade, our 
active duty manpower has been reduced by nearly a third, active Army 
divisions have been reduced by almost 50 percent, and the number of 
Navy ships has been reduced from 567 to 316. During this same period, 
our troops have been involved in 50 military operations worldwide. By 
comparison, from the end of the Vietnam War in 1975 until 1989, U.S. 
military forces were engaged in only 20 such military deployments.
  In an all-volunteer force, where increasing deployments and 
operations challenge the capabilities of our military to effectively 
meet those commitments, as well as challenge the efforts of our 
military to recruit and retain quality military personnel, we must 
embrace every opportunity to demonstrate our commitment to our military 
personnel. The National Defense Authorization Bill for Fiscal Year 2001 
sends this important message.
  Mr. President, I would like to take a moment to make my colleagues 
well aware of the impact of NOT passing The National Defense 
Authorization Bill for Fiscal Year 2001.
  With respect to personnel policy, the committee included legislation 
in the defense authorization bill for fiscal year 2001 to continue to 
support initiatives to address critical recruiting and retention 
shortfalls. In this regard, the committee increased compensation 
benefits and focused on improving military health care for our active 
duty and retired personnel and their families.
  Without this bill, there will be:
  No extension of TRICARE benefits to active duty family members in 
remote locations;
  No elimination of health care co-pays for active duty family members 
in TRICARE Prime;
  No Thrift Savings Plan for military personnel;
  No stipend for military families to eliminate their need to rely on 
food stamps McCain amendment);
  No five year pilot program to permit the Army to test several 
innovative approaches to recruiting; and
  No transit pass benefit for Defense Department commuters in the 
Washington area.
  Without this bill, almost every bonus and special pay incentive 
designed to recruit and retain service members will expire December 31, 
2000, including:
  Special pay for health professionals in critically short wartime 
specialities;
  Special pay for nuclear-qualified officers who extend their service 
commitment;
  Aviation officer retention bonus;
  Nuclear accession bonus;
  Nuclear career annual incentive bonus;
  Selected Reserve enlistment bonus;
  Selected Reserve re-enlistment bonus;
  Special pay for service members assigned to high priority reserve 
units;
  Selected Reserve affiliation bonus;
  Ready Reserve enlistment and re-enlistment bonuses;
  Loan repayment program for health professionals who serve in the 
Selected Reserve;
  Nurse officer candidate accession program;
  Accession bonus for registered nurses;
  Incentive pay for nurse anesthetists;
  Re-enlistment bonus for active duty personnel;
  Enlistment bonus for critical active duty specialities; and
  Army enlistment bonuses and the extension of this bonus to the other 
services.
  And, Mr. President, without this bill, the Congress will not meet 
it's commitment to our miliary retirees and their families to provide a 
comprehensive lifetime health care benefit, including full pharmacy 
services. Without this bill, military health care system benefits will 
continue to be denied to retirees and their dependents who reach age 65 
and become Medicare eligible. Military beneficiaries will lose the 
earned military health care benefit that this bill finally restores to 
them.
  The committee has carefully studied the recruiting and retention 
problems in our military. We have worked hard to develop this package 
to increase compensation and benefits. We believe it will go a long way 
to recruit new servicemembers and to provide the necessary incentives 
to retain mid-career personnel who are critical to the force.
  Mr. President, on many occasions I have shared my concerns about the 
threats posed to our military personnel and our citizens, both at home 
and abroad, by weapons of mass destruction: chemical, biological, 
radiological and cyber warfare. Whether these weapons are used on the 
battlefield or by a terrorist within the United States, we, as a 
nation, must be prepared.
  Without this bill, efforts by the committee to continue to ensure 
that the DOD is adequately funded and structured to deter and defeat 
the efforts of those intent on using weapons of mass destruction or 
mass disruption would not be implemented. Efforts that would not go 
forward without this bill include:
  Establishing a single point of contact for overall policy and 
budgeting oversight of the DOD activities for combating terrorism;
  Fully deploying 32 WMD-CST (formerly RAID) teams by the end of fiscal 
year 2001;
  Establishing an Information Security Scholarship Program to encourage 
the recruitment and retention of Department of Defense personnel with 
computer and network security skills; and
  Creating an Institute for Defense Computer Security and Information 
Protection to conduct research and critical technology development and 
to facilitate the exchange of information between the government and 
the private sector.
  Mr. President, I would like to briefly highlight some of the other 
major initiatives in this bill that would be at risk without the 
defense authorization bill:

[[Page 11209]]

  Without this bill, multi-year, cost-saving spending authority for the 
Bradley Fighting Vehicle and UH-60 ``Blackhawk'' helicopter would 
cease.
  Without this bill, there would not be a block buy for Virginia Class 
submarines. Without the block buy, there would be fewer opportunities 
to save taxpayer dollars by buying components--in a cost-effective 
manner--for the submarines.
  All military construction projects require both authorization as well 
as appropriations. Without this bill, over 360 military construction 
projects and 25 housing projects involving hundreds of critical family 
housing units would not be started.
  The Military Housing Privatization Initiative would expire in 
February 2001. Without this bill, the program would not be extended for 
an additional three years, as planned. The military services would not 
be able to privatize thousands of housing units and correct a serious 
housing shortage within the Department of Defense.
  Mr. President, it has been said that, ``Example is the best General 
Order.'' The Senate needs to take charge, move out, and pass the 
National Defense Authorization Bill for Fiscal Year 2001. This 
legislation is important to the nation and to demonstrate to the men 
and women in uniform, their families and those who have gone before 
them, our current and continuing support and commitment to them on 
behalf of a grateful nation.


                         Military Installations

  Mr. COVERDELL. First, I would like to thank Senator Warner and 
Senator Levin for their continued leadership on the Senate Armed 
Services Committee. Your efforts have helped reverse fourteen 
consecutive years of real decline in defense spending--a decline that 
has affected all aspects of our military, from morale to readiness. Our 
troops and our Nation are grateful for your leadership in stopping this 
decline.
  I would like to take a moment to engage the chairman in a colloquy on 
one particular area within this bill--military construction.
  Mr. WARNER. I thank the Senator for his kind words and would be glad 
to indulge him in a colloquy on this subject.
  Mr. COVERDELL. Of course, we are all appreciative of what the 
committee has done for our bases across the Nation. As the chairman 
knows, Georgia has a proud military tradition. Currently it is home to 
thirteen military installations representing all branches of our 
military and housing some of our armed service's most vital missions. 
As is the case at military installations across the country most of the 
bases in Georgia are in need of new infrastructure.
  Through my travels to Georgia's bases, I was struck in particular 
with the condition of the buildings at Fort Stewart in Hinesville, 
Georgia, home of the 3rd Infantry Division. As the chairman and ranking 
member know, the 3rd I.D. is the heavy division of the Army's 
Contingency Corps. It is ready to go at a moment's notice and is part 
of our Army's ``tip of the spear'' force.
  Despite this crucial mission, it is my understanding that Fort 
Stewart is the only major FORSCOM installation that still performs 
corps functions in World War II wooden buildings.
  Mr. WARNER. The Senator is correct.
  Mr. COVERDELL. It is clear to me that Fort Stewart needs more 
military construction dollars. However, I also understand that the 
committee and the Pentagon have certain parameters within they work to 
determine military construction dollars. I understand that one of the 
reasons Fort Stewart is not gaining authorization for military 
construction projects is that the projects I requested were not in the 
Pentagon's FYDP and that the committee uses the FYDP as its guide for 
authorizing military construction dollars. Is that correct?
  Mr. WARNER. The Senator from Georgia is correct. We see many projects 
that need funding. However, in distributing scarce resources we must 
work with the Pentagon's priorities. While base commanders may have 
different views of what their bases need, if those priorities do not 
correspond with the Pentagon's priorities then it is different for us 
to assess the military value of the various projects.
  Mr. COVERDELL. I thank the chairman. I have relayed similar views to 
Fort Stewart and will work with our other Georgia bases to ensure that 
they understand this process. I would like to ask the chairman how the 
committee views the situation at Fort Stewart.
  Mr. WARNER. We agree that Fort Stewart needs new construction dollars 
and worked very hard this year to do what we could to help. We are 
committed to Fort Stewart's future and look forward to working with 
you, the base and the Pentagon to help it in the future.
  Mr. COVERDELL. I thank the chairman for his remarks and look forward 
to working with him on this matter in the future.
  Mr. CLELAND. I would like to join my distinguished colleague, the 
senior Senator from Georgia, Senator Coverdell, in highlighting the 
critical needs of Fort Stewart in Georgia. I would also like to note my 
appreciation for the remarks of Chairman Warner and his recognition of 
Fort Stewart.
  I too would like to highlight the importance of Fort Stewart. Since 
its birth in 1940, Fort Stewart has seen a flurry of activity. Its 
original mission began as an anti-aircraft artillery training center 
and later evolved into a helicopter training facility, and is now home 
to 3rd Infantry Division. Fort Stewart has shown its importance during 
the Korean war, Vietnam war, the Persian Gulf war, and even during the 
Cuban missile crisis. Through the years, Fort Stewart has adapted to 
the changing landscape of our military missions. Despite this glorious 
history, Fort Stewart needs our attention. Fort Stewart has important 
military construction needs to provide the critical infrastructure to 
fulfill its mission. It is my hope that through increased attention 
from the Department of the Army, the Pentagon, and the Congress, Fort 
Stewart's needs can be addressed. I thank my colleagues for engaging in 
this colloquy regarding such a vital facility.


                           Amendment No. 3473

 (Purpose: To enhance Federal enforcement of hate crimes and for other 
                               purposes)

  Mr. LEVIN. Madam President, I send an amendment to the desk.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Michigan (Mr. Levin), for himself and 
     Senator Kennedy, proposes an amendment numbered 3473.

  Mr. LEVIN. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The text of the amendment is printed in today's Record under 
``Amendments Submitted.'')
  Mr. LEVIN. Madam President, the Kennedy proposal has two major 
provisions. First, it strengthens current law as it relates to hate 
crimes based on race, religion and nation origin. Second, it broadens 
the definition of hate crimes to include gender, sexual orientation, 
and disability.
  The two major provisions in the Kennedy amendment address specific 
loopholes in our current federal civil rights statute. Under current 
law, the federal government is limited in its ability to intervene in 
case unless it can be proved that the victim was engaged in one of six 
narrowly defined ``federally protected activities,'' such as enrolling 
in a public school, participating in a state or local program or 
activity, applying for or enjoying employment, serving as a juror, 
traveling in or using interstate commerce, and enjoying certain places 
of public accommodation.
  The other unduly severe limitation under current law is this: federal 
prosecution is limited to those crimes motivated by race, color, 
religion and national origin and does not allow for federal 
intervention in crimes motivated by a person's sexual orientation, 
gender, or disability.
  The Senate has the ability and the responsibility to pass the Kennedy 
amendment and send a clear message that America is an all-inclusive 
nation--one that does not tolerate acts of

[[Page 11210]]

violence based on bigotry and discrimination.
  Hate crimes are a special threat in a society founded on ``liberty 
and justice for all.'' Too many acts of violence and bigotry in the 
last years have put our nation's commitment to diversity in jeopardy. 
When Matthew Shepard, a gay student was severely beaten and left for 
dead or James Byrd, Jr. was dragged to death behind a pick-up truck, it 
was not only destructive for the victims and their families, but 
damaging to the victims' communities, and to our American ideals.
  When a member of the Aryan Nations walked into a Jewish Community 
Center day school and fired more than 70 rounds from his Uzi submachine 
gun, then killed a Filipino-American federal worker because he was 
considered a ``target of opportunity,'' it not only affected the 
families of the victims but all those who share the traits of the 
targeted individuals.
  In a united voice, we must not only condemn these acts of violence 
that terrorize Americans every day, but act against them. America's 
agenda will remain unfinished so long as incidents like those occur and 
statistics like the following threaten our people. According to the FBI 
Uniform Crime Reports, at least one hate crime occurs each hour. These 
are often acts of violence, not threats, verbal-abuse or hate speech, 
but criminal offenses.
  In 1998, there were 7,755 incidents involving 9,722 victims. Of those 
incidents, approximately 56 percent were motivated by racial bias; 18 
percent by religious bias; 16 percent by sexual-orientation bias; and 
the remainder by ethnicity/national origin bias, disability and 
multiple biases, and prejudices and hate.
  In my own home state of Michigan, according to the State Police, 
there were 578 hate crimes in the same year. According to Donald Cohen, 
director of Michigan's Anti-Defamation League, racist, anti-gay and 
anti-Semitic activity is on the rise. In October of 1998, Cohen, who 
monitors hate crimes for his organization said ``I can say I have seen 
more hate-group material circulated . . . in the last few months than I 
have seen in the prior two years.''
  As a result, civil rights and law enforcement officials, who were 
concerned about the rise of hate crimes in Michigan moved to counter 
them by founding the Michigan Alliance Against Hate Crimes. The 
Alliance is a statewide coalition working to provide support to victims 
of hate crimes and to identify, combat and eliminate such crimes.
  The group was already in place last September, when this crime was 
committed in Grand Rapids, Michigan: a 30-year-old white man, Charles 
Raab, beat unconscious an African-American man, Willie Jarrett, ran him 
over with a car three times and dragged him with the car for 80 feet, 
before he dislodged the victim and fled the scene. Witnesses said that 
during the scene, the attacker used racial slurs to describe his 
victim--who suffered wounds to his back, hands, chest, and shoulders, 
and had half of his ear torn off.
  The Michigan Alliance Against Hate Crimes immediately assembled a 
``rapid response team'' and worked with the local prosecutor to charge 
Raab, the attacker, under the Ethnic Intimidation Act--Michigan's hate 
crime law. In the end, Raab pleaded guilty to the charges against him 
and was sentenced to seven to twenty-five years in prison for the 
attack.
  The city of Grand Rapids, along with the Michigan Alliance Against 
Hate Crimes, made sure that the perpetrator of this heinous hate crime 
was prosecuted to the extent of the law. Unfortunately, not all hate 
crimes are prosecuted so successfully. There are several states without 
such Alliances and hate crimes are not prosecuted with success either 
because state or local authorities do not have adequate resources or 
personnel; state and local authorities aren't as incensed as they 
should be or decline to act for other reasons.
  In some cases, state or local authorities simply don't have 
jurisdiction to prosecute hate crime cases: 42 states have hate crime 
statutes but only 21 cover sexual orientation and disability and 22 
cover gender. Michigan's Ethnic Intimidation Act, for example, is 
limited to crimes incited by a person's race, color, religion, gender 
or national origin, and does not include crimes motivated by a person's 
sexual orientation or disability.
  The FBI Statistics show that the number of reported hate crimes based 
on sexual orientation is third only to those based on racial bias and 
religious bias.
  My home state of Michigan has had its share of hate crimes based on 
sexual orientation. Last summer, an 18-year-old boy leaving a gay 
nightclub in Grand Rapids, Michigan was met by an attacker who was 
waiting outside the club in a car. The assailant jumped the young man 
and slashed his face with a razor blade hospitalizing him for over a 
week. His face is permanently scarred.
  A few weeks ago in Detroit, a gay man was buying cigarettes at a gas 
station late at night and a car full of men pulled up, accosted him and 
asked if he was gay. When he just walked away the men became infuriated 
and beat him badly, shattering his skull and putting him in a coma for 
several days. The assailants have not been arrested.
  A gay man driving in Royal Oak, Michigan was allegedly harassed and 
intimidated by four other motorists in a nearby car. The assailants 
were screaming anti-gay epithets and succeeded in running him off the 
road and destroying his car. The assailants then screamed at the man, 
spit on him, and kicked in his window.
  The police officer investigating the case allegedly asked multiple 
questions about the driver's sexual orientation and sexual activity 
rather than the details of the accident. The four assailants were never 
charged and despite the fact that witnesses and crime specialists 
reconstructed the scene as told by the driver, the driver was convicted 
of reckless driving. Local media and community leaders were outraged 
and called it a miscarriage of justice.
  This and other such stories are examples of crimes that not only 
affect the fundamental rights of the victim, but deprive that victim of 
a sense of security and self worth. These crimes are just as damaging 
as those motivated by race or religion, but state authorities are 
limited in their ability to respond because Michigan's hate crimes 
statute is inadequate.
  Congress has the opportunity to take action against these and other 
hate crimes, which go unprosecuted at the state level, with the passage 
of the Kennedy hate crimes amendment. This amendment would expand the 
federal definition of hate crimes to include crime motivated by a 
person's sexual orientation, gender or disability adding to the current 
list of attacks motivated by race, color, religion or national origin.
  The Kennedy amendment would also broaden the federal government's 
authority to prosecute any hate crime based on race, color, religion or 
national origin. Currently, federal prosecution of hate crimes is 
limited and U.S. attorneys have had difficulties prosecuting cases--
that state authorities are unwilling or unable to prosecute--because of 
the need to prove that the victim of a hate crime was also targeted 
because of his participation in one of six specified federally 
protected activities. The statute's severe restrictions has prevented 
the federal government from prosecuting perpetrators of some of the 
most egregious hate crimes.
  For example, in recent years a jury acquitted three white 
supremacists who had assaulted African-Americans. After the trial, some 
of the jurors revealed that they felt racial animus had been 
established but did not believe there was sufficient evidence to show 
that the defendants intended to prevent the victims from engaging in a 
narrowly defined federally protected activity that the statute had 
provided.
  The Kennedy amendment will not make every hate crime a federal crime. 
Almost all hate crimes will remain the primary responsibility of sate 
and local law enforcement agencies. For these cases, broadening federal 
authority will permit joint federal-state investigations and may be 
useful to state and local authorities who will be able

[[Page 11211]]

to rely on investigatory and prosecutorial assiatnce from the 
Department of Justice. The Kennedy amendment makes grants of up to 
$100,000 available to state and local law enforcement agencies who have 
incurred extraordinary expenses associated with investigating and 
prosecuting hate crimes.
  For the few hate crimes that the Justice Department does act to make 
federal crimes, the Department will be required to use its authority 
sparingly, as is required with the existing authority to prosecute 
crimes motivated by racial or religious hatred. Prior to federally 
indicting someone, the Justice Department must certify and there is 
reasonable cause to believe that the crime was motivitated by bias and 
the U.S. attorney has consulted with the state or local law enforcement 
officials and determined one of the following situations is present, 
under the Kennedy amendment, to show we are not creating under this 
amendment a situation where the Federal Government is going to be 
prosecuting every hate crime. There are still restrictions built in 
here to rely more heavily on State and local law enforcement. If one of 
the following situations is present, then the U.S. attorney, under 
certain circumstances at least, would be authorized to proceed:
  No. 1, the state does not have jurisdiction or does not intend to 
exercise jurisdiction;
  No. 2, the state has requested that the federal government assume 
jurisdiction;
  No. 3, the state does not object to the federal government assuming 
jurisdiction;
  No. 4, or the state has completed prosecution and the verdict or 
sentence obtained under state law left demonstratively unvindicated the 
federal interest in eradicating bias-motivated violence.
  In addition, for crimes based on the three new categories--gender, 
sexual orientation, and disability, and in some instances, for crimes 
based on religion and national origin--the Kennedy amendment provides 
that the Federal Government must prove an interstate commerce 
connection showing that:
  No. 1, the defendant or the victim traveled across state lines;
  No. 2, the defendant or the victim used a channel, facility, or 
instrumentality of commerce;
  No. 3, the defendant used a firearm, explosive, incendiary device or 
other weapon that has traveled in commerce, or
  No. 4, the conduct interferes with commercial or other economic 
activity in which the victim is engaged at the time of conduct.
  Stated simply, the Kennedy hate crimes amendment will allow for more 
effective and just prosecutions of hate crimes. The alternative, the 
Hatch proposal, which will be before the Senate, neither addresses the 
problems with existing law--that the victim must be engaged in a 
narrowly specified federally protected activity; nor does it address 
the limited definition of a hate crime--which excludes sexual 
orientation, disability, and gender.
  More than 175 law enforcement, civil rights, civic and religious 
groups as well as 22 State Attorneys General support the Kennedy 
amendment, and the role it gives the federal government to prosecute 
individuals who have committed violent acts resulting from racist, 
anti-Semitic or homophobic motives. This legislation is also supported 
by the Justice Department, and is compliant with the recent Supreme 
Court decision United States v. Morrison. In a June 13, 2000 letter to 
Senator Kennedy, the Justice Department stated clearly that the 
amendment ``would be constitutional under governing Supreme Court 
precedents''
  Passage of this amendment will send the message that we are a country 
that treasures equality and tolerance. We will not condone the hate 
crimes that have plagued our nation and have had such a devastating 
impact on the families of Matthew Shepard, James Byrd, Jr. and too many 
others. I hope my colleagues will support the Kennedy amendment. This 
amendment will bring us closer to the time when all Americans have 
equal opportunities, and perpetrators of hate crimes receive swift and 
vigorous prosecution.
  I believe there is a unanimous consent order relative to the next 
speaker, but before the Senator from Minnesota speaks, I see the 
Senator from Oregon on the floor and I want to express my gratitude to 
him for the article that was in this morning's paper. It was an 
extremely beautifully written, heartfelt article. I hope every Member 
of this body has an opportunity to read it. I know the Senator from 
Oregon is too modest to do so. Therefore, I ask unanimous consent that 
article be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, June 19, 2000]

               Nationally: Why Hate Crimes Are Different

                          (By Gordon H. Smith)

       On June 7, 1998, James Byrd Jr. was dragged to death along 
     a dusty Texas road. On Oct. 12, 1998, Matthew Shepard was 
     beaten and left to die on a lonely Wyoming fence. They were 
     murdered not for their property, but for who they were--one 
     black, the other gay.
       Their brutal murders shocked the nation and spurred a 
     national debate over what can be done to prevent further hate 
     crimes and to ensure that perpetrators of such crimes are 
     brought to justice.
       The Senate soon will consider the Hate Crimes Prevention 
     Act of 2000. This act would authorize federal law enforcement 
     officers to aid and assist state and local police in the 
     pursuit and prosecution of hate crimes--even if state lines 
     have not been crossed.
       The act is controversial. Some believe that all crime is 
     hateful, and that by providing federal resources for hate 
     crimes we would be telling the victims of crimes committed 
     for other motives that they are not as important. I believe, 
     however, that hate crimes are different. While perpetrated 
     upon an individual, the violence is directed at a community.
       The most controversial element in this legislation is that 
     in addition to categories of race, religion, gender and 
     disability, it contains a category for sexual orientation. 
     Many in the Senate will oppose the legislation because they 
     feel that to legislate protections for gays and lesbians is 
     to legitimize homosexuality.
       I once shared that feeling, but no longer. One needn't 
     agree with all the goals of the gay community to help it 
     achieve fair treatment within our society. It is possible, 
     for example, to oppose gay marriage on religious and policy 
     grounds but to protect gays and lesbians against violence on 
     the same grounds. There is a biblical example and a present 
     duty to protect anyone in the public square who would be 
     stoned by the sanctimonious or the politically powerful.
       As a member of the Senate Foreign Relations Committee, I 
     have spoken against hate crimes of many kinds and in many 
     lands. For that reason, I cannot be silent at home. I cannot 
     forget the testimony given at a recent hearing by Elie 
     Wiesel:
       ``To hate is to deny the other person's humanity. It is to 
     see in `the other' a reason to inspire not pride but disdain, 
     not solidarity, but exclusion. It is to choose simplistic 
     phraseology instead of ideas. It is to allow its carrier to 
     feel stronger than `the other,' and thus superior to `the 
     other.' The hater . . . is vain, arrogant. He believes that 
     he alone possesses the key to truth and justice. He alone has 
     God's ear.''
       I often have told those who attempt to wield the sword of 
     morality against others that if they want to talk about sin, 
     go with me to church, but if they want to talk about policy, 
     go with me to the Senate. That is the separation of church 
     and state.
       At times, the law can and should be a teacher--and this is 
     one of them. Yes, in many ways, passage of the Hate Crimes 
     Prevention Act would be nothing more than a symbol. But it is 
     a symbol that can be filled with substance by changing hearts 
     and minds and by better protecting all our citizens, be they 
     disabled, female, black or gay. They are Americans all.

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Minnesota is to be recognized.
  Mr. WELLSTONE. Madam President, I say to my colleague, I will be very 
brief on this amendment. I will try to take less than 10 minutes 
because Senator Smith has taken a major leadership role. I know Senator 
Hatch will be speaking, and I am sure my colleague from Oregon will 
want to be here for that debate. The only reason I am taking this time 
right now is I won't be able to stay beyond the next 10 or 15 minutes. 
I will be brief. Then the country will have a chance to hear from the 
Senator from Oregon. I have not read the piece, but I thank the Senator 
very much for his leadership.
  I am not a lawyer, but I want to try to briefly summarize what this 
bill is about. Senator Levin always does a

[[Page 11212]]

more masterful job of that than I can. Then I will talk about why I 
think this piece of legislation is so important for Minnesota and 
people in the country.
  When it comes to hate crimes based on race, religion, or national 
origin, this legislation essentially moves beyond the very restrictive 
language we have right now where we can't prosecute people who have 
committed violent crimes against someone unless that person was 
involved in some kind of federally protected activity. That is way too 
narrow a definition. We want to be in a position as a nation where the 
Federal Government can prosecute, for example, those who murdered James 
Byrd. It is that simple.
  We don't want to have such narrowly restrictive laws and language--
and this is where the amendment of the Senator from Utah doesn't do us 
any good at all--we don't want to have such a narrow definition that we 
can't prosecute people when they murder a James Byrd. I think it is 
that simple.
  Secondly, we further define the hate crime legislation applied to 
gender, disability, and sexual orientation when there is an interstate 
commerce nexus. And in this particular case what we want to make sure 
of is that as a national community, as the Senate, as the House of 
Representatives, we care deeply when a Matthew Shepard is murdered, 
and, indeed, the Federal Government can play a role, and those who 
commit such a murder because of someone's sexual orientation will be 
prosecuted, that they will pay the price.
  I know there have been some arguments made against this legislation. 
I am sure my colleague from Oregon will take up those arguments and 
deal with them in more depth, but as to the argument that somehow this 
takes on freedom of speech, we are not talking about freedom of speech. 
We are not talking about somebody in the pulpit saying whatever they 
want to say about people because of their sexual orientation, as much 
as I would be in disagreement with what I think would be prejudice or, 
I would argue, ignorance. But we are talking about an action; we are 
talking about when there is an act of violence perpetrated against 
someone because of their sexual orientation. I am not talking about 
speech. I am talking about violent action.
  I believe strongly in this amendment and am proud to support it 
because I think hate crimes are very special. I came to the human 
rights rally in Washington, DC--it seems as though it was yesterday; 
maybe it was a couple months ago--I wanted to speak, and I had an 
opportunity to introduce Judy and Dennis Shepard. That was, for me, a 
much greater honor than actually giving a long speech or speaking at 
all. I wanted to introduce them. I have seen them at so many gatherings 
where they have been willing, as the parents of Matthew Shepard, who 
was murdered because of his sexual orientation, to go around the 
country and support other people and speak out and try to do everything 
they can in memory of their son, to make sure that this never happens 
again. I guess we cannot make sure it never happens again, but we can 
do everything possible to make sure that it never happens again.
  That is what this hate crimes amendment is all about--basically, what 
happens when there is an act of violence against someone because of the 
color of their skin or their religion. I am sensitive to this. My 
father was a Jewish immigrant born in the Ukraine, lived in Russia, 
fled persecution, and came to the United States of America because of 
religious persecution. When you have this kind of violence against 
someone because of their religion or their national origin or their 
gender or their disability or their race or their sexual orientation, 
it is terrorism because what you are saying to a whole lot of other 
people is it could happen to you, too. That is the purpose of a lot of 
these crimes. You are saying to other people who are gay and lesbian, 
you are saying to other people because of their religion, sometimes you 
are saying to other people because they are white--not that long ago I 
think it was in Pittsburgh we saw people murdered just because of the 
color of their skin; they were white--what you are saying with these 
kinds of hate crimes is: other people, you could be next.
  What you are doing is you are creating a whole second class of 
citizens who have to live their lives in terror. What you are doing is 
dehumanizing people. That is what these hate crimes are about.
  Now, we should have a high threshold--I am not a lawyer, but we 
should have a high threshold. We want to make sure that truly these are 
hate crimes. And believe me, that will have to be proven in our court 
system. But, colleagues, in all due respect, you have an amendment here 
that does a good job of getting beyond the very narrow definition so 
that, indeed, we have a definition of a hate crime that applies to the 
murder of a James Byrd; we have a definition of a hate crime that 
applies to the murder of a Matthew Shepard, and I don't know how 
Senators can vote against it. It is long past time that we passed such 
a law. We must and I hope we will.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH of OREGON. Madam President, I wish to say what is in my 
heart and why I as a Republican stand here in support of a Kennedy 
amendment on hate crimes.
  On June 7, 1998, when James Byrd, Jr., was dragged to death on a 
dusty Texas road, something happened to me. I was horrified beyond my 
ability to express it.
  On October 12, 1998, when Matthew Shepard was beaten to death on a 
Wyoming prairie, hung to a fence to die, something happened to me. I, 
again, had no ability to express the outrage and horror that I felt of 
such conduct and wondered: What is it in the heart of humankind that 
could perpetrate such an action upon a fellow human being?
  These were people who were murdered not for their property. They were 
murdered because of who they were. One was a black man and the other 
was a gay man. I think much of America felt the shock and revulsion 
that I did. Many of us began to look around and ask: What can I do in 
my sphere of influence? How can I help to see that this never happens 
again in my country?
  So I was attracted to the whole issue of hate crimes. This is a very 
controversial thing with many Senators. It is controversial because, 
frankly, of one clause. It is controversial because it includes a new 
category: ``. . . or sexual orientation.'' And many of my friends in 
the Senate believe that disqualifies it from consideration. But it 
seems to me that our duty as public officials is to help Americans help 
human beings however we find them; no matter what we may believe their 
sins are because all of us are sinful.
  Many will say that to legislate favorably towards a gay man is to 
legitimize homosexuality for our society. I used to have that feeling 
myself, but I do not any longer. I truly believe it is possible to 
object to a gay marriage and yet come to the defense of a gay person 
when it comes to violence. And I believe we have a duty to show up to 
work in the Federal Government when it comes to the issue of hate 
crimes. Some people believe that, well, all crime is hateful; don't 
designate some types of crime. But I tell you that I have come to 
realize that hate crimes are different in this respect. Hate crimes are 
visited upon one person, but they are really directed at an entire 
community--in one case, a black man in the African American community, 
and in the other case, a gay man in the gay and lesbian community. We 
need to help, and I believe the Kennedy amendment actually helps.
  Some see this as controversial because they will stand behind the 
argument of States rights; that we cannot defend these people at the 
Federal level because there are State officials and local officials 
where most police actions and prosecutions occur; that we should leave 
that to them. I had that feeling until I was visited by a group of 
conservative Republican law enforcement officers from Wyoming who said, 
in the case of Matthew Shepard: It would have helped a great deal had 
the Federal Government shown up with resources and support to help in 
the prosecution of this horrible tragedy.

[[Page 11213]]

  The Kennedy amendment allows this to happen, and I support it for 
that reason, because I believe we need to show up to work.
  As a member of the Foreign Relations Committee, I have spoken all 
over the globe against hate crimes of all kinds. Because of that, I 
cannot in good conscience remain silent about hate crimes in my own 
country. It is time to speak out, and it is time to vote on something 
that will actually make a difference.
  In my Subcommittee on European Affairs, I recently held a hearing on 
the issue of antisemitism. One of the most remarkable witnesses I have 
ever listened to in the Senate came to testify in that hearing. He is 
the Nobel Laureate Elie Wiesel. I will never forget what he said to our 
committee that day. He said:

       To hate is to deny the other person's humanity. It is to 
     see in ``the other'' a reason to inspire not pride, but 
     disdain; not solidarity, but exclusion. It is to choose 
     simplistic phraseology instead of ideas. It is to allow its 
     carrier to feel stronger than ``the other,'' and thus 
     superior to ``the other.'' The hater . . . is vain, arrogant. 
     He believes that he alone possesses the key to truth and 
     justice. He alone has God's ear.

  I am afraid there are some like that not just in Nazi Germany about 
which he was speaking, there are some like that today in Bosnia, in 
Yugoslavia, Kosovo, in Africa. There are haters still, and there are 
haters in our own country as well. We are trying to say, once and for 
all, that when it comes to hate and hate crimes that are directed at 
these minority communities who live among us as Americans: Your Federal 
Government cares, too. The Federal Government will show up to work. The 
Federal Government will try to use the law as well to teach the 
American people that there is no room for hate, and if you commit a 
hate crime, we will come after you with the full force of the law at 
the local, the State, and the Federal level, because while many will 
say this is just symbolism, I grant you it is in part, but it is 
symbolism that can be made substance if we change some hearts and 
minds. In that sense, the law can be a teacher.
  That is why I support the Kennedy amendment, because I think we need 
to change some hearts and minds, as well as some laws, so that the 
Federal Government can show up to work.
  I am going to do something I do not suppose is commonly done here, 
but I want to speak using a Scripture. I do this because I need to 
reach out, not to change the minds necessarily of some in my own 
political base who are the conservative Christians. They are my 
friends, and many of their views are views I hold. But on this issue, I 
believe we can care enough to change some hearts and minds. I believe 
that the God of Christianity, the God whom I worship, said on this 
Earth that by this shall all men know that ye are my disciples--if you 
have love one for another. He showed that in a remarkable episode, and 
I want to share it. I share it with my friends in the Christian 
community because we need to remember this story when we think somehow 
that we should not help a community because of what we think their sins 
may be.
  This is the story. It comes from the 8th Chapter of John:

       Jesus went unto the mount of Olives.
       And early in the morning he came again into the temple, and 
     all the people came unto him; and he sat down, and taught 
     them.
       And the scribes and Pharisees brought unto him a woman 
     taken in adultery; and when they had set her in the midst,
       They say unto him, Master, this woman was taken in 
     adultery, in the very act.
       Now Moses in the law commanded us, that such should be 
     stoned: but what sayest thou?
       This they said, tempting him, that they might have to 
     accuse him. But Jesus stooped down, and with his finger wrote 
     on the ground, as though he heard them not.
       So when they continued asking him, he lifted up himself, 
     and said unto them, He that is without sin among you, let him 
     first cast a stone at her.
       And again he stooped down, and wrote on the ground.
       And they which heard it, being convicted by their own 
     conscience, went out one by one, beginning at the eldest, 
     even unto the last: and Jesus was left alone, and the woman 
     standing in the midst.
       When Jesus had lifted up himself, and saw none but the 
     woman, he said unto her, Woman, where are those thine 
     accusers? hath no man condemned thee?
       She said, No man, Lord. And Jesus said unto her, Neither do 
     I condemn thee: go, and sin no more.

  This happened in a public square. This was a wonderful example of 
mercy and compassion. It was a wonderful occasion in which, in my view, 
the greatest of all stood up against violence, violence that was later 
visited upon Him with hatred.
  I point out that if you care about the American family and you 
perceive homosexuality as a threat to that family institution, remember 
that adultery, if you want to talk about sins, is a far greater threat 
to the American family than homosexuality.
  What I say to fellow Christians everywhere is, it is time to help. It 
is time to remember a story and an example. It is time to say to the 
gay community: I do not agree with you on everything, but I can help 
you on many things. And particularly when it comes to violence, 
particularly when it comes to dragging a man to death, particularly 
when it comes to seeing someone beaten to death on a fence, I would be 
ashamed if we did not act as the Federal Government to say: We can show 
up to work, we can help, we can teach, we can change hearts and minds, 
and we can turn the symbolism into substance by letting Federal 
authorities bring resources and help make a difference.
  I know I may not be in large numbers on my side of the aisle, but I 
hope they will consider what I have just said. All of the excuses that 
will be offered today--are we prosecuting people for their thoughts? 
No, we are prosecuting people for their actions that kill people.
  Some will say: There are limitations in the bill so that every hate 
crime is not a Federal crime. There are limitations that will trigger 
the Federal response. We will defer to the States.
  Some will say: What business is it of ours to put hate crimes on the 
Defense authorization bill? Some of the most horrible hate crimes I 
have read about have occurred within the military. It is our business 
to put it here if that is what it takes to pass it here.
  Some will say: Isn't every act of domestic violence or rape a hate 
crime? I say, it may well be. It may trigger Federal involvement. But 
just because it includes sexual orientation does not make those victims 
less American.
  Some will say: The Kennedy amendment is not constitutional. I believe 
it is constitutional. I believe it is OK to say we will help 
Americans--how we find them--whether they are black, whether they are 
disabled, or whether they are gay.
  So my remarks today, Madam President, are about having a bigger heart 
and making the Federal law big enough to include communities that are 
the most vulnerable among us.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Under the previous order, the hour of 4 
o'clock having arrived, the Senator from Utah is recognized to offer 
his amendment.


                           Amendment No. 3474

(Purpose: To authorize a comprehensive study and to provide assistance 
                  to State and local law enforcement)

  Mr. HATCH. Madam President, our Nation's recent history has been 
marred by some horrific crimes committed because the victim was a 
member of a particular class or group. The beating death of Matthew 
Shepard in Laramie, WY, and then the dragging death of James Byrd, Jr. 
in Jasper TX. These two spring readily to mind. I firmly believe that 
such hate-motivated violence is to be abhorred and that the Senate must 
raise its voice and lead on this issue.
  During the last 30 years, Congress has been the engine of progress in 
protecting civil rights and in driving us as a society increasingly 
closer to the goal of equal rights for all under the law.
  Historians will conclude, I have little doubt, that many of America's 
greatest strides in civil rights progress took place just before this 
present moment on history's grand timeline: Congress protected 
Americans from employment discrimination on the basis of race, sex, 
color, religion and national origin with the passage of the Civil 
Rights Act of 1964; Congress protected Americans from gender-based 
discrimination

[[Page 11214]]

in rates of pay for equal work with the Equal Pay Act of 1963, and from 
age discrimination with the passage of the Age Discrimination in 
Employment Act of 1967; Congress extended protections to immigration 
status with the Immigration Reform and Control Act in 1986, and to the 
disabled with the passage of the Americans with Disabilities Act in 
1990. And the list goes on and on.
  Yet despite our best efforts, discrimination continues to persist in 
so many forms in this country, but most sadly in the rudimentary and 
malicious form of violence against individuals because of their 
membership in a particular class or group. Let me state, unequivocally, 
that this is America's fight. As much as we condemn all crime, crimes 
manifesting an animus for someone's race, religion or other 
characteristics can be more sinister than other crimes.
  A crime committed not just to harm an individual, but out of the 
motive of sending a message of malice to an entire community--
oftentimes a community that has historically been the subject of 
discrimination--is appropriately punished more harshly, or in a 
different manner, than other crimes.
  This is in keeping with the longstanding principle of criminal 
justice--as recognized by the Supreme Court in its unanimous 1993 
decision in Wisconsin versus Mitchell upholding Wisconsin's sentencing 
enhancement for crimes of animus--that the worse a criminal defendant's 
motive, the worse the crime.
  Moreover, crimes of animus are more likely to provoke retaliatory 
crimes; they inflict deep, lasting and distinct injuries--some of which 
never heal--on victims and their family members; they incite community 
unrest; and, ultimately, they are downright un-American.
  The melting pot of America is the most successful multiethnic, 
multiracial, and multifaith country in all recorded history. This is 
something to ponder as we consider the atrocities so routinely 
sanctioned in other countries--like Serbia or Rwanda--committed against 
persons entirely on the basis of their racial, ethnic or religious 
identity.
  I am resolute in my view that the Federal Government can play a 
valuable role in responding to crimes of malice and hate. One example 
here is my sponsorship of the Hate Crime Statistics Act of 1990, a law 
which instituted a data collection system to assess the extent of hate 
crime activity, and which now has thousands of voluntary law 
enforcement agency participants.
  Another, more recent example, is the passage in 1996 of the Church 
Arson Protection Act, which, among other things, criminalized the 
destruction of any church, synagogue, mosque or other place of 
religious worship because of the race, color, or ethnic characteristics 
of an individual associated with that property.
  To be sure, however, any Federal response--to be a meaningful one--
must abide by the constitutional limitations imposed on Congress, and 
be cognizant of the limitations on Congress's enumerated powers that 
are routinely enforced by the courts.
  This is more true today than it would have been even a mere decade 
ago, given the significant revival by the U.S. Supreme Court of the 
federalism doctrine in a string of decisions beginning in 1992. Those 
decisions must make us particularly vigilant in respecting the courts' 
restrictions on Congress's powers to legislate under section 5 of the 
14th amendment, and under the commerce clause.
  We therefore need to arrive at a Federal response to this matter that 
is not only as effective as possible, but that carefully navigates the 
rocky shoals of these court decisions. To that end, I have prepared an 
approach that I believe will be not only an effective one, but one that 
would avoid altogether the constitutional risks that attach to other 
possible Federal Responses that have been raised.
  Indeed, Deputy Attorney General Eric Holder testified before the 
Senate Judiciary Committee that States and localities should continue 
to be responsible for prosecuting the overwhelming majority of hate 
crimes, and that no legislation is worthwhile if it is invalidated as 
unconstitutional. This is worth repeating. Deputy Attorney General Eric 
Holder testified before the Senate Judiciary Committee that States and 
localities should continue to be responsible for prosecuting the 
overwhelming majority of hate crimes, and that no legislation is 
worthwhile if it is invalidated as unconstitutional.
  There are two principal components to my approach:
  First my amendment creates a meaningful partnership between the 
Federal Government and the States in combating hate crime by 
establishing within the Justice Department a grant program to assist 
State and local authorities in investigating and prosecuting hate 
crimes.
  Much of the cited justification given by those who advocate broad 
Federal jurisdiction over these hate-motivated crimes is a lack of 
adequate resources at the State and local level. Accordingly, before we 
take the step of making a Federal offense of every crime motivated by a 
hatred of someone's membership in a particular class or group, it is 
imperative that we equip States and localities with the resources 
necessary so that they can undertake these criminal investigations and 
prosecutions on their own.
  Second, my approach undertakes a comprehensive analysis of the raw 
data that has been collected pursuant to the 28 U.S.C. 534, the law 
requiring the collection of data on these crimes--a bill that I worked 
very hard to pass. The Federal Government has been collecting this data 
for years, but we have yet to analyze it. A comparison of the records 
of different jurisdictions--some with hate crimes, others without--to 
determine whether there is, in fact, a problem in certain States' 
prosecution of hate crimes also is provided for in my amendment.
  Before we make all hate crimes Federal offenses, I believe we should 
provide assistance to the States and analyze whether our assumptions 
about what the States are doing, or are not doing, are valid.
  It is no answer for the Senate to sit by silently while these crimes 
are being committed. The ugly, bigoted, and violent underside of some 
in our country that is reflected by the commission of hate crimes must 
be combated at all levels of government.
  For supporters of the Kennedy amendment, Federal leadership 
necessitates Federal control. I do not subscribe to this view, 
especially when it comes to this problem. Thus, I oppose Senator 
Kennedy's amendment. It proposes that to combat hate crimes Congress 
should enact a new tier of far-reaching Federal criminal legislation. 
That approach strays from the foundations of our constitutional 
structure--namely, the first principles of federalism that for more 
than two centuries have vested States with primary responsibility for 
prosecuting crimes committed within their boundaries.
  As important as this issue is, there is little evidence that a broad 
federalization of hate crimes is warranted. Indeed, it may be that 
national enforcement of hate crimes could decrease if States are told 
the Federal Government has assumed primary responsibility over hate 
crime enforcement.
  In addition, serious constitutional questions exist regarding the 
Kennedy hate crimes amendment. First, the Kennedy amendment, if 
adopted, would not be a valid exercise of congressional authority under 
section 5 of the 14th amendment. The Supreme Court has made clear in 
recent years that legislation enacted by Congress pursuant to section 5 
of the 14th amendment may only criminalize action taken by a State. 
Just last month, the Supreme Court in the recent United States v. 
Morrison case re-emphasized the State-action requirement that limits 
Congress' authority to enact legislation under the 14th amendment. The 
Court stated:

       Foremost among these limitations [on Congressional power] 
     is the time-honored principle that the Fourteenth Amendment, 
     by its very terms, prohibits only state action. The principle 
     has become firmly embedded in our constitutional law that the 
     action inhibited by the . . . Fourteenth Amendment is only 
     such action as may fairly be said to be that of the States. 
     That

[[Page 11215]]

     Amendment erects no shield against merely private conduct, 
     however, discriminatory or wrongful.

  The Kennedy amendment, however, seeks to prohibit private conduct--
crimes of violence committed by private individuals against minorities, 
religious practitioners, women, homosexuals, or the disabled. It 
therefore is very similar to the provision of the Violence Against 
Women Act--a bill I worked very hard to pass, called the Biden-Hatch 
Act--that sought to prohibit crimes of violence committed by private 
individuals against women. The Supreme Court in Morrison held that that 
provision of the Violence Against Women Act was not a valid exercise of 
congressional power under section 5 of the 14th amendment.
  To be sure, Congress can regulate purely private conduct under its 
commerce clause authority. But the Kennedy amendment likely would not 
be a valid exercise of congressional authority under the commerce 
clause either. The Supreme Court's 1995 decision in United States v. 
Lopez, and especially its recent Morrison decision, set forth the scope 
of Congress' commerce clause power. The Morrison opinion, in 
particular, changed the legal landscape regarding congressional power 
in relation to the States. Thus, legislation that was perfectly fine 
only 2 months ago now raises serious constitutional questions. The 
Kennedy amendment is not consistent with Lopez and Morrison.
  Both Lopez and Morrison require that the conduct regulated by 
Congress pursuant to its commerce clause power be ``some sort of 
economic endeavor.'' The Court has held that a statute that is ``a 
criminal statute that by its terms has nothing to do with `commerce' or 
any sort of economic enterprise, however broadly one might define those 
terms,'' does not meet constitutional muster. Here, the conduct sought 
to be regulated--hate crimes--is in no sense economic or commercial, 
but instead, by its very terms, is non-economic and criminal in nature, 
just like the conduct Congress sought to regulate in the Gun Free 
Schools Zones Act and the Violence Against Women Act--statutes that 
were held to be unconstitutional in Lopez and Morrison.
  In light of the Morrison decision, the Kennedy amendment makes an 
effort to require a direct link to interstate commerce before the 
Federal government can prosecute a hate crime based on sexual 
orientation, gender, or disability. It permits Federal hate crimes 
prosecution in four broad circumstances: No. 1, where the hate crime 
occurred in relation to interstate travel by the defendant or the 
victim; No. 2, where the defendant used a ``channel, facility or 
instrumentality'' of interstate commerce to commit the hate crime; No. 
3, where the defendant committed the hate crime by using a firearm or 
other weapon that has traveled in interstate commerce; and No. 4, where 
the hate crime interferes with commercial or economic activity of the 
victim. None of these circumstances provides an appropriate interstate 
nexus that would make the legislation constitutional.
  First, the interstate travel requirement of the Kennedy amendment's 
first circumstance where Federal prosecution would be appropriate does 
nothing to change the criminal, non-economic nature of the hate crime.
  The requirement of the second circumstance, that the defendant commit 
the hate crime by using a channel, facility or instrumentality of 
interstate commerce, may provide a interstate nexus, but it is unclear 
precisely what hate crimes that would encompass: hijacking a plane or 
blowing up a rail line in connection with a hate crime?
  The third circumstance's requirement that the defendant have used a 
weapon that traveled in interstate commerce would blow a hole in the 
commerce clause; Congress could then federalize essentially all State 
crimes where a firearm or other weapon is used; for example, most 
homicides.
  Finally, the fourth circumstance's requirement that the victim be 
working and that the hate crime interfere with his or her work is 
analogous to the reasoning the Court rejected in Morrison; that is, 
that violence against women harms our national economy. In the case of 
the Kennedy hate crimes amendment, the argument would be that hate 
crimes harm our national economy and therefore they have a nexus to 
interstate commerce. The Court in Morrison and in Lopez rejected those 
``costs of crime'' and ``national productivity'' arguments because 
``they would permit Congress to regulate not only all violent crime, 
but all activities that might lead to violent crime, regardless of how 
tenuously they relate to interstate commerce.'' Finally, the Kennedy 
amendment's catch-all provision, that the Federal government may 
prosecute a hate crime only if the crime ``otherwise affects interstate 
or foreign commerce,'' not only merely restates the constitutional 
test, it misstates the constitutional test. To be constitutional, the 
conduct must ``substantially affect'' interstate commerce.
  In addition to its constitutional problems, the Kennedy amendment has 
other deficiencies. The amendment provides that where the hate crime is 
a murder, the perpetrator ``shall be imprisoned for any term of years 
or for life.'' It does not authorize the death penalty for even the 
most heinous hate crimes. Accordingly, the horrific dragging death of 
James Byrd, Jr. on a back road in Jasper, TX, for example, under the 
Kennedy amendment, would provide only for a life sentence. In the Byrd 
case, however, State prosecutors tried the case as a capital case and 
obtained death sentences for the defendants. The Kennedy amendment, 
then, which purports to provide Federal leadership in the prosecution 
of hate crimes, would not even provide for the ultimate sentence 
permitted under duly enacted Texas law.
  When we asked the Justice Department what type of proof they had that 
the States are not doing the job, they promised to provide us evidence. 
I haven't seen it yet.
  That was quite a while ago. There may be, in the eyes of some, and in 
my eyes, a great reason to try to make Senator Kennedy's amendment 
constitutional, and that is what I tried to do in my amendment in order 
to do something about this if the States are not doing the job. But to 
this day, I have not had any information indicating that they are not 
doing the job. And in the Byrd case, they certainly have. In the 
Shepard case, they certainly have, just to mention a couple of them.
  I feel as deeply about hate crimes as Senator Kennedy or anybody else 
in this Chamber. But I want to abide by the Constitution. I recall 
Justice Scalia's admonition that there should be a presumption that 
Congress want to enact constitutional legislation, but because of some 
of the things we are doing, maybe that presumption is unjustified
  Supporters of the Kennedy amendment have claimed that it will create 
a partnership with State and local law enforcement. They have 
delicately described the legislation as being deferential to State and 
local authorities as to when the Justice Department will exercise 
jurisdiction over a particular hate crime. This is hogwash. The 
amendment does not defer to State or local authorities at all. It would 
leave the Justice Department free to insert itself in a local hate 
crime prosecution at the beginning, middle or end of the prosecution, 
even after the local prosecutor has obtained a guilty verdict. Even if 
the Justice Department does not formally insert itself into the 
particular case, it nevertheless will be empowered by the legislation 
to exert enormous pressure on local prosecutors regarding the manner in 
which they handle the case--from charging decisions the plea bargaining 
decisions to sentencing decisions. The Kennedy hate crimes amendment, 
pure and simple, would expand federal jurisdiction and federalize what 
currently are State crimes.
  By contrast, my amendment would address the issue of hate crimes in a 
responsible, constitutional way--by assisting States and local 
authorities in their efforts to investigate and prosecute hate crimes. 
It provides for a study of this issue to see if there really are States 
and local governments out there who, for whatever reason, are not 
investigating and prosecuting hate

[[Page 11216]]

crimes. And, it would provide resources to State and local governments 
that are trying to combat hate crimes but lack the resources to do so.
  In summary, we must lead--but lead responsibly--recognizing that we 
live in a country of governments of shared and divided 
responsibilities. In confronting a world of prejudice greater than any 
of us can now imagine, President Abraham Lincoln said to Congress in 
1862 that the ``dogmas of the quiet past'' were ``inadequate to the 
stormy present. The occasion is piled high with difficulty, and we must 
rise--with the occasion. As our case is new, so we must think anew, and 
act anew.''
  In that very spirit, I encourage this body to question the dogma that 
federal leadership must include federal control, and I encourage this 
body to act anew by supporting a proposal that seeks to stem hate-
motivated crime, while at the same time respecting the primacy states 
traditionally have enjoyed under our Constitution in prosecuting crimes 
committed within their boundaries.
  Ultimately, I believe the approach I have set forth is a principled 
way to accommodate our twin aims--our well-intentioned desire to 
investigate, prosecute, and, hopefully, end these vicious crimes; and 
our unequivocal duty to respect the constitutional boundaries governing 
any legislative action we take.
  My proposal should unite all of us on the one point about which we 
should most fervently agree--that the Senate must speak firmly and 
meaningfully in denouncing as wrong in all respects those actions we 
have increasingly come to know as hate crimes. Our continued progress 
in fighting to protect Americans' civil rights demands no less.
  Madam President, what the Hatch amendment does in comparison to the 
Kennedy amendment--and look, like I say, I feel as deeply about this as 
Senator Kennedy does, and I respect him for how he feels, and I also 
respect Senator Smith from Oregon and the distinguished Senator from 
Illinois. We are all trying to do the same thing, and that is make sure 
that hate crimes are prosecuted in our society today. I am very 
concerned about it, but I am also concerned about meeting the 
requisites of the Constitution as well. I believe my amendment would do 
that. I believe it would do it in a far more responsible way than the 
way the Kennedy amendment does.
  What the Hatch amendment does is provide for a comprehensive study so 
we can find out once and for all--we have the Hate Crimes Statistics 
Act giving us the statistics; it is something that I helped to do years 
ago along with Senator Kennedy. That study would help us to find out 
just what is happening in our society and whether or not the State and 
local governments are inadequate or incapable or unwilling to 
investigate and prosecute hate crimes.
  Two, we would provide for an intergovernmental assistance program. We 
provide technical, forensic, prosecutorial, or other assistance in the 
criminal investigation or the prosecution of crimes that, one, 
constitute a crime of violence; two, are a felony under relevant State 
law; and three, are motivated by animus against the victim by reason of 
the victim's membership in a particular class or group.
  My amendment would provide for Federal grants. We authorize the 
Attorney General, in cases where special circumstances exist, to make 
grants of up to $100,000 to States and local entities to assist in the 
investigation and prosecution of hate crimes. We require grant 
recipients to certify that the State or local entity lack the resources 
necessary to investigate or prosecute such crimes. And, we require that 
the Attorney General shall approve or disapprove grant applications 
within 10 days of receiving the application. We provide that the 
Attorney General shall report to Congress on the effectiveness of the 
program and conduct an audit to assure that the grants awarded are used 
properly.
  What we do not do is we do not create a new Federal crime. We do not 
give the Justice Department jurisdiction over crimes that are motivated 
because of a person's membership in a particular class or group; that 
is, the Hatch amendment does not Federalize crimes motivated because of 
a person's race, gender, religion, sexual orientation, or disability.
  To enact such a broad federalization of hate-motivated crimes would 
raise serious constitutional concerns. In addition, the Kennedy 
amendment would federalize all rapes and sexual assaults and, in so 
doing, would severely burden Federal law enforcement agencies, Federal 
prosecutors, and Federal courts. My amendment does not authorize 
Federal interference with State and local investigations and 
prosecutions. It is not our job to second-guess the investigation and 
prosecution and sentencing decisions of State and local authorities in 
cases involving hate crimes. As such, my amendment recognizes the 
significant efforts of State and local law enforcement in investigating 
and prosecuting all violent crimes, including hate crimes.
  In other words, my amendment would provide the analysis, study, and 
data to determine whether or not the States are failing or refusing to 
combat these horrible crimes. It provides the Government assistance to 
be able to help the State and local people do their job in these areas. 
Of course, we provide various other kinds of assistance that could be 
helpful in this matter.
  Madam President, I have taken enough time. Parliamentary inquiry. Is 
it time to send the amendment to the desk?
  The PRESIDING OFFICER. The Senator can send his amendment to the 
desk.
  Mr. HATCH. Madam President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Utah [Mr. Hatch] proposes an amendment 
     numbered 3474.

  Mr. HATCH. Madam President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the appropriate place, insert the following:

     SEC. __. COMPREHENSIVE STUDY AND SUPPORT FOR CRIMINAL 
                   INVESTIGATIONS AND PROSECUTIONS BY STATE AND 
                   LOCAL LAW ENFORCEMENT OFFICIALS.

       (a) Studies.--
       (1) Collection of data.--
       (A) Definition of relevant offense.--In this paragraph, the 
     term ``relevant offense'' means a crime described in 
     subsection (b)(1) of the first section of Public Law 101-275 
     (28 U.S.C. 534 note) and a crime that manifests evidence of 
     prejudice based on gender or age.
       (B) Collection from cross-section of states.--Not later 
     than 120 days after the date of enactment of this Act, the 
     Comptroller General of the United States, in consultation 
     with the National Governors' Association, shall select 10 
     jurisdictions with laws classifying certain types of offenses 
     as relevant offenses and 10 jurisdictions without such laws 
     from which to collect the data described in subparagraph (C) 
     over a 12-month period.
       (C) Data to be collected.--The data described in this 
     paragraph are--
       (i) the number of relevant offenses that are reported and 
     investigated in the jurisdiction;
       (ii) the percentage of relevant offenses that are 
     prosecuted and the percentage that result in conviction;
       (iii) the duration of the sentences imposed for crimes 
     classified as relevant offenses in the jurisdiction, compared 
     with the length of sentences imposed for similar crimes 
     committed in jurisdictions with no laws relating to relevant 
     offenses; and
       (iv) references to and descriptions of the laws under which 
     the offenders were punished.
       (D) Costs.--Participating jurisdictions shall be reimbursed 
     for the reasonable and necessary costs of compiling data 
     collected under this paragraph.
       (2) Study of relevant offense activity.--
       (A) In general.--Not later than 18 months after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall complete a study and submit to Congress a report 
     that analyzes the data collected under paragraph (1) and 
     under section 534 of title 28, United States Code, to 
     determine the extent of relevant offense activity throughout 
     the United States and the success of State and local 
     officials in combating that activity.
       (B) Identification of trends.--In the study conducted under 
     subparagraph (A), the Comptroller General of the United 
     States shall identify any trends in the commission of 
     relevant offenses specifically by--

[[Page 11217]]

       (i) geographic region;
       (ii) type of crime committed; and
       (iii) the number and percentage of relevant offenses that 
     are prosecuted and the number for which convictions are 
     obtained.
       (b) Assistance Other Than Financial Assistance.--At the 
     request of a law enforcement official of a State or a 
     political subdivision of a State, the Attorney General, 
     acting through the Director of the Federal Bureau of 
     Investigation and in cases where the Attorney General 
     determines special circumstances exist, may provide 
     technical, forensic, prosecutorial, or any other assistance 
     in the criminal investigation or prosecution of any crime 
     that--
       (1) constitutes a crime of violence (as defined in section 
     16 of title 18, United States Code);
       (2) constitutes a felony under the laws of the State; and
       (3) is motivated by animus against the victim by reason of 
     the membership of the victim in a particular class or group.
       (c) Grants.--
       (1) In general.--The Attorney General may, in cases where 
     the Attorney General determines special circumstances exist, 
     make grants to States and local subdivisions of States to 
     assist those entities in the investigation and prosecution of 
     crimes motivated by animus against the victim by reason of 
     the membership of the victim in a particular class or group.
       (2) Eligibility.--A State or political subdivision of a 
     State applying for assistance under this subsection shall--
       (A) describe the purposes for which the grant is needed; 
     and
       (B) certify that the State or political subdivision lacks 
     the resources necessary to investigate or prosecute a crime 
     motivated by animus against the victim by reason of the 
     membership of the victim in a particular class or group.
       (3) Deadline.--An application for a grant under this 
     subsection shall be approved or disapproved by the Attorney 
     General not later than 10 days after the application is 
     submitted.
       (4) Grant amount.--A grant under this subsection shall not 
     exceed $100,000 for any single case.
       (5) Report and audit.--Not later than December 31, 2001, 
     the Attorney General, in consultation with the National 
     Governors' Association, shall--
       (A) submit to Congress a report describing the applications 
     made for grants under this subsection, the award of such 
     grants, and the effectiveness of the grant funds awarded; and
       (B) conduct an audit of the grants awarded under this 
     subsection to ensure that such grants are used for the 
     purposes provided in this subsection.
       (6) Authorization of appropriations.--There is authorized 
     to be appropriated $5,000,000 for each of the fiscal years 
     2001 and 2002 to carry out this section.

  Mr. HATCH. Madam President, I respect my colleagues. I think we are 
all here to try to get at the same problem. I respect Senator Kennedy 
for his sincere effort to try to do what is right with regard to civil 
rights matters generally, and with regard to hate crimes in particular.
  I feel very much the same way. This is a great country. It is the 
greatest in the world. We ought to set an example. We ought to do the 
things that really need to be done. But I think we have to have the 
facts before we act. I don't think we should federalize crimes. I think 
this amendment is too broad.
  We are approaching this in two different ways. I hope we can somehow 
or other get together to solve this matter in a way that will make 
sense--that respects the principles of federalism, that respects the 
States in their efforts to combat hate crimes. Right now, we are not 
sure there are any States or local jurisdictions out there that are 
failing or refusing to investigate and prosecute hate crimes. You can 
cite the James Byrd and Matthew Shepard cases as two illustrations 
where State authorities have done a tremendous job in prosecuting 
horrific, hate-motivated crimes.
  I don't think anybody should have to suffer from hate crime activity. 
I think my amendment does not go as far as Senator Kennedy's, but I 
think it will certainly handle the problem in a way that respects 
federalism, respects the Constitution, and respects the nine decisions 
of the Supreme Court over the last 8 years that have reinforced the 
principle of federalism. In the end, I think my amendment will do what 
all of us here on the floor would like to see done--promote the 
investigation and prosecution of hate crimes--in a way that is 
constitutionally sound.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois is recognized.
  Mr. DURBIN. Madam President, let me say at the outset to my colleague 
and friend, the Senator from Utah, Mr. Hatch, that it was my honor to 
serve on the Judiciary Committee when he was chairman and I was a 
member of that committee. I hope someday to return. It is an 
interesting and exciting assignment. Occasionally we even agreed. They 
were rare moments, but there were those moments. I never, at any moment 
in time, lost any respect for the Senator from Utah and the values he 
espouses. I believe he is a person of good faith who will genuinely try 
to find a common ground. I sincerely hope he will.
  I listened to his explanation of his amendment on this issue, and I 
really think it comes down to a classic debate, which has been on the 
floor of this Senate many times in its history, when we were discussing 
whether or not African Americans were to become full citizens of the 
United States with all of their rights and responsibilities. There were 
those on the floor who said: It is not a Federal issue; let the States 
decide; the Federal Government should not get involved in this.
  There have been issues involving religious persecution--whether it is 
people of the Senator's faith, or my faith, or many others. There have 
been those who said this a State-and-local matter to decide, it should 
not be a Federal issue.
  The same thing was true when it came to elevating women in America 
from their status in the Constitution--which we revere, but a 
Constitution which, frankly, did not give the women the right to vote 
when it was initially drafted. When the debate came on about the rights 
of women, it was usually couched in terms of federalism: Should the 
Federal Government get involved in this; or, this is a State issue.
  We can remember the hot debates over the equal rights amendment and 
all that entailed. The same thing has been true throughout history, the 
way I read it--whether we are talking about blacks, women, or people of 
a certain faith, or whether we are talking about people who have 
certain disabilities. We have always come down to this debate: Is this 
issue any business of the Federal Government?
  I respectfully disagree with my colleague and friend, the Senator 
from Utah. I think when it comes to hate crimes, this is an issue for 
the Nation to solve. To leave it to individual States to make the 
decisions is in fact to subject some Americans to less protection than 
others when it comes to being victims of hate crimes.
  Mr. HATCH. Will the Senator yield?
  Mr. DURBIN. I am happy to yield.
  Mr. HATCH. Madam President, I haven't said this isn't an issue for 
the Federal Government. I think it may be. But the point is, we ought 
to get the facts, and we ought to find out if State and local 
authorities are failing or refusing to investigate and prosecute hate 
crimes. We ought first to find out whether State and local authorities 
are, in fact, denying individuals the equal protection of the laws. So 
far, the Justice Department has produced precious little evidence to 
the Judiciary Committee that would indicate that State and local 
authorities are abdicating their responsibility to combat hate-
motivated crimes. And we asked for the Justice Department to get us 
this information, if there is any, a long time ago.
  Yet we have had actually nine decisions by the Supreme Court over the 
last 8 years reinforcing the principle of federalism--the principle 
that State governments and the federal government have distinct areas 
of responsibility. It is true that these Court decisions are, in many 
instances, 5-4 decisions, which shows again how important the Supreme 
Court really is in all of our lives.
  I am a proud cosponsor of the Violence Against Women Act. I remember 
the passion when we passed it. There were real concerns whether it 
would be upheld by the Supreme Court. Part of it was not upheld by the 
Supreme Court, the part that I was concerned about. But up to that 
point, I thought there was a chance.
  But with the Morrison decision, I don't think there is a chance that 
the Kennedy amendment, as it currently is written, will survive a 
constitutional

[[Page 11218]]

challenge. And I think that we ought to at least make an attempt to 
abide by the Constitution, if nothing else. This is not a matter of 
States rights. I think there may be a role for the Federal Government. 
But right now, let's at least get the facts. In the process, we can 
lend assistance, both financial and otherwise, to the States to help 
them with these serious problems.
  I am very grateful for my distinguished colleague and his respectful 
remarks. They mean a lot to me because I happen to believe he is one of 
the most articulate Members of this body. I believe he is very sincere. 
It is true that we agree on much more than just a few things.
  But I just want to make it clear that my amendment offers a different 
approach--an approach that I think is constitutional, that will get us 
there without going through another 2 or 3 years and then having it 
overruled as unconstitutional and having to start all over again. I 
know that the amendment I have offered is constitutional. I know we can 
implement it from day one, without any fear that it will be struck down 
by the Supreme Court as violative of the Constitution. And I know it 
will make an impact and really do something about hate crimes, rather 
than just make political points on the floor.
  I thank my colleague.
  Mr. DURBIN. I thank the Senator from Utah.
  Let me say first how proud I am to cosponsor the legislation that has 
been introduced by the Senator from Massachusetts, Mr. Kennedy, and the 
Senator from the State of Oregon, Mr. Smith. It is bipartisan 
legislation. Senator Carl Levin of Michigan is also one of the lead 
sponsors of it as well.
  The difference, as I understand it, between the proposal of the 
Senator from Utah and the proposal of Senators Kennedy and Smith really 
comes down to one basic point. As I understand it, the Senator from 
Utah is looking to, first, provide grants to States and localities so 
they can prosecute these crimes when they are found deserving; and, 
second, to study the issue to determine whether or not there is a need 
for Federal legislation.
  As I understand the amendment before us by Senators Kennedy and 
Smith, it basically creates a Federal cause of action, expanding on 
what we now have in current law in terms of hate crimes, and expanding 
the categories of activities that would be covered by this hate crime 
legislation.
  I say to the Senator from Utah, if he is on the floor, I believe the 
Senator from Massachusetts will provide ample evidence of the need for 
this legislation. I believe the statistics are not only there but they 
are overwhelming in terms of the reason he is introducing this 
amendment and why we need this national cause of action.
  Second, during the course of my remarks I would like to address 
squarely the issue raised by the Senator from Utah, an issue that has 
been raised by the Supreme Court. It is, frankly, whether or not we 
have the authority to create this cause of action.
  The Senator uses recent Supreme Court decisions relating to the 
commerce clause. When it came to the Violence Against Women Act, it is 
my understanding the Supreme Court ruled that they could not find the 
necessary connection between the Violence Against Women Act and the 
commerce clause to justify Federal activity in this area.
  If the Senator from Utah will follow this debate, I think he will 
find that the Senator from Massachusetts and the Senator from Oregon 
are taking a different approach. They are using the 13th amendment as a 
basis for this legislation. They also establish an option of the 
commerce clause. But they are grounding it on a 13th amendment 
principle of law and Federal jurisdiction, which our Department of 
Justice agrees would overcome the arguments that have been raised in 
the Supreme Court under its current composition of overextension of the 
commerce clause.
  I hope as the Senator from Utah reflects on this debate, the 
information provided by the Senator from Massachusetts, and the new 
constitutional approach to this, that he may reconsider offering this 
amendment. As good as it is to study the problem further and to provide 
additional funds, it doesn't address the bottom line; that is, to make 
sure there will at least be the option of a Federal cause of action in 
every jurisdiction in America.
  I would be happy to yield to the Senator from Utah for a question.
  Mr. HATCH. I thank my colleague.
  If I could comment, I believe the distinguished Senator from 
Massachusetts can show that there are hate crimes in our society. I 
think that he will have a difficult time, however, showing that that 
State and local prosecutors are unwilling to investigate and prosecute 
hate-motivated crimes. That is why I asked the Justice Department to 
provide to us data and information on the specific instances where 
State and local authorities failed or refused to investigate and 
prosecute hate crimes.
  Years ago, under the leadership of Senator Kennedy and myself, the 
Senate passed the Hate Crime Statistics Act to collect data on the 
incidence of hate crimes. We have statistics. I am sure there are hate 
crimes, but I am not sure there is any evidence to show that these hate 
crimes are not being prosecuted in the respective States. I'm just not 
sure. That is one reason I think we should cautiously approach this, 
rather than approach it in a way that I believe would be 
unconstitutional.
  I thank my colleague.
  Mr. DURBIN. If the Senator will look closely at the Kennedy-Smith 
amendment, he will find before the Federal cause of action can be 
initiated--as I understand it, but I defer to either of the major 
sponsors--before there can be a Federal indictment under this proposed 
hate crime, the Department of Justice must certify two things: First, 
reasonable cause to believe that the crime was motivated by bias; 
second, addressing the very issue raised by the Senator from Utah, the 
U.S. attorney has to certify that he has consulted with State or local 
law enforcement officials and determined one of the following 
situations is present, and he lists four situations.
  First, the State does not have jurisdiction or does not intend to 
exercise jurisdiction; second, the State has requested that the Justice 
Department assume jurisdiction; third, the State doesn't object to the 
Justice Department assuming jurisdiction; or fourth, the State has 
completed prosecution and the Justice Department wants to initiate a 
subsequent prosecution.
  When the Senator from Utah suggests that the Kennedy-Smith amendment 
will necessitate Federal control, I think, frankly, that when you look 
at the certification required by the Federal Government before the 
action can be undertaken, we clearly have a situation where the State 
has either no jurisdiction, or has invited the Justice Department to 
initiate the prosecution, or they have completed their prosecution.
  In this amendment, the first option is clearly being given to the 
States. If they have the authority and exercise it, clearly they will 
not be preempted by this Federal cause of action, as I understand it. 
If that is the case, I think it addresses the major concern raised by 
the Senator from Utah.
  Why do we need this new law? We have a 30-year-old Federal statute 
which says when it comes to hate crimes, we have to find a specific 
federally protected activity. Congress, in the past, tried to 
``prophesize,'' if you will, the types of activities that might be 
involved in a hate crime. We came up with six activities: Enrolling in 
or attending a public school or private college; No. 2, participating 
in a service or action provided by State or local government; No. 3, 
applying for employment or actually working; No. 4, service on a jury 
in State or Federal court; No. 5, traveling in interstate commerce or 
using a facility of interstate commerce; and No. 6, enjoying the goods 
and services of certain places of public accommodation.
  We have said over the years if this activity is involved and there is 
evidence of a hate crime, then the Federal prosecutors can step in.
  I believe--and I don't want to put words in their mouths --Senators 
Kennedy and Smith have said we have

[[Page 11219]]

found too many cases arising which do not fall within the four corners 
of these six federally protected activities. Therefore, they are 
offering an amendment which gives Federal prosecutors more opportunity 
to consider the possibility of prosecution.
  I am wearing a button today that says ``Remember Matthew.'' Matthew, 
of course, is Matthew Shepard. Two years ago, Matthew Shepard, an 
openly gay college student in Wyoming, was brutally beaten. He was 
burned, he was tied to a wooden fence in a remote area, and left to die 
in freezing temperatures from exposure.
  Despite this heinous act which we all read about, no Federal 
prosecution was even possible under the Shepard case. The existing 
State crime law and federally protected activities that are defined in 
it did not include what happened to Matthew Shepard. The current 
Federal statute does not include hate crimes based on a victim's sexual 
orientation, gender, or disability. The Kennedy-Smith amendment, which 
I am cosponsoring, corrects that very grievous omission.
  I think the Senator from Utah would concede that when we are talking 
about hate crimes, we should certainly include crimes based on sexual 
orientation, gender, or disability. The Matthew Shepard case would not 
have been included, as I understand it. That is why the Kennedy-Smith 
amendment is so important.
  Mr. HATCH. If the Senator will yield, I am having a little bit of 
difficulty, so I ask how the 13th amendment applies. As I read the 13th 
amendment, it says, in section 1:

       Neither slavery nor involuntary servitude, except as a 
     punishment for crime whereof the party shall have been duly 
     convicted, shall exist within the United States, or any place 
     subject to their jurisdiction.

  In section 2:

       Congress shall have power to enforce this article by 
     appropriate legislation.

  How does the Kennedy amendment qualify under the 13th amendment? As I 
made clear, it doesn't qualify under the 14th amendment because of the 
arguments I made, pure Supreme Court arguments, that are recent in 
decision.
  I missed something on the 13th amendment because that is the 
amendment that abolished slavery.
  Mr. DURBIN. Let me reply.
  Mr. HATCH. Please tell me. This is a sincere question.
  Mr. DURBIN. I am happy to defer to the sponsors of the amendment to 
respond and yield time if they desire.
  The information I have been given is this: Under the 13th amendment, 
Congress may prohibit hate crimes based on actual or perceived race, 
color, religion, or national origin, pursuant to that amendment. Under 
the 13th amendment, Congress has the authority not only to prevent the 
``actual imposition of slavery or involuntary servitude'' but to ensure 
that none of the ``badges and incidents'' of slavery or involuntary 
servitude exist in the United States.
  What the Justice Department and what the sponsors of this amendment 
have concluded is that the 13th amendment gives the appropriate Federal 
jurisdiction and nexus to pursue this matter under the question of 
whether or not this is a badge or incident of that form of 
discrimination.
  I don't want to go any further. I am sure the Senator from 
Massachusetts will explain this in more detail, but this 13th amendment 
nexus, I think, overcomes the concern of the Senator from Utah about 
the interpretations recently handed down.
  Mr. HATCH. I don't mean to keep interrupting, but as I read that, I 
can see if what the Senator is after is a hate crime of keeping 
somebody involuntarily in servitude, but I don't know of many of those 
today. I am sure that may happen. We are talking about all kinds of 
hate crimes that certainly don't fit within the 13th amendment. If that 
is the way we are going to get at it, I think that is a very poor way 
of getting at a resolution for a hate crime problem.
  Reading again, section 1:

       Neither slavery--

  And I don't know of many instances of slavery in this day and age; in 
fact, I don't know of any, but there may be some. But we can get them 
constitutionally, right now, if they do that --

     nor involuntary servitude, except as a punishment for crime 
     whereof the party shall have been duly convicted, shall exist 
     within the United States or any place subject to their 
     jurisdiction.

  Section 2:

       Congress shall have power to enforce this article by 
     appropriate legislation.

  If there is such a thing, if there is such a hate crime today as 
slavery, or involuntary servitude not required because of a due 
conviction, then we have the absolute power today, federally, to go in 
and prosecute under the Constitution itself under the 13th amendment.
  Maybe I am missing something, or maybe I just haven't thought it 
through or I am too tired. I can't see how the 13th amendment provides 
a nexus whereby the Kennedy amendment becomes constitutional. It 
doesn't. In some ways, I wish the Kennedy amendment were 
constitutional. I worked hard back in those days to pass the Violence 
Against Women Act. I am working hard right now to pass it again in a 
form that is constitutional. We thought it was constitutional. I have 
to say, I had my qualms about it and my qualms proved to be accurate.
  Today, we know what the Court has said. It has been the principle 
debate in this country since the beginning. The Court has said that 
Congress' power in relation to the States is limited. They are 5-4 
decisions that are valid and are constitutional. For us to fly in the 
face of those just because we want to federalize hate crime activity, 
is, I think, constitutionally improper. That is what worries me.
  These Supreme Court cases outlining the limits of congressional power 
under the principle of federalism are quite recent decisions. They are 
not old-time decisions that have been disqualified or overly 
criticized. They are decisions that basically advise us of the law 
right now.
  I just wanted to make that point because I am concerned: How do you 
make the Kennedy amendment constitutional? I don't think you can under 
current law.
  Now let's face it. If another Court comes in and reverses the nine 
major federalism decisions that the Supreme Court has handed down in 
the last few years, and ignores the principle of stare decisis and 
ignores the principle of federalism, I suppose that at that point you 
could enact the Kennedy legislation with impunity. But right now, I 
don't see how you do it if we, as Members of Congress, are trying to 
exert our influence and our obligation and our oath to uphold the 
Constitution of the United States.
  I am sorry to interrupt.
  Mr. DURBIN. I am happy to yield to the Senator from Utah. Let me say 
parenthetically I think there is more value to this dialog and exchange 
than many monologs we hear on the Senate floor.
  I thank the Senator for his interest and staying to question me, and 
I am sure we will question him during the course of this debate.
  I know there are other Members seeking recognition at this point. I 
will try to wrap up.
  I do not want to in any way misrepresent the amendment that is been 
offered by Senators Kennedy and Smith. I think the statements I have 
made to date are accurate. The Local Law Enforcement Enhancement Act 
that is before us, the Kennedy-Smith amendment, was drafted carefully 
and modified to assure its constitutionality under current Supreme 
Court precedents, as has been referred to by the Senator from Utah. It 
has been reexamined in light of the Morrison decision. Moreover, the 
Department of Justice and constitutional scholars have examined this 
bill and have confidently determined that the Local Law Enforcement Act 
will stand up to constitutional scrutiny.
  Congress may prohibit hate based on race, color, religion, or 
national origin pursuant to its power to enforce the 13th amendment to 
the U.S. Constitution because under the 13th amendment Congress has the 
authority not only to prevent the actual imposition of slavery or 
involuntary servitude but to ensure that none of the ``badges and 
incidents'' of slavery or involuntary

[[Page 11220]]

servitude exists in the United States, which goes to the very point of 
the Senator from Utah. He reads the 13th amendment and says this goes 
far beyond prohibiting slavery. But I might say the Supreme Court, in 
interpreting congressional authority under the 13th amendment, said it 
could reach beyond the simple question of prohibiting slavery or 
involuntary servitude. By using the language ``badges and incidents,'' 
it opened up the opportunity for Congress to consider this authority 
and for this amendment to be introduced.
  None of the Supreme Court's recent Federalism decisions casts doubt 
on Congress' powers under the 13th amendment to eliminate the badges 
and incidents of slavery. United States v. Morrison involved 
legislation that was found to exceed Congress' powers under the 14th 
amendment. The Court in Morrison, for example, found Congress lacked 
the power to enact the civil remedy of the Violence Against Women Act 
pursuant to the 14th amendment because the amendment's equal protection 
guarantee extends only to ``state action.'' The Senator from Utah, who 
was one of the proponents of this and deserves high praise for it, 
makes this point in his opening statement on his amendment.
  Since the Violence Against Women Act was interpreted by this Court to 
go beyond State action--that is, Government action--the Court struck it 
down. We are trying our best to reinstate it, but that is the standard.
  The 13th amendment, however, not the 14th amendment, which they used 
to strike down the Violence Against Women Act, plainly reaches private 
conduct as well as Government conduct, and Congress thus is authorized 
to prohibit private action that constitutes a badge, incident, or relic 
of slavery.
  Moreover, this hate crimes amendment would not only apply except 
where there is an explicit and discrete connection between the 
prescribed conduct and interstate or foreign commerce, a connection 
that the Government would be required to allege and prove in each case. 
This is consistent with Morrison. Like the prohibition of gun 
possession in the statute at issue in the Lopez case, the Violence 
Against Women Act civil remedy required no proof of connection between 
the specific conduct prohibited and interstate commerce. This amendment 
requires that a nexus exist between the prohibited conduct and 
interstate or foreign commerce.
  Madam President, there are many who believe that a hate crime 
prevention statute is unnecessary. I don't put the Senator from Utah in 
that category. He has made it clear he is opposed to hate crimes, and I 
trust his word. I believe he is genuine when he says it. The question 
is, Who will have the power to enforce it? If the Senate neither has 
the authority nor wants the authority, if the State does not want to 
prosecute a hate crime, and yet it has been committed and truly there 
is a victim, the Kennedy-Smith amendment says we will create the 
opportunity for a Federal cause of action.
  We are not forcing the Federal cause of action, but only in the 
instance where the State either doesn't have authority or has not 
exercised the authority or in fact defers to the Federal Government or 
in fact has completed its prosecution and left open the opportunity for 
such a Federal cause of action.
  I wish we did not even have to debate hate crimes legislation. Alan 
Bruce of my staff has been a person I have turned to many times on 
issues of this magnitude on this subject. He was the one who gave me 
this button to wear in the Chamber and can remember Matthew Shepard. It 
is a grim reminder that there are still people in America who will not 
accept tolerance as the norm, and if we think it is rare, we only have 
to go to our new technology of the Internet to find the hate being 
spewed on so many web sites, efforts by small-minded people in this 
democratic society to turn our anger against our brothers and sisters 
who live in America, who happen to be a different color, of a different 
sexual orientation, a different religion, a different gender. This 
amendment really tries to address it and say that America as a nation 
will make it clear that we will not tolerate this sort of hateful, 
spiteful conduct when it results in violence against one of our 
brothers and sisters.
  How many times have we read these harrowing details: Jasper, TX, with 
James Byrd, Jr., 2 years ago dragged to his death when he was hooked by 
a chain to the back of a pickup truck. They literally found this 
African-American's body in pieces.
  The brutal hate-motivated deaths of James Byrd and Mathew Shepard 
received national attention. Since their deaths, our Nation has thought 
long and hard about whether this is an America we can tolerate. I think 
it is not.
  Madam President, I bring your attention to two crimes in my own State 
of Illinois just in the last year.
  April 5, 1999: Naoki Kamijima, 48 years old, a Japanese American 
shopowner was shot to death in Crystal Lake, IL, right outside of 
Chicago. The gunman was allegedly searching stores for employees of 
certain ethnic groups before finding and shooting Mr. Kamijima. 
Reportedly, the gunman said to employees he left behind after 
questioning them on their ethnic background, ``This is your lucky 
day.'' Hours later, Mr. Kamijima was shot dead, leaving a wife and two 
teenage children. His crime? He was an Asian-American. A Korean 
neighbor of the gunman said he used to chase her car when she drove 
through the neighborhood.
  On the Fourth of July, 1999, a time of celebration across America, a 
shadow was cast over Illinois. Benjamin Smith, an individual associated 
with a racist, antisemitic organization, killed an African-American 
man, Ricky Birdsong, the former basketball coach at Northwestern 
University. Then he went on, this same Benjamin Smith, to wound six 
Orthodox Jews in Chicago. I met the father of one of the young boys 
whose son was terrorized that night. His life will never be the same. 
His only crime in the eyes of Benjamin Smith? He did not practice the 
right religion. Then Benjamin Smith went on to kill a Korean student in 
Bloomington, IN.
  Sadly, these incidents are only the tip of the iceberg. There are so 
many other incidents of hate violence in my State and around the 
Nation. Since 1991, 70,000 hate crime offenses have been reported in 
our country. Launching a comprehensive Government analysis of currently 
available hate crime data would likely be time consuming and not bring 
us any closer to solving the real problem of hate violence in this 
Nation.
  Mr. President, the Local Law Enforcement Act offers a sensible 
approach to help deter this kind of discriminatory violence. This 
legislation has bipartisan support: Senator Gordon Smith, Senator Ted 
Kennedy, Senator Carl Levin, and so many others. It is supported by law 
enforcement, civil rights and civic groups, and religious 
organizations. I am proud to cosponsor this legislation. I urge my 
colleagues to support its passage.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Stevens). The Senator from Louisiana.
  Mr. BREAUX. Mr. President, I start by commending the distinguished 
chairman of the Judiciary Committee for his important observations 
about this legislation; also, to commend the principal sponsors of this 
legislation, Senator Kennedy and Senator Smith, for bringing this 
matter to the attention of our colleagues and seeking our support for 
this legislation.
  I do not think this is that complicated an issue, quite frankly. I do 
not think the issues are so complex that they call for an extended 
psychological discourse on the makeup of the American population. Quite 
frankly, the issues are fairly simple. America stands for the 
constitutional principle that all men and women are created equal and 
that we are all guaranteed the rights of life, liberty, and the pursuit 
of happiness regardless of who we are or where we are from or what we 
think, what our political views are, or what is the essence of our 
makeup as a human being. That is a right that is guaranteed to all 
Americans in the Constitution. I think no one really questions that.

[[Page 11221]]

  That principle does not mean everyone in America has to agree with 
everybody else. In fact, I think that, far from it, we are a nation 
that certainly encourages diversity of thinking, differences among 
competing ideas, and differences among the respected beliefs of all the 
people who make up our great Nation.
  That constitutional principle does not even mean that we have to like 
each other. Certainly there are instances when Catholics do not like 
Protestants, and Protestants do not like Jews, and Jews do not like 
Muslims, and Cajun Americans may have differences with British 
Americans. For that reason alone they do not particularly care for each 
other; they do not like each other; they do not want to associate with 
each other. That also is their constitutional right, I suggest, in this 
country to take that opinion of people with whom they disagree. But our 
constitutional principles do, in fact, guarantee clearly that we as 
Americans cannot do violence or do harm to other people in our country, 
especially when that violence or harm is based solely on whom these 
other people might be.
  To do violence solely because of someone's religious beliefs, their 
personal ideas, or concepts about what is right and what is wrong, or 
because of their religion or where they are from is especially 
repugnant to all of us as Americans. You do not have to like everybody, 
but you certainly cannot harm anybody, and especially you cannot harm 
anybody solely for whom they happen to be or who they are.
  This legislation then is aimed at adding crimes that are motivated by 
a bias against people solely because of their gender or solely because 
of their sexual preference or perhaps because of some disability they 
might have. I, therefore, think this legislation which the authors 
bring to the Senate is appropriate and should be supported. It will 
send a clear message throughout this country that these types of 
activities in this country will not be tolerated.
  Again, in America, our right to not embrace or befriend someone with 
whom we do not want to be associated, for whatever reason, is 
guaranteed. But what is also guaranteed is their right under the 
Constitution of the United States to be protected against violence and 
harm that others might do unto them solely because of who they are.
  As Americans, we certainly should be proud of our multicultural and 
multiethnic heritage. We are a diverse nation and when we look at other 
nations that are having problems because of their heritage or their 
diversity, we can be proud in this country that we, in fact, are a 
different nation than many others. Therefore, this legislation sends a 
strong and clear message that domestic terrorism and violence against 
people in our country based merely on who they are or what they believe 
is something that deserves national protection, and Federal legislation 
is, in fact, important.
  A hate crime against any American is a crime against all Americans, 
and this legislation saying that is a Federal right upon which we will 
insist is appropriate and proper and deserves our support.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I rise this afternoon to speak for this 
legislation and commend Senator Kennedy for his sponsorship, along with 
my colleagues, of this legislation. Senator Kennedy has long been an 
advocate for a society in which individuals reach out not with hate but 
with fellowship. I am pleased to see other supporters, like Senator 
Smith, who are also in the vanguard of this great effort.
  This afternoon we are here because of the murders of James Byrd and 
Matthew Shepard and others--because these acts of violence tear at the 
very fabric of our society.
  Unfortunately, over the past 2 years, we have seen far too many cases 
of these types of crimes of violence, motivated strictly by prejudice 
and hatred of people, not because of their character but because of 
some perception of their failings in the eyes of others.
  In my own State of Rhode Island, in May 1998 a group of seven to ten 
men stomped and battered a Cranston bartender and an acquaintance as 
they were coming out of a Providence night club, while laughing and 
screaming anti-gay epithets. The waiter suffered fractured bones in his 
jaw, head and collarbone, cracked ribs, and a puncture wound to his 
chest caused by a broken bottle. The acquaintance suffered a fractured 
eye socket and bruises.
  According to Providence, Rhode Island city officials, the number of 
hate crimes reported in Providence has grown in recent years. In 1998, 
25 such crimes were reported, and, last year, 32 were reported.
  In February 1999, in an incident which took place in Pawtucket, Rhode 
Island, two men were walking home with a female friend from a church 
function and were assaulted by a third man. While yelling obscenities 
and anti-homosexual slurs, the third man hit one of the men over the 
head with a full wine bottle, and then jumped on top of him and punched 
him repeatedly in the face and head. He then threw him up against a 
brick wall and continued to hit him while yelling anti-gay epithets.
  In California, three men pled guilty to racial terrorism for burning 
a swastika outside a Latino couple's residence.
  In Florida, a Puerto Rican man was allegedly beaten by three white 
men who yelled racial slurs.
  In Ohio, a 23-year-old Hispanic male was gunned down by three 
assailants. Police reported it as a racially motivated incident. The 
list goes on and on.
  This amendment would simply extend the current definition of Federal 
hate crimes to include crimes committed on the basis of someone's 
gender, sexual orientation, or disability. It would allow the Federal 
Government to prosecute an alleged perpetrator who commits a violent 
crime against someone just because that person is gay, blind, or 
female.
  This amendment basically brings our civil rights statutes in line 
with the most recent definition of hate crimes promulgated by this 
Congress.
  This amendment also eliminates the restrictions that have prevented 
Federal involvement in many cases in which individuals were killed or 
injured because of bias or prejudice.
  It also supports State and local efforts to prosecute hate crimes by 
providing Federal aid to local law enforcement officials. In 
particular, it authorizes the Justice Department to issue grants of up 
to $100,000 to State, local, and Indian law enforcement agencies that 
have incurred extraordinary expenses associated with investigating and 
prosecuting hate crimes.
  This amendment does not federalize all violent hate crimes. It 
provides for Federal involvement only in the most serious incidents of 
bodily injury or death, and only after consultation with State and 
local officials, a policy that is explicitly reflected in a memorandum 
of understanding entered into by the Department of Justice with the 
National Association of District Attorneys last July.
  Finally, the Department of Justice has reviewed this amendment and 
believes it does meet the constitutional standards recently articulated 
in Supreme Court cases. For crimes based on gender, sexual orientation, 
disability, religion, and national origin, the amendment has been 
carefully drafted to apply only to violent conduct in cases that have 
an ``explicit connection with or effect on interstate commerce.''
  This amendment has attracted broad bipartisan support from 42 
Senators, 191 Members of the House of Representatives, 22 State 
attorneys general, and more than 175 law enforcement, civil rights, and 
religious organizations. This demonstrates the huge support (for 
strengthening Federal hate crimes legislation, support) which cuts 
across party lines and which reaffirms a fundamental belief and tenet 
of our country: That people should be able to be individuals, to be 
themselves without fear of being attacked for their individuality, for 
their personhood, for their very essence.
  These hate crimes are very real offenses. They combine uncontrolled 
bigotry with vicious acts. These crimes

[[Page 11222]]

not only inflict personal wounds, they wreak havoc on the emotional 
well-being of people throughout this country, because they attack a 
person's identity as well as his or her body. Although bodies heal, the 
scars left by these attacks on the minds of the victims are deep and 
often endure for many years.
  There is no better way for us to reaffirm our commitment to the most 
basic of American values: the dignity of the individual and the right 
of that individual to be himself or herself. We can do that by voting 
in favor of this amendment. I believe it is our duty. I am pleased to 
join this great debate and lend my support to this amendment. I yield 
the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. JEFFORDS. Mr. President, I rise today to support the Hate Crimes 
Prevention Act. I applaud Senators Kennedy and Smith of Oregon, and 
others for providing us an amendment on the Department of Defense 
authorization bill which will be of great assistance in the prosecution 
of hate crimes.
  This legislation will provide the Federal Government a needed tool to 
combat the destructive impact of hate crimes on our society. The 
amendment also recognizes that hate crimes are not just limited to 
crimes committed because of race, color, religion, or national origin, 
but are also directed at individuals because of their gender, sexual 
orientation, or disability.
  Any crime hurts our society, but crimes motivated by hate are 
especially harmful. Hate crimes not only target individuals but are 
also directed to send a message to the community as a whole. The 
adoption of this amendment would help our State and local authorities 
in pursuing and prosecuting the perpetrators of hate crimes.
  Many States, including the State of Vermont, have already passed 
strong hate crimes laws. I applaud them for their endeavor. An 
important principle of this amendment is that it allows for Federal 
prosecution of hate crimes without impeding the rights of States to 
prosecute these crimes.
  Under this amendment, Federal prosecutions would still be subject to 
the current provision of law that requires the Attorney General or 
another senior official of the Justice Department to certify that a 
Federal prosecution is necessary to secure substantial justice. Such a 
requirement under current law has ensured that the States are the 
primary adjudicators of the perpetrators of hate crimes, not the 
Federal Government. Additionally, Federal authorities will consult with 
the State and local law enforcement officials before initiating an 
investigation or prosecution. Both of these are important provisions to 
ensure that we are not infringing on the rights of States to prosecute 
these crimes.
  Senate adoption of this amendment will be an important step forward 
in ensuring that the perpetrators of these harmful crimes are brought 
to justice. I urge my colleagues to take a strong stand against hate 
crimes by supporting this important legislation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Has the Senator from Vermont completed his statement?
  Mr. JEFFORDS. Yes. I have yielded the floor.
  Mr. REID. Mr. President, in Las Vegas a gay man was shot to death 
because he was gay. In Reno, someone went to a city park with the 
specific purpose to find someone who was gay, found him, and killed 
him. These types of incidents have happened not once, not twice, but 
numerous times in Nevada, and thousands of times around this country.
  I only mention two of the occasions where someone's son, someone's 
brother was killed. They were human beings. These people were killed 
not because of wanting to steal from them, not because of wanting to do 
anything other than to kill them because of who they were. They were 
killed because someone hated them.
  Mr. President, I rise today in support of the Local Law Enforcement 
Act of 2000. I am an original cosponsor of the freestanding legislation 
authored by the senior Senator from Massachusetts, Mr. Kennedy. I 
commend Senator Kennedy for his tireless efforts to ensure that the 
Senate consider and pass this important and much-needed measure. This 
is important legislation, and I am very happy that we are now at a 
point where this legislation can be debated in the Senate.
  Hate crimes legislation is needed because, according to the FBI, 
nearly 60,000 hate crimes incidents have been reported in the last 8 
years. In 1998, the latest year for which FBI figures are available, 
nearly 8,000 hate crimes incidents were reported. But these figures are 
more frightening when we ponder how many hate crimes are not reported 
to law enforcement authorities.
  Unfortunately, the Federal statutes currently used to prosecute hate-
based violence need to be updated. That is what Senator Kennedy is 
doing. These Federal laws, many of which were passed during the 
Reconstruction era as a response to widespread violence against former 
slaves, do not cover incidents of hate-based crimes based upon a 
person's sexual orientation, gender, or disability. In 1998, again, the 
last year for which statistics are available, there were 1,260 hate 
crimes incidents based on sexual orientation reported to law 
enforcement. Many more took place. These are only the ones that were 
reported. This figure, which represents about 16 percent of all hate 
crimes reported in 1998, demonstrates that current law must be changed 
to include sexual orientation under the definition of hate crimes.
  I have listened to the debate on the floor today. I think we all have 
some remembrance of the terrible series of events which occurred in 
Jasper, TX, a couple years ago. On June 7, the country paused to 
remember the second anniversary of James Byrd, Jr.'s horrific death, 
when he was dragged along a rural back road in Texas. This man was just 
walking along the road when certain people, because of the color of his 
skin, grabbed him, beat him, and if that wasn't enough, they tied him, 
while he was still alive, to the back of their pickup and dragged him 
until he died.
  Due to the race-based nature of the Byrd murder, Federal authorities 
were able to offer significant assistance, including Federal dollars, 
to aid in the investigation and prosecution of that case to ensure that 
justice was served.
  Unfortunately, the same cannot be said about another case that has 
already been talked about here on the floor today; the case of Matthew 
Shepard. He was a very small man. In spite of his small size, two men, 
assisted by one or both of their girlfriends, took this man from a bar 
because he was gay, and, among other things, tied him to a fencepost 
and killed him.
  This was gruesome. It was a terrible beating and murder of this 
student from the University of Wyoming. But, what makes this case even 
more disturbing is that Wyoming authorities did not have enough money 
to prosecute the case. They did, of course, but in order to finalize 
the prosecution of that case, they had to lay off five of their law 
enforcement employees. The local authorities could not get any Federal 
resources because current hate crimes legislation does not extend to 
victims of hate crimes based upon sexual orientation.
  If there were no other reason in the world that we pass this 
legislation than the Matthew Shepard case, we should do it. I have 
great respect for those people in Wyoming who went to great sacrifice 
to prosecute that case.
  The hate crimes legislation being offered to the Defense 
Authorization bill is a sensible approach to combat these crimes based 
upon hate. The measure would extend basic hate crimes protections to 
all Americans, in all communities, by adding real or perceived sexual 
orientation, gender, or disability categories to be covered.
  The amendment would also remove limitations under current law which 
require that victims of hate crimes be engaged in a federally protected 
activity.
  There may be those who are listening to this debate and wondering why 
we need to protect those people who are handicapped or disabled? We 
need only

[[Page 11223]]

look back at some of the genocide of the Second World War and recognize 
that Hitler was totally opposed to anyone who was not, in his opinion, 
quite right. He went after people who had disabilities.
  So there are people, as sad as it may seem, who not only are hateful 
of people who are of a different color, a different religion, a 
different sexual orientation, but also someone who does not have all 
their physical or mental capacities.
  We must give law enforcement the tools they need to combat this kind 
of violence, to help ensure that every American can live in an 
environment free of terror brought on by hatred and violence.
  As Senator Kennedy will say, this amendment has been carefully 
drafted and modified to assure its constitutionality under current 
Supreme Court precedents and has been reexamined in light of the recent 
Morrison decision which invalidated the civil rights remedy in the 
Violence Against Women Act. I appreciate the work done by Senator 
Kennedy and the Judiciary Committee for taking such a close look at 
this legislation.
  I have shared with my colleagues two incidents in Nevada. There are 
many, many others. There are incidents in all 50 States and the 
District of Columbia of people who have been kidnaped, beaten, raped, 
and murdered as a result of their sexual orientation. Court records 
reveal that in each of these cases, with rare exception, there is hate 
that spews out of these people's mouths before the act takes place, 
derogatory names and slurs as they are taking people to their deaths, 
brutal sadistic murders.
  These victims are someone's son, someone's daughter, someone's 
brother, someone's sister, someone's loved one. People should not be 
killed because they are different; they should not be killed because 
someone has a certain, misguided standard of how someone else should 
be. People should not be killed because of hate.
  We live in America, the land of freedom and opportunity. We should 
make sure we stand for morality based upon people's accomplishments, 
not because of their race, color, creed, or sexual orientation.
  I extend my congratulations to Senator Kennedy for the work he has 
done. I hope these two men, Senators Hatch and Kennedy, who have worked 
so closely on legislation over the years, will see that this important 
aspect of the law which needs to be revised is revised in such a way 
that we can all hold our heads high and say: When these crimes take 
place in the future, authorities in States such as Wyoming will not 
have to lay off five law enforcement officers to prosecute the crime.
  The PRESIDING OFFICER (Mr. Smith of Oregon). The Senator from 
Massachusetts.
  Mr. KENNEDY. Mr. President, I thank all of our colleagues for 
addressing this issue on this Monday afternoon. We generally, on Monday 
afternoons as well as on Friday afternoons, have less heavy matters 
before our body.
  This afternoon we have had a very impressive series of statements 
that have urged us to take the action on tomorrow to move ahead and 
pass strong hate crimes legislation. I listened earlier to a number of 
our colleagues. I thought there were many excellent statements, which I 
am hopeful our Members will have a chance to review in the early 
morning in the Congressional Record. These statements have been 
absolutely superb. We have had a wide variety of different Members from 
different backgrounds and experiences, different political viewpoints, 
speak on this issue. That is the way it should be because we are 
talking about a matter of fundamental importance for our society and 
our country. We are talking about what our country is really about, 
what steps we are prepared to take to make America, America.
  We have shown that over a period of time, certainly since the end of 
the Civil War, this Congress has taken steps to guarantee the 
protection of constitutional rights, going back to 1866. In the more 
modern time, we enacted civil rights legislation in the early 1960s, 
after the extraordinary presence of Dr. King who awakened the 
conscience of our Nation in the latter part of the 1950s and early part 
of the 1960s. We went ahead and took action in 1964 on what was known 
as the Public Accommodation Act. We were asked: Will the kinds of 
enforcement mechanisms stand up under constitutional challenge? And 
they did.
  Then, in 1965, we took action in order to preserve the right to vote 
for our citizens. Now it seems almost extraordinary that a large number 
of Americans were denied the right to vote. At that time, it was 
debated for some time. We took strong steps to ensure that America was 
going to be America in terms of the right to vote. In 1968, we had our 
Fair Housing Act to make sure that citizens whose skin was a different 
color were not going to be denied the opportunity to purchase homes. We 
took action in 1968 to protect that right. It wasn't very effective. We 
had to come back and revisit that again in 1988. Still, the progress 
went on. In 1988, we passed legislation to protect the rights of the 
disabled in our society. We had made some progress with what is known 
as Title VII over time, but the Americans with Disabilities Act was the 
legislation that established protections. We were saying to the 
American people--and the American people supported it--that if 
individuals have a disability, they should not be discriminated against 
in our society.
  This is what we are talking about. We are talking about forms of 
discrimination. Discrimination is rooted in the basic emotion of 
hatred, of distrust, and of bigotry. We have seen it manifested in race 
relations in our country. Hatred, distrust and bigotry have also been 
reflected in other ways: on the basis of religion, national origin, 
sexual orientation, gender, and disability. We freed ourselves from 
discrimination based on national origin with the 1965 Immigration Act. 
The Immigration Act had certain rules for those who came from the Asian 
Pacific Island triangle. We only permitted less than 150 Asians to come 
onto our shores prior to 1965. Then we also had what was called the 
national origin quota system which discriminated against people who 
came from a number of the European countries. All of this is part of 
our national history.
  One of the amazing and important aspects of the progress that America 
has made in recent time is in trying to free us from the stains of 
discrimination. We are talking not only about those who have been 
discriminated against but those who have perpetrated the 
discrimination.
  We are talking about a continuum of this Nation attempting to define 
what America ought to be--a nation free from the forms of 
discrimination and hatred and bigotry. That is what distinguishes hate 
crimes from other criminal activities. Crimes based upon hatred and 
bigotry wound not only the individual, but they also wound and scar an 
entire community.
  Hate crimes occur on a daily basis in the United States of America. 
Numerous hate crime incidents have been mentioned by our colleagues and 
illustrated time and again. According to FBI statistics, nearly one 
hate crime is committed every hour.
  My colleagues and I want to take action that will move this country 
forward and free us from those acts of hatred that divide us.
  We can't solve all of these problems, but there is no reason, when we 
have violence in our society, that those who are charged with 
protecting the Constitution of the United States ought to be standing 
on the sidelines when violence based upon discrimination is taking 
place in the United States of America. Why should we limit ourselves--
those who have a responsibility--from helping and assisting those who 
are involved in local enforcement and State law enforcement, 
particularly when we are talking about these hate crimes against women 
in our society?
  An individual was charged in Yosemite this past year with the murder 
of four women. He told the police investigators he had fantasized about 
killing women for three decades. A gay, homeless man in Richmond, VA, 
was found

[[Page 11224]]

with a severed head and left at the top of a footbridge in James River 
Park near a popular gay meeting place. In Crystal Lake, IL, a Japanese 
American shopowner was shot to death outside of Chicago, based upon the 
fact of discrimination against Asians. Three synagogues in Sacramento, 
in July of 1999, were destroyed by arson on the basis of anti-Semitism.
  These things are happening today. With all due respect to my friend 
and colleague from Utah, his legislation is basically to have a further 
study about whether these kinds of activities are taking place. This 
amendment that he has, on page 1, talks about studies, the collection 
of data, the data to be collected. Then it shows the number of relevant 
offenses, the percentage of offenses prosecuted. It continues on with 
the identification of trends. Then it has provisions for grants to 
local communities, and eligibility, and grants of $100,000.
  We have had the FBI doing the study for the last 10 years. We have 
the figures that the FBI has produced. The one thing that the FBI has 
testified to, and is very clear about in their studies, is they believe 
it is vastly underestimating the amount of hate crimes that are taking 
place, because in so many instances there isn't the local training or 
prioritizing of hate crimes by local communities and State communities 
in order to collect the information or data on this.
  So we do know that this is happening today. It is happening in 
increasing numbers. The reports that we do have basically underestimate 
the amount of action and activity that is taking place, and the States 
themselves--some of them--have taken action. But very few, if any, have 
taken the kind of comprehensive action we are talking about.
  There are enormous gaps in the activities of the States in the kinds 
of protections they are providing. Others have talked about it, and I 
am glad to get into the various kinds of protections that we are 
talking about here, the reasons for this legislation. Again, I say, 
this is our opportunity--and tomorrow--to say whether we are going to 
be serious about taking action in this area of bigotry and hatred that 
is focused on particular groups in our society. We have been willing to 
take action in the past. We were willing to do it in the past. I have 
mentioned six or eight instances when this Congress thought there was 
such a compelling reason for us to take the action that we went ahead 
and took that action in order to try to do something about 
discrimination in our society.
  We have the same issue in a different form before the Senate now. In 
the early 1960s, we had discrimination against blacks because we were 
not going to permit them to vote. We passed legislation and then 
implementing legislation. We said we were not going to protect 
discrimination and bigotry, discriminating against blacks in the areas 
of housing. We did the same regarding the disabled on the Americans 
With Disabilities Act. We made progress on discrimination against women 
in our society, and we have made progress as well in terms of 
understanding the various challenges on freeing ourselves from some 
forms of discrimination on the basis of sexual orientation--although we 
have made very little in that area.
  The question is not the issue on sexual orientation. It is about 
violence against individual Americans. That is what it is about when 
you come down to it. It is violence based on bigotry. You can read long 
books about the origins of hatred and the origins of bigotry and the 
origins of prejudice and how they develop against individuals or 
individual groups. Many of them are different in the way that they did 
develop. But there is no difference about what is there basically when 
it is expressed in terms of violence. It is still violence against 
those individuals, and that is what we are attempting to address.
  I will put in the Record the various justifications, in terms of the 
constitutional issues. We can get into those and debate and discuss 
those in the course of the evening. We believe we are on sound basis 
for that. We have spent a great deal of time in assuring that the 
legislation was going to meet the challenges of Supreme Court 
decisions. I believe that we do. I respect those who believe we have 
not. But we are talking about taking action and doing it now.
  There are all kinds of reasons in this body why not to take action. 
But if we want to try to have an important response to the problems of 
hate crimes in our society, this is the way to do it. It is a 
bipartisan effort, and it has been since the development of our initial 
efforts under the leadership of Senator Simon and others a number of 
years ago, with just the collection of material. It has been, since 
that time, basically bipartisan, and it is on this measure now. It is 
whether we in the Senate are going to say that we have enough of the 
Matthew Shepard cases, that we have enough of the kind of vicious 
murdering on the basis of race, that we have enough prejudice and 
discrimination and expression of violence against Jewish individuals in 
our society, and we have had enough in terms of the violence against 
those who have a different sexual orientation. That is what the issue 
is, no more and no less.
  I want to take a few moments, and if others want to address the 
Senate, I will obviously permit them to do so. I want to give the 
assurances to our colleagues about how this particular legislation has 
been fashioned and has been shaped. It is targeted, it is limited, it 
is responsive in terms of its constitutional standing and how it 
basically complements the work of the States, which are attempting to 
try to deal with those issues, and how it is positive in terms of 
helping those States, and how, in many circumstances--for example, in a 
number of the rapes or aggravated sexual assaults, because criminal 
penalties under State laws are actually more severe than under Federal 
laws, the prosecution quite clearly would fall in those circumstances.
  As has been pointed out, in all the hate crimes prosecutions, the 
Federal authorities consult with the State and local enforcement 
officials before initiating an investigation or prosecution. The 
Federal jurisdiction allows the States to take advantage of the 
Department of Justice resources and personnel. Even if the State 
authorities ultimately bring the case, the Federal jurisdiction also 
allows the Attorney General to authorize the State prosecutor to bring 
a case based on Federal law, when that should be important or 
necessary.
  In cases where the States have adequate resources to investigate and 
prosecute a case and it appears determined to do so, the Federal 
Government will not file its own case. As has been the case under 
existing law, prosecutions under expanded case law would occur 
primarily in four situations: where the State does not have 
jurisdiction or the State prosecutors decline to act; or, after 
consultation between Federal and local authorities there is a consensus 
that a Federal prosecution is preferable because of the higher 
penalties and procedural advantages due to the complexity of the case; 
third, the state does not object to the Justice Department assuming 
jurisdiction; or fourth, that the State prosecution does not achieve a 
just result and the evidence warrants a subsequent Federal prosecution.
  Those are very limiting factors because they effectively give the 
States veto rights over Federal jurisdiction. We are talking about 
having an extremely effective remedy, one that will be in the interest 
of justice but one that is carefully sharpened in terms of its scope to 
make sure that we maintain local involvement and consider local 
priorities.
  The point is made that the Federal Hate Crimes Act would, in many 
cases, continue to overlap State jurisdiction. People have opposed this 
proposal for that reason. Violent crimes, whether motivated by 
discriminatory animus or not are generally covered under State law, and 
such an overlap is common. For example, there is overlapping Federal 
jurisdiction in cases of many homicides, in bank robberies, in 
kidnapings, in fraud, and other crimes.
  We have been willing to do it in other circumstances, and I believe 
that we must have overlapping jurisdiction for violent crimes based on 
animus and hatred as well. We must take meaningful

[[Page 11225]]

steps to do something about it. Clearly, I think we have an important 
responsibility to act.
  The importance of the amendment is to provide a backstop to State and 
local enforcement by allowing a Federal prosecution, if it is 
necessary, to achieve an effective just result and to permit Federal 
authorities to assist in local investigations.
  As has been mentioned, every Federal prosecutor would have to prove 
motivation beyond a reasonable doubt in all cases. The prosecution 
would present evidence that indicated that a motivating factor in the 
defendant's conduct was bias against a particular group. That is a 
question for the jury to decide. Obviously, the prosecutor must 
convince the jury that the crime was based upon bias in order to secure 
a conviction.
  I withhold and yield the floor.
  The PRESIDING OFFICER (Mr. Fitzgerald). The Senator from Utah is 
recognized.
  Mr. HATCH. Mr. President, I listened carefully to the comments of my 
colleague. He knows I have great respect for him in regard to civil 
rights matters. I have great commendation for him. I feel deeply, as he 
does. However, there is no use kidding about it. I think we ought to be 
prudent in the approach that we take. I think we ought to be 
constitutionally sound as well.
  In all of the comments of my dear friend, he still hasn't answered 
this basic question, which is: Can those who are pushing this very 
broad legislation that would federalize all hate crimes--and all crimes 
are hate crimes, by the way. I believe that is, if not wholly true, 
certainly substantially true--but can those who want to enact this 
broad legislation federalizing all hate-motivated crimes tell me the 
number of instances, if any, in which State or local authorities have 
refused or failed to investigate and prosecute hate crimes? If there 
are any cases in which State or local authorities have refused or 
failed to investigate and prosecute a hate crime, was it because the 
State or the local jurisdiction was unwilling, for whatever reason, to 
bring the prosecution?
  These questions haven't been answered. We asked them at the hearings, 
and the Justice Department couldn't answer them. In fact, Deputy 
Attorney General Holder testified that States and localities should be 
responsible for prosecuting the overwhelming majority of hate crimes. 
He said:

       State and local officials are on the front lines and do an 
     enormous job in investigating and prosecuting hate crimes 
     that occur in their communities. In fact, most hate crimes 
     are investigated and prosecuted at the State level.

  That is the Deputy Attorney General of the United States of America.
  We have never denied that hate crimes are occurring. Nobody can deny 
that. I want to get rid of them as much as anybody--certainly as much 
as the distinguished Senator from Massachusetts.
  But we have yet to hear of specific instances where States have 
failed or refused to prosecute. We have heard lots of horrific stories 
about hate crimes from Senators Kennedy, Reid, and Durbin. But I think 
they have neglected to finish the story.
  In each case, the Shepard case and the Byrd case, for example--
heinous crimes, no question about it--that should never have occurred; 
that should have been prosecuted; and were prosecuted. The State 
prosecutors investigated those cases. They prosecuted the defendants. 
In the Byrd case, the prosecutors even obtained the death penalty, 
something that could not be obtained if the Kennedy amendment had been 
passed and the Federal Government had brought the case. Think about 
that. I think some crimes are so heinous that the death penalty should 
be imposed. Certainly the Byrd case, where racists chained James Byrd 
to a truck and dragged him to death on a back road in Jasper, Texas, 
warranted the death penalty. But in all of those cases, there ought to 
be absolute proof of guilt. The crime ought to be so heinous that it 
justifies the penalty, and there should be no substantial evidence of 
discrimination. In the Byrd case and the Shepard case, the defendants 
were fully prosecuted to the fullest extent of the law.
  The question is not whether hate crimes are occurring. They are. We 
have them in our society--the greatest society in the world. We have 
some hate crimes. They are occurring. We all know it. They are 
occurring, and they are horrific and are to be abhorred. The question, 
though, is whether the States are adequately fighting these hate 
crimes, or whether we need to make a Federal case out of every hate-
motivated crime.
  My amendment calls for an analysis of that question. If my amendment 
passes and causes an analysis of that question, and we conclude that 
hate crimes are not being prosecuted by the State and local 
prosecutors, my gosh, I think then we are justified to federalize, if 
we can do it constitutionally, many of these crimes.
  A prudent thing, in my view in light of the constitutional questions 
that are raised by the Kennedy amendment, would be to do the analysis 
first.
  But my amendment does more than that. My amendment provides funds to 
assist State and local authorities in investigating and prosecuting 
hate-motivated crimes. My amendment provides resources and materials to 
be able to help States and localities with hate crimes. We are not 
ignoring the problems that exist.
  Deputy Attorney General Eric Holder conceded in his testimony before 
our committee, and he acknowledged that an analysis of the hate crimes 
statistics that have been collected needs to be conducted to determine 
whether State and local authorities are failing to combat hate crimes. 
Eric Holder testified that the statistics we have are, to use his term, 
``inadequate.'' In his testimony, Deputy Attorney General Holder 
repeatedly argued that the Justice Department should be permitted to 
involve itself in local hate crime cases where local authorities are 
``unable or unwilling to prosecute the case.'' Holder admitted in his 
testimony that there are ``not very many'' instances--later in his 
testimony, he said, ``rare instances''--where local jurisdictions, for 
whatever reason, are unwilling to proceed in cases that the Justice 
Department ``thinks should be prosecuted.''
  At the hearing, I asked Deputy Attorney General Holder if he could 
identify ``any specific instances in which State law enforcement 
authorities have deliberately failed to enforce the law against the 
perpetrator of a crime.'' I asked him a specific question, to give me 
any specific instances in which State law enforcement authorities have 
deliberately failed to enforce the law against the perpetrator of a 
crime.
  I went further and I asked him, ``So the question is, can you give me 
specific instances where the States have failed in their duty to 
investigate and prosecute hate crimes.'' Deputy Attorney General Holder 
responded with only a handful of specific instances--and they were not 
instances where the State or local authorities refused to act but 
instances where the Justice Department felt that it would have tried 
the case differently or sought a harsher sentence, or where the Justice 
Department was not pleased with the verdict that State prosecutors 
obtained. The few cases Holder identified generally were not cases 
where State officials abdicated their responsibility to investigate and 
prosecute hate-motivated crimes.
  I have to believe there may be some such cases, but the ones Mr. 
Holder identified were not persuasive. They did not show any widespread 
pattern of State and local authorities refusing or failing to 
investigate and prosecute hate crimes. I am happy to receive them from 
my distinguished friend from Massachusetts, and I am sure he may be 
able to cite some. Are there so many of them that we justify 
federalizing all hate crimes and dipping the Federal nose into 
everything that is done on the State and local levels? I don't know--in 
my mind, the case for doing so has not yet been made.
  Deputy Attorney General Holder also testified that no hate crimes 
legislation is worthwhile if it is invalidated as unconstitutional. It 
would be one thing if we were talking about a Supreme Court case that 
was decided 100

[[Page 11226]]

years ago. We are talking about a case, however, the Morrison case, 
that was decided one month ago and invalidates exactly what Senator 
Kennedy is doing today. If we find out that States are refusing to 
prosecute hate crimes, then we would be justified under the 14th 
amendment in enacting legislation directed at State officials or people 
acting under color of law who are denying victims of hate crimes the 
equal protection of the laws. If that were shown, then we would be 
justified, especially if such conduct were pervasive, or especially if 
there were a considerable number of cases where State officials were 
denying the equal protection of the laws by refusing to prosecute 
crimes committed against certain groups or classes of people. The 
supporters of the Kennedy amendment, I have to believe, will be able to 
come up with one, or two, or maybe three cases where State officials 
denied the equal protection of the laws in this manner. But even if 
then can, would that justify federalizing all hate crimes?
  Mr. President, 95 percent of all criminal activity is prosecuted in 
State and local jurisdictions--95 percent. There are good reasons for 
that. Frankly, they do every bit as good a job as Federal prosecutors 
do.
  But if you put in ``gender,'' as Senator Kennedy does in his 
amendment, then every rape or assault becomes a Federal crime. I can 
just hear some of the very radical groups demanding that U.S. attorneys 
in Federal court bring cases in every rape case because every rape, in 
my opinion, is a hate crime. However, there is no evidence that the 
States are not handling those sorts of cases properly. They may be in a 
better position to handle them well. It may be that the federal 
government needs to provide enough money, so that as a backup, the DNA 
postconviction and even preconviction DNA testing can be conducted and 
we can see that justice is done.
  I am not unwilling to consider doing that. In fact, I am considering 
doing just that. I take no second seat to any Senator in this Chamber 
in the desire to get rid of hate crimes. But I do think you have to be 
wise and you can't just emotionally do it because you want to 
federalize things and you want to get control of them, when, in fact, 
the State and local governments are doing a fairly decent job. If they 
are not, that is another matter. I want to see the statistics. That is 
one reason I want a study, an analysis of these matters, so that we can 
know.
  Senator Kennedy and I fought on this very floor for the Hate Crimes 
Statistics Act. I have taken a lot of abuse through the years for 
having done so by some on the conservative side, and by some on the 
liberal side for not doing more. We have the statistics. We have a 
pretty good idea that these crimes are being committed. We just haven't 
got an analysis, nor do we have the facts, on whether the States are 
doing an adequate job of combating these crimes. And why should we go 
blundering ahead, federalizing all these crimes, when we are not really 
sure that the State and local governments are not doing a good job. In 
fact, the evidence I have seen appears to show that the States are 
taking their responsibilities in this area seriously.
  My amendment does a lot. It calls for a study to determine whether 
these hate-motivated crimes are not being prosecuted at the State level 
in the manner that they should be. There are those in our body who even 
fight against that. I am talking about the Congress as a whole. I hope 
there is nobody in the Senate who would fight against that. We should 
do an analysis and a study. We should know. We have the statistics.
  I do want to clear up one thing. The Department of Justice did send 
up a handful of cases in which the Department felt the result in hate 
crime litigation was inadequate. But the very few cases they identified 
in no way justify this type of expansive legislation. That is what I am 
concerned about.
  Now, if we find that the States are refusing to do their jobs, that 
is another matter. We would be justified under the equal protection 
clause of the 14th amendment to enact remedial legislation prohibiting 
the States from denying our citizens the equal protection of the laws 
by refusing or failing to combat hate crimes.
  Supporters of the Kennedy amendment argue that their amendment is 
limited because the Justice Department could exercise jurisdiction only 
in four instances. Supporters of the Kennedy amendment call these 
instances ``exceptions''--as in the Justice Department will not 
exercise jurisdiction over State prosecutions of hate crimes, 
``except'' when one of the four circumstances outlined in the amendment 
is present. But these so-called ``exceptions'' to the exercise of 
federal jurisdiction are exceptions that swallow the rule.
  The Kennedy amendment raises serious constitutional decisions or 
questions. The amendment is not consistent with the Supreme Court's 
decisions in United States v. Lopez and United States v. Morrison, just 
decided last month. The amendment attempts to federalize crimes 
committed because of the victim's actual or perceived race, color, 
religion, national origin, gender, sexual orientation, or disability.
  Last month's Supreme Court decision in United States v. Morrison 
changed the legal landscape with regard to congressional power vis-a-
vis the States. In light of the Morrison decision, we first should take 
adequate steps to ensure that legislation is constitutional. And where 
serious constitutional questions are raised, we should responsibly 
pursue less intrusive alternatives. In the case of hate crimes 
legislation, we should at least determine whether a broad 
federalization of these crimes is needed, and whether a broad 
federalization of these crimes would be constitutional in light of 
Morrison. What may have been constitutional in our minds pre-Morrison 
may not be constitutional today.
  I was the primary cosponsor of the Violence Against Women Act. It may 
never have come up had Senator Biden and I not pushed it as hard as we 
did. I believed it was constitutional at the time, or I wouldn't have 
done it. But it clearly was stricken as unconstitutional by the Supreme 
Court.
  As the father of three daughters and a great number of 
granddaughters, I certainly want women protected in our society. If the 
State and local governments are not doing that, I will find some way. I 
think perhaps Senator Kennedy, I, and others of good faith can find 
some way of making sure that these wrongs are righted.
  But Congress has a duty to make sure that legislation it enacts is 
constitutional. Justice Scalia, as I stated earlier, recently 
criticized Congress for failing to consider whether legislation is 
constitutional before enacting it. Here is what he said:

       My court is fond of saying that acts of Congress come to 
     the court with the presumption of constitutionality. But if 
     Congress is going to take the attitude that it will do 
     anything it can get away with, and let the Supreme Court 
     worry about the Constitution [let the Supreme Court worry] 
     perhaps the presumption is unwarranted.

  He is saying that we have a constitutional obligation to live within 
the constraints of the Constitution. Although Morrison was a 5-4 
decision, as many important decisions are, it is the supreme law of 
this land. And the Kennedy approach is unconstitutional.
  It is unconstitutional because under the 14th amendment it seeks to 
criminalize purely private conduct. In the Morrison case, the Supreme 
Court reaffirmed that legislation enacted by Congress under the 14th 
Amendment may only criminalize State action, not individual action. So 
it really is unconstitutional from that standpoint, from the standpoint 
of the 14th Amendment.
  In addition, the Kennedy amendment is unconstitutional under the 
commerce clause. In Morrison, the Supreme Court emphasized that the 
conduct regulated by Congress under the commerce clause must be ``some 
sort of economic endeavor. Here, the conduct sought to be regulated--
the commission of hate crimes--is in no sense economic or commercial, 
but instead is non-economic and criminal in nature. Accordingly, it is 
just like the non-economic conduct Congress sought to regulate in the 
Gun Free Schools Zones Act and the Violence Against Women Act--statutes 
held to be unconstitutional in Lopez and Morrison.

[[Page 11227]]

  In an effort to be constitutional, the Kennedy amendment provides 
that federal jurisdiction can only be exercised in four circumstances 
where there is some sort of link to interstate commerce. These 
circumstances, however, probably do not make the amendment 
constitutional.
  First, the interstate travel circumstance set forth in the Kennedy 
amendment arguably may provide an interstate nexus, but it does nothing 
to change the criminal, generally non-economic nature of a hate crime. 
The same can be said for the other circumstances set forth in the 
Kennedy amendment authorizing the exercise of federal jurisdiction. The 
second circumstance's requirement, that the crime be committed by using 
a ``channel, facility or instrumentality of interstate'' commerce, also 
may provide a interstate nexus, but it is unclear precisely what hate 
crimes that would encompass: hijacking a plane or blowing up a rail 
line in connection with a hate crime? Such occurrences, if happening at 
all, surely are so infrequent as to make the Kennedy amendment 
unnecessary. And I might add, in these cases they have been prosecuted 
by state and local officials who have the right and power to do so. So 
there seems little or no reason to want the Kennedy amendment on that 
basis. But without some economic activity, it still makes you wonder.
  The third circumstance's requirement that the defendant have used a 
weapon that traveled in interstate commerce would eviscerate the limits 
on commerce clause authority the Court stressed in Lopez and Morrison. 
If using a weapon that happened to have traveled in interstate commerce 
to commit a hate crime provides a sufficient interstate nexus 
authorizing congressional action federalizing hate crimes, then by the 
same logic Congress could federalize essentially all State crimes where 
a firearm or other weapon is used. And that would include most 
homicides had assault cases.
  The fourth circumstance's requirement that the victim be working and 
that the hate crime interfere with such working is analogous to the 
reasoning the Court rejected in Morrison. In Morrison, the Court 
rejected the argument that gender-motivated violence substantially 
affects interstate commerce. It can only be presumed that the Court 
would similarly conclude that violence motivated by disability, sexual 
orientation or gender--again--does not substantially affect interstate 
commerce. The Court in Morrison and in Lopez rejected these ``costs of 
crime'' and ``national productivity'' arguments because they would 
permit Congress to regulate not only all violent crime, but all 
activities that might lead to violent crime, regardless of how 
tenuously they relate to interstate commerce.
  Finally, the Kennedy amendment's catch-all provision--that federal 
prosecution is permitted where the hate crime ``otherwise affects 
interstate or foreign commerce''--not only merely restates the 
constitutional test, it restates it wrongly. Under Lopez and Morrison, 
the conduct sought to be regulated under the commerce clause must 
``substantially affect'' interstate commerce. The Kennedy amendment 
provides for a much lower standard.
  With regard to the first amendment, the Kennedy amendment also has 
the potential to have a chilling effect on constitutionally protected 
speech. Under the amendment, the Federal Government could obtain a 
criminal conviction on the basis of evidence of speech that had no role 
in the chain of events that led to any alleged violent act proscribed 
by the statute. Evidence that a person holds racist or other bigoted 
views that are unrelated to the underlying crime cannot form the basis 
for a prosecution--otherwise the statute would be unconstitutional 
under the first amendment.
  The Kennedy hate crimes amendment is also bad policy. It would place 
significant burdens on federal law enforcement and Federal courts, 
undermine State sentencing regimes, and unduly interfere with State 
prosecution of violent crime.
  The Kennedy amendment prohibits hate crimes based upon the victims 
gender. I mentioned this earlier. Accordingly, the amendment, on its 
face, could effectively federalize all rapes and sexual assaults. Not 
only would such a statute likely be unconstitutional, it also would be 
bad policy. Seizing the authority to investigate and prosecute all 
incidents of rape and sexual assault from the States could impose a 
huge burden on Federal law enforcement agencies, Federal prosecutors, 
and the federal judiciary.
  I know that the Supreme Court is very concerned about the 
proliferation of federal crimes, as are all Federal courts in our 
country. They think we federalize far too many laws when, in fact, the 
States are doing a good job in prosecuting those crimes. And there is 
little or no reason for us to intrude that much on State laws when they 
are doing a good job.
  Authorities in Jasper, TX, secured a death penalty against the 
murderers of James Byrd, Jr., without either State or Federal hate 
crimes legislation. In contrast, the Kennedy amendment does not provide 
for the death penalty, even in the case of the most heinous hate 
crimes. Under the Kennedy amendment, then, a State could prosecute the 
same criminal acts more harshly than under the Kennedy hate crimes 
amendment. As a result, the Kennedy amendment would provide a lesser 
deterrent against hate-based criminal conduct.
  If there was ever a case justifying the death penalty, it certainly 
was the case of James Byrd, Jr. But then again it makes my point. The 
State and local prosecutors were fully capable of taking care of this 
matter. And why should we intrude the Federal Government's unwanted 
nose under the tent in this matter when the States are perfectly 
capable of taking care of these matters.
  The Kennedy amendment also would unduly interfere with state 
prosecutions of hate crimes. Contrary to claims by supporters of the 
Kennedy amendment, the amendment would not defer to State or local 
authorities at all. The amendment leaves the Justice Department free to 
insert itself in a local prosecution at the beginning, middle or end of 
the prosecution, and even after the local prosecutor has obtained a 
guilty verdict.
  Even if State or local authorities inform the federal government that 
they intend to prosecute the case and object to Federal interference, 
the Justice Department, nevertheless, is empowered by the amendment to 
exert enormous pressure on local prosecutors regarding the manner in 
which they handle the case, from charging decisions to plea bargaining 
decisions to sentencing decisions. In essence, the federal government 
can always exercise jurisdiction under the Kennedy amendment. And in so 
doing, the Kennedy amendment works an unwarranted expansion of federal 
authority to prosecute defendants--even when a competent State 
prosecution is available.
  In my view, hate crimes can be more sinister than non-hate crimes. A 
crime committed not only to harm an individual, but out of the motive 
of sending a message of hatred to an entire community--often a 
community that historically has been the subject of prejudice or 
discrimination--is appropriately punished more harshly or in a 
different manner than other crimes.
  In Wisconsin versus Mitchell, the Supreme Court essentially agreed 
that the motive behind the crime can make the crime more sinister and 
more worthy of harsher punishment. In that case, the Court upheld the 
State of Wisconsin's sentencing enhancement for hate crimes.
  There is a limited role for the federal government to play in 
combating hate crime. The federal government can assist State and local 
authorities in investigating and prosecuting hate crimes. In addition, 
the Hate Crimes Statistics Act of 1990, which I sponsored, provides for 
the nationwide collection of data regarding hate crimes.
  Because I believe there is a federal role to play, I have introduced 
legislation, held hearings, and am offering this amendment today. The 
Federal government has a responsibility to help States and local 
governments solve our country's problem of hate-motivated crime.
  But for a federal response to be meaningful, it must abide by the 
limitations imposed on Congress by the

[[Page 11228]]

constitution, as interpreted by the Supreme Court. This is especially 
true today in light of the Supreme Court's decisions in Lopez and 
Morrison, which emphasized that there are limits on congressional 
power. The Morrison case was decided just last month and changed the 
legal landscape regarding congressional power in relation to the 
States.
  We should be concerned, as the Supreme Court is, about the 
proliferation of companion Federal crimes in areas where State criminal 
statutes are sufficient. The Kennedy amendment would vastly expand the 
power and jurisdiction of the Federal Government to intervene in local 
law enforcement matters.
  Repeatedly, supporters of the Kennedy amendment have argued the State 
and local authorities are either ``unable or unwilling'' to investigate 
the prosecute hate crimes. Let's examine this rationale closely.
  First, the argument that State and local authorities are unable to 
get serious about hate crimes: I do not dispute that in certain cases 
the resources of local jurisdictions may be inadequate. We can solve 
that. But that cannot mean that we therefore should federalize these 
crimes. That soft-headed logic would lead us to argue that because 
State and local resources are inadequate to, for example, educate our 
young people in some parts of the country, then the Federal Government 
should conduct a nationwide takeover of elementary and secondary 
education. That, of course, would be the wrong solution. The right 
solution to a problem involving inadequate resources at the local level 
is to try to provide some Federal assistance where requested and where 
needed. That is what my amendment does.
  If it is not enough money, then let's beef up the money. That is what 
my amendment does. It provides the monetary means whereby we can assist 
the States if they do not have the money to investigate and prosecute 
hate-motivated crimes. With regard to postconviction DNA evidence, it 
may mean we have to do more from a Federal Government standpoint.
  Second, I have even more difficulty stomaching the second argument 
put forth by supporters of the Kennedy amendment, that State and local 
authorities are unwilling to get serious about hate crimes. I admit 
that I am not certain what the supporters of the Kennedy amendment mean 
when they say ``unwilling.'' I assume that we all understand and 
appreciate that in numerous cases State and local officials are 
unwilling to go forward because the evidence does not warrant going 
forward. Supporters of the Kennedy amendment cannot possibly mean to 
cover all of these cases. So what do they mean? A subset of these 
cases? Does the Federal Government intend to review every case where 
local officials fail to go forward, second guess their judgments, and 
then pick and chose on which of those cases they want to proceed? The 
true answer is that no one knows what supporters of the Kennedy 
amendment mean when they claim that States are ``unwilling'' to deal 
with hate crimes.
  If we want to act responsibly and sensibly, we ought to do what I 
suggest in my amendment--(1) conduct a comprehensive analysis of 
whether there, in fact, is unwillingness at the local level in the 
handling of crimes motivates against persons because of their 
membership in a particular class or group and (2) provide some grant 
monies to States who may lack resources.
  The amendment I have offered does not go as far as legislation I have 
offered in the past, but this is not because I do not believe that hate 
crimes are not a problem. Rather, it is because the Supreme Court has 
ruled as recently as a month ago in this area, and I do not think we 
can ignore that. The recent decision in Morrison requires that we step 
back and prudently assess whether legislation like the Kennedy 
amendment would pass constitutional muster, and I think more than an 
overwhelming case can be made that it does not.
  Let's assume that if this amendment is ultimately adopted, and 2 or 3 
years from now the Supreme Court decides the case based upon that 
amendment, and I am right and the Kennedy amendment is overturned, that 
means we are 3 more years down the line unable to do anything about 
hate crimes in our society when, if we do the appropriate analysis and 
get the information and do not walk in there emotionally, and try to 
give the State and local governments the monetary support and the other 
types of support we describe in our amendment, we could start tomorrow 
combating hate crimes at the federal level. The day my amendment is 
passed doing something about hate crimes, that will really be 
substantial and will work. It is a throw of the dice if we adopt the 
Kennedy amendment and that becomes law because I do not believe it can 
be possibly upheld by the Supreme Court in light of current 
constitutional law.
  My amendment is very limited and does not raise the constitutional 
questions raised by the Kennedy amendment. At the same time, it 
provides for Federal assistance to State and local authorities in 
combating hate crimes.
  With regard to both amendments, I find no fault at all--in fact, I 
commend my distinguished colleague from Massachusetts, my friend from 
Oregon, and others who are pushing the Kennedy amendment because they 
believe something has to be done about hate crimes in our society. I 
find no fault with that. In fact, I admire them for doing that. I find 
no fault with people trying to write laws, but I do believe we can be 3 
years down the line and lose all that time in making headway against 
hate criminal activity in our society.
  Where, if we do it right today and do it in a constitutionally sound 
way, as my amendment does, then we will have truly accomplished 
something. Perhaps we can get together and find some way of doing this 
so it brings everybody together; I would like to see all civil rights 
bills, all bills that involve equal protection under the laws pass 
unanimously, if we can. I want to work to that end.
  I pledge to work with my colleagues from Massachusetts, Oregon, 
Vermont, and others in this body in trying to get us there. We are all 
after the same thing, and that is to have a better society so that 
people realize there are laws by which they have to live, that there 
are moral laws by which they should live, and that people realize this 
society has been a great society and will continue to be, the more we 
are concerned about our fellow men and women and equality under the 
law.
  We differ on the ways to get there at this point. Maybe we can get 
together and find some way of resolving the differences. I find no 
fault with my colleagues, other than that I think Morrison is so clear, 
and it was decided only a month ago. I do find fault in that sense, to 
push an amendment probably is unconstitutional.
  I find no fault with the motivations behind those supporting the 
Kennedy amendment. In fact, I am very proud of my colleagues for 
wanting to do something in this area, to make a difference in our 
society and help our society be even better. I commend them and thank 
them for their efforts in that regard, but I do think we ought to do it 
in a constitutional way. I do think we ought to do it in a thoughtful 
way. I do think we ought to do it in an analytical way. I do think we 
ought do it in a way that will bring people together, not split them 
apart. And I do think we ought to do it in a way that will help State 
and local prosecutors, rather than Federal prosecutors, to handle these 
cases in manners that are proper and acceptable in our society. I do 
think it ought to be done in a way that does not burden our Federal 
courts with a plethora of cases, in addition to the drug cases 
burdening our courts today, when State and local governments are 
totally capable of taking care of it, perhaps with some monetary 
assistance from the Federal Government.
  I look forward to finding a way whereby Senator Leahy and I and 
others can get together to resolve these problems of postconviction DNA 
testing because regardless of where one stands on the death penalty, 
for or against it, that is not the issue. The issue is justice, and 
that is what the issue is here as well.

[[Page 11229]]

  Does anyone in this body think I like opposing this amendment? I 
don't think so. I have stood up on too many of these matters for them 
to think that. But defending the Constitution is more important to me 
than ``feeling good'' about things or just ``feeling emotional'' about 
things. I do feel emotionally about hate crimes. I do want to stamp 
them out. I do want to get rid of them. I want to start now, not 3 
years from now when we have to start all over again because the Court 
rules that the Kennedy amendment is unconstitutional.
  I have taken enough time. I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, on tomorrow we will have the opportunity 
to choose between the proposal of the Senator from Utah and the 
amendment Senator Smith and I are recommending to our colleagues.
  When it is all said and done, as I mentioned earlier, the proposal 
that has been put forward by my friend and colleague from Utah is 
basically to conduct a study about the problems and frequency of hate 
crimes, permits up to $5 million in authorization, and permits the 
Justice Department to provide grants for prosecution. That is really 
the extent of the amendment of the Senator from Utah.
  He has outlined his reasons for supporting that particular approach. 
I heard him say earlier he believes that it is really going to solve 
the problem and that it is going to really deal with the issue of hate 
crimes. Of course, I do not believe that to be the case.
  We reviewed this issue on a number of different occasions in the 
Judiciary Committee. I understand his position. I respect it, although 
I do have some difficulties in being persuaded by it this evening.
  For example, he basically has not questioned the existing limited 
hate crimes legislation that is on the books, 18 U.S.C. Sec. 245, 
dealing with the issue of race, color, religion, and national origin in 
our society, even though it is restricted in its application. He did 
not say we ought to eliminate that situation. He did not really refer 
to eliminating current hate crimes law.
  The fact is, we have very limited hate crimes legislation on the 
books. Current law is restricted, as the Justice Department testified 
before the Judiciary Committee, in ways that virtually deny 
accountability for the serious hate crimes that are committed by 
individuals on the basis of race, color, religion, or national origin 
in our society. Specifically, it requires the federal government to 
prove that the victim was engaged in a federally protected activity 
during the commission of the crime. We are trying to address this 
deficiency and to expand current law to include gender, disability, and 
sexual orientation.
  Those of us who will favor our position tomorrow believe the ultimate 
guarantor of the right for privacy, liberty, and individual safety and 
security in our society is the Constitution of the United States. That 
is where the repository for protecting our rights and our liberties is 
enshrined. It is enshrined in the Constitution, as interpreted by the 
Supreme Court. But ultimately we are the ones who help define the 
extent of the Constitution's protection.
  When we find that we have inadequate protection for citizens because 
of sexual orientation, or gender, or race, that challenge cries out for 
us to take action.
  My good friend from Utah does not mind federalizing class action 
suits to bring them into the Federal court. He does not mind 
federalizing property issues in the takings legislation, to bring those 
into Federal court. For computer fraud, he does not mind bringing those 
crimes in Federal courts. But do not bring in Federal power to do 
something about hate crimes. I find that absolutely extraordinary.
  Why are we putting great protection for property rights and computer 
fraud and class actions into Federal court, giving them preference over 
doing something about the problems of hate crimes in our society that 
even Senator Hatch admits are taking place? We see from the data 
collected by the FBI and various studies that hate crimes are taking 
place. That is a fact. Look at the statistics that have been collected 
over the last few years, from 1995 through 1998. We see what is 
happening with regard to race, religion, national origin, ethnic 
background, sexual orientation, and disability. As we have heard from 
the FBI and the Justice Department, they believe the FBI statistics 
vastly underestimate what is happening in our society.
  The fact is, hate crimes are unlike any other crimes. Listening to 
the discussion of those who are opposed to our amendment, one would 
think these crimes were similar to pick-pocketing cases, misdemeanors, 
or traffic violations.
  The kind of impact that hate crimes have in terms of not only the 
individual but the community is well understood. It should be well 
understood by communities and individuals. I do not have to take the 
time to quote what the American Psychological Society says about the 
enduring kind of burden that individuals undergo when they have been 
the victims of hate crimes over the course of their lifetime, even in 
contrast to other crimes of violence against individuals. It has a 
different flavor, and it has an impact on the victim, the family and 
the community. Hate crimes are an outrageous reflection of bigotry and 
hatred based on bias that cannot be tolerated in our society.
  We have an opportunity to take some moderate steps to do something 
about it--to untie the hands of the Department of Justice. That is what 
tomorrow's vote is about. We have the constitutional authorities on our 
side, including the Justice Department, and others.
  I will include the list of distinguished constitutional authorities 
that are supporting our positions.
  Mr. President, I ask unanimous consent that the U.S. Department of 
Justice letter dated June 13, 2000, on the constitutionality of the 
Local Law Enforcement Enhancement Act of 2000 be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                    Washington, DC, June 13, 2000.
     Hon. Edward Kennedy,
     U.S. Senate, Washington, DC.
       Dear Senator Kennedy: This letter responds to your request 
     for our views on the constitutionality of a proposed 
     legislative amendment entitled the ``Local Law Enforcement 
     Enhancement Act of 2000.'' Section 7(a) of the bill would 
     amend title 18 of the United States Code to create a new 
     Sec. 249, which would establish two criminal prohibitions 
     called ``hate crime acts.'' First, proposed Sec. 249(a)(1) 
     would prohibit willfully causing bodily injury to any person, 
     or attempting to cause bodily injury to any person through 
     the use of fire, a firearm, or an explosive or incendiary 
     device, ``because of the actual or perceived race, color, 
     religion, or national origin of any person.'' Second, 
     proposed Sec. 249(a)(2) would prohibit willfully causing 
     bodily injury to any person, or attempting to cause bodily 
     injury to any person through the use of fire, a firearm, or 
     an explosive or incendiary device, ``because of the actual or 
     perceived religion, national origin, gender, sexual 
     orientation, or disability of any person,'' 
     Sec. 249(a)(2)(A), but only if the conduct occurs in at least 
     one of a series of defined ``circumstances'' that have an 
     explicit connection with or effect on interstate or foreign 
     commerce, Sec. 249(a)(2)(B).
       In light of United States v. Morrison, 120 S. Ct. 1740 
     (2000), and other recent Supreme Court decisions, defendants 
     might challenge the constitutionality of their convictions 
     under Sec. 249 on the ground that Congress lacks power to 
     enact the proposed statute. We believe, for the reasons set 
     forth below, that the statute would be constitutional under 
     governing Supreme Court precedents. We consider in turn the 
     two proposed new crimes that would be created in Sec. 249.


                  1. proposed 18 u.s.c. Sec. 249(a)(1)

       Congress may prohibit the first category of hate crime acts 
     that would be proscribed--actual or attempted violence 
     directed at persons ``because of the[ir] actual or perceived 
     race, color, religion, or national origin,'' Sec. 249(a)(1)--
     pursuant to its power to enforce the Thirteenth Amendment to 
     the United States Constitution. Section 1 of that amendment 
     provides, in relevant part, ``[n]either slavery nor 
     involuntary servitude . . . shall exist within the United 
     States.'' Section 2 provides, ``Congress shall have power to 
     enforce this article by appropriate legislation.''
       Under the Thirteenth Amendment, Congress has the authority 
     not only to prevent

[[Page 11230]]

     the ``actual imposition of slavery or involuntary 
     servitude,'' but to ensure that none of the ``badges and 
     incidents'' of slavery or involuntary servitude exists in the 
     United States, Griffin v. Breckinridge, 403 U.S. 88, 105 
     (1971); see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-
     43 (1968) (discussing Congress's power to eliminate the 
     ``badges,'' ``incidents,'' and ``relic[s]'' of slavery). `` 
     `Congress has the power under the Thirteenth Amendment 
     rationally to determine what the badges and incidents of 
     slavery, and the authority to translate that determination 
     into effective legislation.' '' Griffin, 403 U.S. at 105 
     (quoting Jones, 392 U.S. at 440); see also Civil Rights 
     Cases, 109 U.S. 3, 21 (1883) (``Congress has a right to enact 
     all necessary and proper laws for the obliteration and 
     prevention of slavery, with all its badges and incidents''). 
     In so legislating, Congress may impose liability not only for 
     state action, but for ``varieties of private conduct,'' as 
     well. Griffin, 403 U.S. at 105.
       Section 2(10) of the bill's findings provides, in relevant 
     part, that ``eliminating racially motivated violence is an 
     important means of eliminating, to the extent possible, the 
     badges, incidents, and relics of slavery and involuntary 
     servitude,'' and that ``[s]lavery and involuntary servitude 
     were enforced . . . through widespread public and private 
     violence directed at persons because of their race.'' So long 
     as Congress may rationally reach such determinations--and we 
     believe Congress plainly could--the prohibition of racially 
     motivated violence would be a permissible exercise of 
     Congress's broad authority to enforce the Thirteenth 
     Amendment.
       That the bill would prohibit violence against not only 
     African Americans but also persons of other races does not 
     alter our conclusion. While it is true that the institution 
     of slavery in the United States, the abolition of which was 
     the primary impetus for the Thirteenth Amendment, primarily 
     involved the subjugation of African Americans, it is well-
     established by Supreme Court precedent that Congress's 
     authority to abolish the badges and incidents of slavery 
     extends ``to legisla[tion] in regard to `every race and 
     individual.' '' McDonald v. Santa Fe Trail Transp. Co., 427 
     U.S. 273, 288 n.18 (1976) (quoting Hodges v. United States, 
     203 U.S. 1, 16-17 (1906), and citing Jones v. Alfred H. Mayer 
     Co., 392 U.S. 409, 441 n.78 (1968)). In McDonald, for 
     example, the Supreme Court held that 42 U.S.C. Sec. 1981, a 
     Reconstruction-era statute that was enacted pursuant to, and 
     contemporaneously with, the Thirteenth Amendment, prohibits 
     racial discrimination in the making and enforcement of 
     contracts against all persons, including whites.--See 
     McDonald, 427 U.S. at 286-96.
       The question whether Congress may prohibit violence against 
     persons because of their actual or perceived religion or 
     national origin is more complex, but there is a substantial 
     basis to conclude that the Thirteenth Amendment grants 
     Congress that authority, at a minimum, with respect to some 
     religions and national origins. In Saint Francis College v. 
     Al-Khazraii, 481 U.S. 604, 613 (1987), the Court held that 
     the prohibition of discrimination in Sec. 1981 extends to 
     discrimination against Arabs, as Congress intended to protect 
     ``identifiable classes of persons who are subjected to 
     intentional discrimination solely because of their ancestry 
     or ethnic characteristics.'' Similarly, the Court in Shaare 
     Tefila Congregation v. Cobb, 481 U.S. 615, 617-18 (1987), 
     held that Jews can state a claim under 42 U.S.C. Sec. 1982, 
     another Reconstruction-era antidiscrimination statute enacted 
     pursuant to, and contemporaneously with, the Thirteenth 
     Amendment. In construing the reach of these two 
     Reconstruction-era statutes, the Supreme Court found that 
     Congress intended those statutes to extend to groups like 
     ``Arabs'' and ``Jews'' because those groups ``were among the 
     peoples [at the time the statutes were adopted] considered to 
     be distinct races.'' Id.; see also Saint Francis College, 481 
     U.S. at 610-13. We thus believe that Congress would have 
     authority under the Thirteenth Amendment to extend the 
     prohibitions of proposed Sec. 249(a)(1) to violence that is 
     based on a victim's religion or national origin, at least to 
     the extent the violence is directed at members of those 
     religions or national origins that would have been considered 
     races at the time of the adoption of the Thirteenth 
     Amendment.
       None of the Court's recent federalism decisions casts doubt 
     on Congress's powers under the Thirteenth Amendment to 
     eliminate the badges and incidents of slavery. Both Boerne v. 
     Flores, 521 U.S. 507 (1997), and United States v. Morrison, 
     120 S. Ct. 1740 (2000), involved legislation that was found 
     to exceed Congress's powers under the Fourteenth Amendment. 
     The Court in Morrison, for example, found that Congress 
     lacked the power to enact the civil remedy of the Violence 
     Against Women Act (``VAWA''), 42 U.S.C. Sec. 13981, pursuant 
     to the Fourteenth Amendment because that amendment's equal 
     protection guarantee extends only to ``state action,'' and 
     the private remedy there was not, in the Court's view, 
     sufficiently directed at such ``state action.'' 120 S. Ct. at 
     1756, 1758. The Thirteenth Amendment, however, plainly 
     reaches private conduct as well as government conduct, and 
     Congress thus is authorized to prohibit private action that 
     constitutes a badge, incident or relic of slavery. See 
     Griffin, 403 U.S. at 105; Jones, 392 U.S. at 440-43. 
     Enactment of the proposed Sec. 249(a)(1) therefore would be 
     within Congress's Thirteenth Amendment power.


                  2. Proposed 18 U.S.C. Sec. 249(a)(2)

       Congress may prohibit the second category of hate crime 
     acts that would be proscribed--certain instances of actual or 
     attempted violence directed at persons ``because of the[ir] 
     actual or perceived religion, national origin, gender, sexual 
     orientation, or disability,'' Sec. 249(a)(1)(A)--pursuant to 
     its power under the Commerce Clause of the Constitution, art. 
     I., Sec. 8, cl. 3.
       The Court in Morrison emphasized that ``even under our 
     modern, expansive interpretation of the Commerce Clause, 
     Congress' regulatory authority is not without effective 
     bounds.'' 120 S. Ct. at 1748; See also United States v. 
     Lopez, 514 U.S. 549, 557-61 (1995). Consistent with the 
     Court's emphasis, the prohibitions of proposed Sec. 249(a)(2) 
     (in contrast to the provisions of proposed Sec. 249(a)(1), 
     discussed above), would not apply except where there is an 
     explicit and discrete connection between the proscribed 
     conduct and interstate or foreign commerce, a connection that 
     the government would be required to allege and prove in each 
     case.
       In Lopez, the Court considered Congress's power to enact a 
     statute prohibiting the possession of firearms within 1000 
     feet of a school. Conviction for a violation of that statute 
     required no proof of a jurisdictional nexus between the gun, 
     or the gun possession, and interstate commerce. The statute 
     included no findings from which the Court could find that the 
     possession of guns near schools substantially affected 
     interstate commerce and, in the Court's view, the possession 
     of a gun was not an economic activity itself. Under these 
     circumstances, the Court held that the statute exceeded 
     Congress's power to regulate interstate commerce because the 
     prohibited conduct could not be said to ``substantially 
     affect'' interstate commerce. Proposed Sec. 249(a)(2), by 
     contrast to the statute invalidated in Lopez, would require 
     pleading and proof of a specific jurisdictional nexus to 
     interstate commerce for each and every offense.
       In Morrison, the Court applied its holding in Lopez to find 
     unconstitutional the civil remedy provided in VA WA, 42 
     U.S.C. Sec. 13981. Like the prohibition of gun possession in 
     the statute at issue in Lopez, the VA WA civil remedy 
     required no pleading or proof of a connection between the 
     specific conduct prohibited by the statute and interstate 
     commerce. Although the VA WA statute was supported by 
     extensive congressional findings of the relationship between 
     violence against women and the national economy, the Court 
     was troubled that accepting this as a basis for legislation 
     under the Commerce Clause would permit Congress to regulate 
     anything, thus obliterating the ``distinction between what is 
     truly national and what is truly local.'' Morrison, 120 S. 
     Ct. at 1754 (citing Lopez, 514 U.S. at 568). By contrast, the 
     requirement in proposed Sec. 249(a)(2) of proof in each case 
     of a specific nexus between interstate commerce and the 
     proscribed conduct would ensure that only conduct that falls 
     within the Commerce power, and thus is ``truly national,'' 
     would be within the reach of that statutory provision.
       The Court in Morrison emphasized, as it did in Lopez, 514 
     U.S. at 561-62, that the statute the Court was invalidating 
     did not include an ``express jurisdictional element,'' 120 S. 
     Ct. at 1751, and compared this unfavorably to the criminal 
     provision of VA WA, 18 U.S.C. Sec. 2261(a)(1), which does 
     include such a jurisdictional nexus. See id. at 1752 n.5. The 
     Court indicated that the presence of such a jurisdiction 
     nexus. See id. at 1752 n.5. The Court indicated that the 
     presence of such a jurisdictional nexus would go far towards 
     meeting its constitutional concerns:
       ``The second consideration that we found important in 
     analyzing [the statute in Lopez] was that the statute 
     contained ``no express jurisdictional element which might 
     limit its reach to a discrete set of firearm possessions that 
     additionally have an explicit connection with or effect on 
     interstate commerce.'' [514 U.S.] at 562. Such a 
     jurisdictional element may establish that the enactment is in 
     pursuance of Congress' regulation of interstate commerce.''
       Id. at 1750-51; see also id. at 1751-52 (``Although Lopez 
     makes clear that such a jurisdictional element would lend 
     support to the argument that [the provision at issue in 
     Morrison] is sufficiently tied to interstate commerce, 
     Congress elected to cast [the provision's] remedy over a 
     wider, and more purely intrastate, body of violent crime.'')
       While the Court in Morrison stated that Congress may not 
     ``regulate noneconomic, violent criminal conduct based solely 
     on that conduct's aggregate effect on interstate commerce,'' 
     id. at 1754, the proposed regulation of violent conduct in 
     Sec. 249(a)(2) would not be based ``solely on that conduct's 
     aggregate effect on interstate commerce,'' but would instead 
     be based on a specific and discrete connection between each 
     instance of prohibited conduct and interstate or foreign 
     commerce. Specifically, with respect to violence because of 
     the actual or perceived religion, national origin, gender, 
     sexual orientation or disability of the victim, proposed 
     Sec. 249(a)(2) would require the government to prove one or 
     more specific jurisdictional commerce ``elements'' beyond a 
     reasonable

[[Page 11231]]

     doubt. This additional jurisdictional requirement would 
     reflect Congress's intent that Sec. 249(a)(2) reach only a 
     ``discrete set of [violent acts] that additionally have an 
     explicit connection with or effect on interstate commerce,'' 
     120 S. Ct. at 1751 (quoting Lopez, 514 U.S. at 562), and 
     would fundamentally distinguish this statute from those that 
     the Court invalidated in Lopez and in Morrison. Absent such a 
     jurisdictional element, there exists the risk that ``a few 
     random instances of interstate effects could be used to 
     justify regulation of a multitude of intrastate transactions 
     with no interstate effects.'' United States v. Harrington, 
     108 F.3d 1460, 1467 (D.C. Cir. 1997). By contrast, in the 
     context of a statute with an interstate jurisdictional 
     element (such as in proposed Sec. 249(a)(2)(B)), ``each case 
     stands alone on its evidence that a concrete and specific 
     effect does exist.''
       The jurisdictional elements in Sec. 249(a)(2)(B) would 
     ensure that each conviction under Sec. 249(a)(2) would 
     involve conduct that Congress has the power to regulate under 
     the Commerce Clause. In Morrison, the Court reiterated its 
     observation in Lopez that there are `` `three broad 
     categories of activity that Congress may regulate under its 
     commerce power.' '' 120 S. Ct. at 1749 (quoting Lopez, 514 
     U.S. at 558):
       ``First, Congress may regulate the use of the channels of 
     interstate commerce. . . . Second, Congress is empowered to 
     regulate and protect the instrumentalities of interstate 
     commerce, or persons or things in interstate commerce, even 
     though the threat may come only from intrastate activities. . 
     . . Finally, Congress' commerce authority includes the power 
     to regulate those activities having a substantial relation to 
     interstate commerce, . . . i.e., those activities that 
     substantially affect interstate commerce.''--Id. (quoting 
     Lopez, 514 U.S. at 558-59).
       Proposed Sec. 249(a)(2)(B)(i) would prohibit the violent 
     conduct described in Sec. 249(a)(2)(A) where the government 
     proves that the conduct ``occurs in the course of, or as the 
     result of, the travel of the defendant or the victim (a) 
     across state lines or national borders, or (b) using a 
     channel, facility, or instrumentality of interstate or 
     foreign commerce.'' A conviction based on such proof would be 
     within Congress's powers to ``regulate the use of the 
     channels of interstate commerce,'' and to ``regulate and 
     protect . . . persons or things in interstate commerce.'' 
     Proposed Sec. 249(a)(2)(B)(ii) would prohibit the violent 
     conduct described in Sec. 249(a)(2)(A) where the government 
     proves that the defendant ``uses a channel, facility or 
     instrumentality of interstate or foreign commerce in 
     connection with the conduct''--such as sending a bomb to the 
     victim via common carrier--and would fall within the power of 
     Congress to ``regulate the use of the channels of interstate 
     commerce'' and ``to regulate and protect the 
     instrumentalities of interstate commerce.''
       Proposed Sec. 249(a)(2)(B)(iii) would prohibit the violent 
     conduct described in Sec. 249(a)(2)(A) where the government 
     proves that the defendant ``employs a firearm, explosive or 
     incendiary device, or other weapon that has traveled in 
     interstate or foreign commerce in connection with the 
     conduct.'' Such a provision addresses harms that are, in a 
     constitutionally important sense, facilitated by the 
     unencumbered movement of weapons across state and national 
     borders, and is similar to several other federal statutes in 
     which Congress has prohibited persons from using or 
     possessing weapons and other articles that have at one time 
     or another traveled in interstate or foreign commerce. The 
     courts of appeals uniformly have upheld the constitutionality 
     of such statutes. And, in Lopez itself, the Supreme Court 
     cited to the jurisdictional element in the statute at issue 
     in United States v. Bass, 404 U.S. 336 (1971), as an example 
     of a provision that ``would ensure, through case-by-case 
     inquiry, that the firearm possession in question affects 
     interstate commerce.'' 514 U.S. at 561. In Bass, 404 U.S. at 
     350-51, and in Scarborough v. United States, 431 U.S. 563 
     (1977), the Court construed that statutory element to permit 
     conviction upon proof that a felon had received or possessed 
     a firearm that had at some time passed in interstate 
     commerce.
       Proposed Sec. 249(a)(2)(B)(iv)(I) would apply only where 
     the government proves that the violent conduct ``interferes 
     with commercial or other economic activity in which the 
     victim is engaged at the time of the conduct.'' This is one 
     specific manner in which the violent conduct can affect 
     interstate or foreign commerce. This jurisdictional element 
     also is an exercise of Congress's power to regulate `` 
     `persons or things in interstate commerce.' '' Morrison, 120 
     S. Ct. at 1749 (quoting Lopez, 514 U.S. at 558). As Justice 
     Kennedy (joined by Justice O'Connor) wrote in Lopez, 514 U.S. 
     at 574, ``Congress can regulate in the commercial sphere on 
     the assumption that we have a single market and a unified 
     purpose to build a stable national economy.''
       Finally, proposed Sec. 249(a)(2)(B)(iv)(II) would prohibit 
     the violent conduct described in Sec. 249(a)(2)(A) where the 
     government proves that the conduct ``otherwise affects 
     interstate or foreign commerce.'' Such ``affects commerce'' 
     language has long been regarded as the appropriate means for 
     Congress to invoke the full extent of its authority. See, 
     e.g., Jones v. United States, 120 S. Ct. 1904 (2000), No. 99-
     5739, slip op. at 5 (May 22, 2000) (``the statutory term 
     `affecting . . . commerce,' . . . when unqualified, signal[s] 
     Congress' intent to invoke its full authority under the 
     Commerce Clause''); Allied-Bruce Terminix Cos. v. Dobson, 513 
     U.S. 265, 273 (1995) (``Th[e] phrase--`affecting commerce'--
     normally signals Congress's intent to exercise its Commerce 
     Clause powers to the full.''). Of course, that this element 
     goes to the extent of Congress's constitutional power does 
     not mean that it is unlimited. Interpretation of the 
     ``affecting . . . commerce'' provision would be addressed on 
     a case-by-case basis, within the limits established by the 
     Court's doctrine. There likely will be cases where there is 
     some question whether a particular type or quantum of proof 
     is adequate to show the ``explicit'' and ``concrete'' effect 
     on interstate and foreign commerce that the element requires. 
     See Hamilton, 108 F.3d at 1464, 1467 (citing Lopez, 514 U.S. 
     at 562, 567). But on its face this element is, by its nature, 
     within Congress's Commerce Clause power.
       In sum, because Sec. 249(a)(2) would prohibit violent 
     conduct in a ``discrete set'' of cases, 120 S. Ct. at 1751 
     (quoting Lopez, 514 U.S. at 562), where that conduct has an 
     ``explicit connection with or effect on'' interstate or 
     foreign commerce, id., it would satisfy the constitutional 
     standards articulated in the Court's recent decisions.
       The office of Management and Budget has advised that there 
     is no objection from the standpoint of the Administration's 
     program to the presentation of this letter.
           Sincerely,
                                                     Robert Raben,
                                       Assistant Attorney General.

  Mr. KENNEDY. I was startled to hear my friend and colleague suggest 
that when they asked the Justice Department which States took no action 
in the Federal Government prosecution, he said there was not any. He 
did not read his response from the Justice Department because I have in 
my hand the response from the Justice Department that lists their 
response. I am not going to take the time tonight to go all the way 
through, but they have been listed. He ought to ask his staff for that 
because it has been sent to the Judiciary Committee, of which he is the 
chairman.
  Included in the Justice Department's response are cases showing 
instances where the Department has pursued cases Federally when the 
State cannot respond as effectively as the Federal Government. For 
example, when State penalties are less severe than Federal penalties or 
where there are differences in applicable criminal procedure.
  The idea that there really aren't times when States are unable to 
prosecute a case just does not hold water, because the cases are out 
there and have been supplied by the Justice Department.
  Furthermore, this chart shows what is happening across the country in 
the various States. Eight States have absolutely no hate crimes 
statutes, 22 States have criminal statutes for disability bias crimes, 
21 States plus the District of Columbia have criminal statutes for 
sexual orientation bias crimes, and 20 States identify gender bias 
crimes.
  But, if you are in any of these States shown on this chart which are 
colored gray, including many in the Northeast, as well as out in the 
West, and you are involved in the beating or battering of an individual 
American because of their sexual orientation, there are no hate crimes 
statutes under which to prosecute the perpetrator.
  The States shown in yellow on the chart have no hate crimes statutes 
at all. As I said, the States shown in gray have no protection at all 
for crimes committed because of a person's sexual orientation. Many of 
those States that have hate crimes laws are inadequate because they do 
not include all of the categories, including sexual orientation, gender 
and disability.
  We have one particular State, Utah, where a judge found the hate 
crime law to be incomplete because it specified no classes of victims--
the State included itself as having a hate crimes law. The judge was 
forced to dismiss the felony charges against two defendants who 
allegedly beat and terrorized people in a downtown city. The case was 
effectively dismissed because the state hate crime law was so vaguely 
drafted that it failed to provide any of the protections that other 
state hate crimes law do that clearly define classes of people who are 
protected by race, religion, national origin, ethnic background, 
gender, sexual orientation, or disability.

[[Page 11232]]

  The reality in the United States today is that either we believe we 
have some responsibility to protect our fellow Americans from these 
kinds of extraordinary actions based upon bigotry and prejudice or we 
don't.
  We have taken action in the past. We have done it when the action was 
based upon bigotry and prejudice and denial of the right to vote. We 
have taken action when prejudice and bigotry have denied people public 
accommodation. We have taken action against bigotry and prejudice when 
people have been denied housing. We have taken action against bigotry 
and prejudice toward people with disabilities.
  Now we are asking the Senate to take action when there is violence 
against American citizens based upon prejudice and bigotry. That is why 
this vote tomorrow is so important. That is what the issue is about. It 
is very basic and fundamental, and it is enormously important.
  It is part of a continuing process of the march towards a fairer and 
more just America. We have been trying to free ourselves from the 
stains of discrimination on the basis of race. We are making progress 
in terms of religion, national origin, and ethnic background. We are 
doing it with regard to gender, disability, and sexual orientation.
  What we are doing with this legislation is saying, at least in these 
areas, protect American citizens from prejudice and discrimination and 
violence that is being directed towards them. Let us make that a 
priority; let all Americans know that we are not going to fight 
prejudice and discrimination with one hand tied behind our backs. The 
Federal Government should have both hands involved in trying to protect 
our citizens from this form of discrimination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I don't disagree with the Senator that hate 
crimes are occurring, but they are being prosecuted by State and local 
officials. That is the point. Many of the cases --and there aren't a 
lot of cases that the Justice Department has provided--are cases where 
the Justice Department felt there should have been a greater remedy and 
there should have been greater sentencing. But they are not in large 
measure cases where State refused or failed to prosecute the 
perpetrators of these horrendous crimes.
  The fact is, there are not a lot of cases that can be produced, and 
the Justice Department has not been able to produce them. I don't 
disagree that hate crimes are occurring and we should stamp them out, 
but they are being prosecuted by State and local officials to the 
fullest extent of the law. The Federal Government may disagree on how 
they prosecute sometimes, but the fact is, they are being prosecuted. 
No one has shown, certainly not the Justice Department, that these 
truly horrific crimes are not being prosecuted, let alone on a large 
scale. The fact is, they are being prosecuted.
  The cases identified by the Justice Department, a handful of cases, 
were in large measure cases where State officials, investigators, and 
prosecutors got verdicts and sentences. In other words, they were 
brought and verdicts and sentences were obtained. The Federal 
Government would have tried the cases differently or might have sought 
a higher or more harsh sentence. But they are not cases where the State 
refused to prosecute a hate crime.
  My colleague is right: We should do everything in our power to stop 
hate crimes in our society. But no one to this date has been able to 
show that there is a widespread, endemic failure at the State level to 
prosecute these crimes. There is no real evidence that the States are 
being slovenly in their duties. That is one reason why I think it is 
very important that we objectively analyze these matters. We will have 
more time to debate this, hopefully a little more time tomorrow.
  Finally, when Mr. Holder, the Deputy Attorney General, appeared 
before the committee, he could not cite one case, not a single case. 
After a month of research, the Justice Department came up with a 
handful of cases. That was it. Not because they weren't prosecuted at 
the State level, they were. They just differed with the way they were 
prosecuted. That is not good enough. These are some of the things that 
bother me.
  I am willing to work with the distinguished Senator from 
Massachusetts and the distinguished Senator from Oregon and others who 
want to do something. If the amendment I am offering is not good 
enough, I am willing to work to see if we can find something that will 
bring us together and do a better job, certainly, to stamp out any type 
of hate criminal activity. But I am very loathe to federalize all 
crimes so that the Federal Government can second-guess State and local 
prosecutors every time a criminal activity occurs. I think one could 
say in many respects all crimes are hate crimes, even though they are 
not categorized as such now. They are prosecuted, and that is the 
important thing.
  Mr. President, I will ask unanimous consent, unless there is anyone 
else who desires to speak.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, as I mentioned, the cases were provided 
by the Justice Department.
  Let me give you one case, U.S. v. Kila, 1994, a Federal jury in Fort 
Worth, Texas acquitted three white supremacists of Federal civil rights 
charges arising from unprovoked assaults upon African Americans, 
including one incident where the defendants knocked a man unconscious 
as he stood near a bus stop. For several hours, the defendants walked 
throughout the town accosting every African American they met, ordering 
them to leave whatever place or area they were in. Some of these 
encounters consisted of verbal harassment; in others, Black victims 
were shoved on the streets, their hats knocked off. Throughout their 
movements through the city, the subjects were using racial epithets and 
talking about white supremacy.
  The subjects' parade of racial hate erupted into serious violence 
with the assault on Ali--that is the name of the individual--at the bus 
stop, an assault which knocked him unconscious. According to witnesses, 
Ali was punched in the face after he fell to the ground, and kicked in 
the head. He was transported by ambulance to the hospital, having 
sustained head injuries. He did not have medical insurance. When the 
doctors asked him to remain for further tests, he left against their 
wishes.
  The Federal Government became involved in the case when State 
officials went to the U.S. Attorney's Office asking for Federal 
assistance. The State could only proceed on misdemeanors, and in their 
judgment, the conduct warranted felony treatment, treatment available 
under Federal law. Some of the jurors revealed after the trial that 
although the assaults were clearly motivated by racial animus, there 
was no apparent intent to deprive the victims of the right to 
participate in any federally protected activity.
  It is this federally protected activity barrier under current law 
that is unduly restrictive, and must be amended.
  The Government's proof that the defendants went out looking for 
African Americans to assault was insufficient to satisfy the statutory 
requirements and effectively the case was dropped.
  I could go back as far as 1982. Maybe in some cases defendants get 
tried for a misdemeanor, as they did in a Western State case I 
mentioned previously, but they are not getting prosecuted with the full 
weight of the law. That is what we are talking about. In the 1982 case 
that I referred to, two white men chased a man of Asian descent from a 
night club in Detroit and beat him to death. The Department of Justice 
prosecuted the perpetrators under existing hate crimes laws, but both 
defendants were acquitted--despite substantial evidence to establish 
their animus based on the victim's national origin. Although the 
Justice Department had no direct evidence of the basis for the jurors' 
decision, the Government's need to prove the defendants' intent to 
interfere with the victim's engagement in a federally protected right--
the use of a place of public accommodation, was the weak link in the 
prosecution.
  These defendants committed murder on the basis of hate. Do we need 
more

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cases? I am glad to stay here and go through a whole pile of them. 
These are examples of what we are talking about. This is what is taking 
place. The question is whether we are going to do something about it. 
That is the issue that will be presented to this body tomorrow.
  I will take a moment to read into the Record the letter from Judy 
Shepard addressed to the members of the Judiciary Committee:

       Thank you for your hard work and commitment to combating 
     hate violence in America. I appreciate the opportunity to 
     testify before your committee last year. As the mother of a 
     hate crime victim, I applaud your interest in trying to 
     address this serious problem that has torn at the very fabric 
     of our nation. However, I do have concerns with your bill (S. 
     1406) as currently written, and I would like to take this 
     opportunity to discuss them with you.
       As I am sure you remember from our visit last fall, two men 
     murdered my son Matthew in Laramie, Wyoming in October 1998 
     because he was gay. Though your amendment is well 
     intentioned, it fails to address hate crimes based on sexual 
     orientation, nor does it include disability or gender. The 
     time has long passed for halfway measures to address this 
     devastating violence. While I appreciate your efforts, the 
     appropriate and necessary response is the Smith-Kennedy 
     measure (S. 622), and I strongly urge you to support this 
     approach.
       Though forty states and the District of Columbia have 
     enacted hate crime statutes, most states do not provide 
     authority for bias crime prosecutions based on sexual 
     orientation, gender, or disability. Including the District of 
     Columbia, only 22 states now include sexual orientation-based 
     crimes in their hate crime statutes, 21 include coverage of 
     gender-based crimes, and 22 include coverage for disability-
     based crimes.
       There is currently no law that allows federal assistance 
     for localities investigating and prosecuting hate crimes 
     based on sexual orientation. As a result, though Matt's 
     killers were brought to justice, the Laramie law enforcement 
     officials told me, as I know they told you last year, that 
     they were forced to furlough five employees to be able to 
     afford to bring the case. The Smith-Kennedy amendment would 
     add sexual orientation, gender and disability to current law, 
     while your amendment would not. I urge you to support the 
     Smith-Kennedy amendment, which is more comprehensive and 
     inclusive.
       I know that legislation cannot erase the hate or pain or 
     bring back my son, but I believe that passage of this 
     legislation is an essential step in the healing process and 
     will help allow the federal government to assist in the 
     investigation and prosecution of future hate crimes.
       Again, I respect your commitment to making America a more 
     understanding and just country where hate crimes are no 
     longer tolerated. But I urge you to promptly address my 
     concerns that are shared by so many others, so our nation can 
     be safe for all people, including gay people like my son 
     Matthew.
           Sincerely,
                                                     Judy Shepard.

  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I don't mean to prolong this, but in the 
handful of cases they don't like what happened. In that case, I may 
agree with the Senator that there should have been a verdict against 
the defendants, but a jury in the United States found otherwise. That 
doesn't mean we should federalize all hate crimes. That is what I am 
concerned about.
  I will just put forth my offer to work with the Senator to see if we 
can find some way of bringing everybody together in a way that will not 
intrude the Federal Government into all the local and State 
prosecutions in this country, which certainly the Senator's amendment 
would do. That is what I am concerned about. We will chat overnight and 
talk about it and see what we can do.

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