[Congressional Record (Bound Edition), Volume 149 (2003), Part 20]
[Senate]
[Pages 27211-27231]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. CORNYN (for himself and Mr. Lott):
  S. 1820. A bill to authorize the States to implement such mechanisms 
as are necessary to endure the continuity of Congress in the event that 
one-fourth of the members of either the House of Representatives or the 
Senate are killed or incapacitated; to the Committee on Rules and 
Administration.

[[Page 27212]]


  Mr. CORNYN. Mr. President, I rise to say a few words about the 
continuity of Government. More than 2 years since the terrible events 
of September 11, Congress has not taken any steps necessary to protect 
the Nation by ensuring continuity of Government operations should there 
be another attack and the tragic loss of life or disability on the part 
of Members of the United States Congress. The Founders of this country 
rightly required a majority of each House to constitute a quorum to do 
business, to ensure a nationally representative Congress. But the 
Constitution does not provide, I should say, adequate mechanisms to 
assure a continuing, functioning Congress if a majority of the Members 
are incapacitated or killed by a terrorist attack.
  Our current system of providing for the continuity of Government in 
the event of a disaster is simply inadequate to meet the realities of a 
post-9/11 world. As unthinkable as another attack of that magnitude 
might be, we must be ready for the worst.
  In fact, we have a duty as the elected Representatives of our 
respective States to do everything within our power to provide for a 
stable continuance and function of Government, despite all possible 
catastrophes. We must not leave our Nation's citizens without 
representation, without order, and without defense. We simply owe it to 
the American people to ensure that our Government will remain strong 
and stable, even in the face of disaster.
  It is my conviction that this issue deserves more than just token 
attention. It is not something we can or should put off until another 
day. It is urgent and it is a critical element of our ongoing fight 
against terror.
  Today, I have offered a proposal to provide for the continuity of 
congressional operations. In coming weeks, I will submit legislation to 
address the problems of our current system of Presidential succession 
as well.
  Earlier this year, the bipartisan Continuity of Government 
Commission, which was a joint project of the American Enterprise 
Institute and the Brookings Institution, issued a report which 
unanimously recommended a constitutional amendment:

       To allow immediate, temporary appointments to Congress 
     until special elections could be held to fill vacancies or 
     until matters of incapacitation can be resolved.

  Many Members of Congress strongly agree with the recommendation of 
that commission. Some, however, are reluctant to allow for the 
appointment rather than the election of Representatives, no matter how 
dire the emergency. To protect the American people and ensure a 
functioning Congress, we must find a way to bridge the gap on a 
temporary basis. I submit that this must be an emergency measure which 
would allow for the ongoing operation of Government in a catastrophe 
but which would then allow for election in the ordinary course of 
events, after events had been stabilized.
  I have proposed a constitutional amendment that would allow Congress 
to enact laws providing for congressional succession modeled after the 
provision of article II, authorizing Congress to enact laws providing 
for Presidential succession.
  I also propose implementing legislation to authorize each State to 
craft their own mechanisms for filling vacancies in their congressional 
delegations, which is modeled after the 17th amendment. In other words, 
my proposal specifically refrains from choosing sides in this debate, 
as far as whether the temporary emergency measure be by appointment or 
by election, leaving that decision up to the States, following the 
model of the 17th amendment, which of course provides for the election 
or selection of Senators in the event of vacancy. Forty-eight States 
provide for temporary appointment by the Governor, but two States 
provide for special elections. This proposal would give each State the 
option to choose which procedures they deem most advisable. The 
proposed constitutional amendment would simply defer the question to 
Congress, and the implementing legislation would defer the question to 
the States.
  In an age of terrorism and weapons of mass destruction, I believe it 
is high time to address this need that is all that much more apparent 
post-9/11 to ensure the continuity of this body and of the entire 
Congress. In my capacity as chairman of the Constitution Subcommittee 
of the Senate, the Committee of the Judiciary, I plan to convene 
hearings next year so we can debate this proposal as soon as possible.
  I was not in Washington when the attacks came on September 11. Like 
so many other Americans, I was at home in Texas, getting ready to go to 
work when I heard the terrible news, and then was rivetted to the 
events unfolding on television. But I know for many of my friends and 
colleagues who were here on that horrific day, they and we all feel a 
tremendous debt of gratitude to the heroes of flight 93. The brave 
passengers on that airplane did more than just save the lives of their 
fellow citizens. Absent their courageous sacrifice, flight 93 could 
have reached its final destination, perhaps this very building, in an 
attack that could have eliminated an entire branch of government.
  That hallowed ground in Pennsylvania, where flight 93 met its 
ultimate rest, marks a promise left behind by those courageous heroes, 
a promise carried on to their children, to their loved ones, and, 
indeed, to this very Nation.
  It is a promise that says that freedom will not end here in the 
violent acts of evil men. It persists, it endures, and it will not be 
destroyed.
  Even as we dedicate ourselves to the ongoing war on terror at home 
and abroad, even as we hope and pray that the tragedies of September 11 
will never be repeated, we must always remain conscious of our promise 
as Senators, to serve the people of our States and of our Nation, and 
to support and defend the Constitution of the United States. It is not 
every day that you introduce legislation hoping and praying that it 
will never be necessary, but this legislation is, in a very real sense, 
urgent and necessary.
  We must prepare for all contingencies fulfilling our oaths of office 
to ensure that this promise--the promise of a free government, a 
government of laws, not men--shall not perish from the Earth.
  I yield the floor.
                                 ______
                                 
      By Mr. HOLLINGS (for himself, Mr. Inouye, Mr. Rockefeller, Mr. 
        Kerry, Mr. Breaux, Mr. Dorgan, and Mr. Lautenberg):
  S. 1821. A bill to establish a National Space Commission on 
activities of the United States related to the future of space; to the 
Committee on Commerce, Science, and Transportation.
  Mr. HOLLINGS. Mr. President, we have 17 dead astronauts on our 
plate--3 from Apollo I, all preventable; 7 from the Challenger, all 
preventable; and 7 from the Columbia, all preventable.
  What we are trying to do on behalf of myself and these several other 
Senators is get to a good healthy debate on the future of space in the 
United States and, more particularly, on correcting the safety 
features. There is a culture there that prevents safety from being 
adhered to, and, more than anything else, NASA is broke.
  What is not understood is that at the present time we are going in 
all directions. It is like the Navy during World War II: When in 
danger, when in doubt, run in circles, scream and shout.
  We here are saying we ought to take the orbital space station and 
accelerate it. Others on the other side say no, that is should be 
abolished. Some say we ought to go to Mars, and others say what we 
really need is to hire more expert personnel and bring them in. No one 
is going to leave their job and come work for the NASA endeavor at this 
particular time until we get a mixture and a program and a policy. That 
has to come from the President of the United States.
  I introduce the National Space Commission Act to address the range of 
issues that the Columbia Accident Investigation Board--CAIB--identified 
with the National Aeronautics and Space Administration--NASA--and our 
space program in general, following the tragic loss of the Columbia 
Space Shuttle and its crew of seven astronauts. This bill authorizes 
the creation of a National Space Commission appointed by the President, 
to ensure that the

[[Page 27213]]

safety reforms and recommendations of the Columbia investigation board 
are fully implemented by NASA. The commission will review and make 
recommendations regarding NASA's return-to-flight proposals and 
institutional changes that NASA will need to make to improve safety in 
the agency and to improve safety of the space shuttle, and other 
actions to assure future safe transportation to space and to the 
International Space Station. The commission will also look at the 
broader question of how the United States is organized for the safety 
of space flight across civilian, military and commercial sectors. It 
will begin to build a consensus on a future vision of space exploration 
that I hope will rekindle enthusiasm for our space program and generate 
the necessary support in the Congress and the administration for these 
endeavors.
  The Columbia Accident Investigation Board shone a laser-sharp 
spotlight upon NASA and its program of human space exploration. Their 
pain-staking work to determine the cause of the loss of the Space 
Shuttle Columbia provides the context and justification for a new 
national agenda for space, a turning point in the history of space. 
Though the board stopped short of laying out this new future, its clear 
expectation is that the President and Congress should take up where the 
board left off.

       The U.S. civilian space effort has moved forward for more 
     than 30 years without a guiding vision, and none seems 
     imminent . . . Recommending the content of this debate goes 
     well beyond the Board's mandate, but we believe that the 
     White House, Congress, and NASA should honor the memory of 
     Columbia's crew by reflecting on the nation's future in space 
     and the role of new space transportation capabilities in 
     enabling whatever space goals the nation chooses to pursue.
     Columbia Accident Investigation Board Report, Volume I, 
     August 2003, p. 210

  The legislation I am introducing today, the National Space Commission 
Act, is designed to respond to this challenge. It is a complex 
challenge, and a complex undertaking, that now lies before the Congress 
and the Nation. My bill is not intended to supplant, nor substitute 
for, the President's desire to set a new goal in place for the Human 
Space Flight Program. But as we have seen in the board's report, merely 
setting a far-reaching goal into place for NASA and for the Nation is 
not enough. It will not resolve the many complex issues raised by 
Admiral Harold Gehman and the Columbia Accident Investigation Board. 
No, this report, and these challenges, run deeper than a rousing call 
for future missions to Mars on the Earth's Moon can resolve. As Admiral 
Gehman said last week in testimony before the Senate Commerce, Science, 
and Transportation Committee:

       In the course of (our) study, we became convinced how 
     difficult it is to get into and out of low Earth orbit. It is 
     extraordinarily dangerous and very difficult to do . . . We 
     have to do it more safely than 49 out of 50 times, that's not 
     good enough . . . No matter what your vision is for human 
     space flight, whether it's Mars or the L2 or the Moon or 
     whatever it is, it starts in low Earth orbit . . . We need 
     some leadership to say, ``Just getting into and out of low 
     Earth orbit is a goal worthy of itself, without killing a lot 
     of people.'' And that's hard to argue, because it isn't very 
     jazzy.
     Hearing on NASA's Future, October 29, 2003

  Since the inception of the human space flight program, seventeen 
astronauts have lost their lives and all were avoidable. In its 
investigative work, the Columbia Accident Investigation Board reached 
several fundamental conclusions that went beyond the specific technical 
and physical causes of the loss of Columbia. The Columbia Board found 
basic flaws in how NASA managers behaved, the belief system that lay 
behind NASA attitudes and behavior, and NASA's understanding of basic 
technical and organizational requirements of safety.

       The attitudes and decision-making of Shuttle Program 
     managers and engineers during the events leading up to this 
     accident were clearly overconfident and often bureaucratic in 
     nature.
     Columbia Accident Investigation Board Report, Volume I, 
     August 2003, p. 177

       NASA's bureaucratic culture kept important information from 
     reaching engineers and managers alike. The same NASA whose 
     engineers showed initiative and a solid working knowledge of 
     how to get things done fast had a managerial culture with an 
     allegiance to bureaucracy and cost-efficiency that squelched 
     the engineers' efforts. When it came to NASA managers' own 
     actions, however, a different set of rules prevailed. The 
     Board found that Mission Management Team decision-making 
     operated outside the rules even as it held its engineers to a 
     stifling protocol . . .
       Each decision, taken by itself, seemed correct, routine, 
     and indeed, insignificant and unremarkable. Yet, in 
     retrospect, the cumulative effect was stunning.
     Ibid, p. 202-203

  Most troubling to the Board was the fact that these NASA tendencies 
were not new but existed in full force at the time of both the 
Challenger and the Columbia Shuttle accidents.

       The (Rogers) Commission found that NASA's safety system had 
     been silent . . . (denoted by) a lack of problem reporting 
     requirements, inadequate trend analysis, misrepresentation of 
     criticality, and lack of involvement in critical discussions 
     . . .
       By the eve of the Columbia accident, institutional 
     practices that were in effect at the time of the Challenger 
     accident--such as inadequate concern over deviations from 
     expected performance, a silent safety program, and schedule 
     pressure--had returned to NASA.
     Ibid, p. 100-101

  This ``echo'' between the events eighteen years ago and the present 
made the loss of Columbia and its explanation all the more confounding, 
because so many who reviewed the agency, its practices, and its culture 
had sounded an alarm. The fact that these NASA behaviors and beliefs 
were so enduring that they persisted beyond the stunning loss of the 
Challenger and her crew was all the more startling to the Columbia 
Board. So startling, that the Board found it necessary to offer a blunt 
and chilling assessment.

       If these persistent, systemic flaws are not resolved, the 
     scene is set for another accident.
     Ibid, p. 195

  The Columbia Accident Investigation Board also found that it was not 
only NASA that was at fault for the loss of Columbia. Rather, the Board 
found that the weaknesses at NASA were just as much a result of the 
Nation's neglect of its human space flight program.

       Post-Challenger policy decisions made by the White House, 
     Congress, and NASA leadership resulted in the agency 
     reproducing many of the failings identified by the Rogers 
     Commission. Policy constraints affected the Shuttle Program's 
     organization culture, its structure, and the structure of its 
     safety system.
     Ibid, p. 197

  The impact of this neglect extended beyond NASA's organizational 
responses, encompassing broad aspects of planning for NASA's future 
missions and the development of its technology.

       There (has been a) lack, over the past three decades, of 
     any national mandate providing NASA a compelling mission 
     requiring human presence in space . . . (and a) lack of 
     sustained government commitment over the past decade to 
     improving U.S. access to space by developing a second-
     generation space transportation system.
     Ibid, p. 209

       It is the view of the Board that previous attempts to 
     develop a replacement vehicle for the aging Shuttle represent 
     a failure of national leadership.
     Ibid, p. 211

  The bill I am introducing today establishes a permanent National 
Space Commission to oversee the nation's current and future development 
and use of space. The commission is established with 12 members, 
appointed by the President and confirmed by the Senate. Commission 
members will be leaders chosen from industry, academia, and other 
professions who have a profound expertise in space flight and safety 
and have worn the mantle of responsibility and challenge in the 
development and use of space.
  The Commission will be independent of NASA and is authorized to hire 
a staff to develop the engineering and technical expertise to carry out 
its work. It will begin its work looking at some of our most vexing 
current problems raised by the Columbia Board's report and provide the 
necessary oversight to ensure that the Board's recommendations are 
implemented in the following areas: (1) the return-to-flight of the 
Space Shuttle and return to assembling the International Space Station, 
(2) replacement of the Space Shuttle, and (3) changes to the culture of 
NASA. We specify a number of detailed questions, criteria, and concerns

[[Page 27214]]

that the Commission should take up in laying out a near-term path 
forward for NASA's Human Space Flight program. In making its 
recommendations, the Commission is directed to consider the safety and 
dignity of human life as its highest priority.
  This specific aspect of the bill is a special clause in my mind, one 
that is not subject redaction--the United States space flight program 
must, above all, be an American approach to the future of space flight 
and, as such, must place the dignity and preservation of human life 
above all other considerations. This assertion is not meant as an 
accusation or indictment of NASA--Admiral Gehman made it clear that the 
fault for the loss of Columbia rests with us all, impressed as we all 
were with space flight and our accomplishments, and naive about its 
risks and challenges.

       If Shuttle operations came to be viewed as routine, it was, 
     at least in part, thanks to the skill and dedication of those 
     involved in the program. They have made it look easy, though 
     in fact it never was. The Board urges NASA leadership, the 
     architects of U.S. space policy, and the American people to 
     adopt a realistic understanding of the risks and rewards of 
     venturing into space.
     Ibid, p.208

  For never again should we have to read in a formal accident report of 
the United States space program:

       Managers failed to fulfill the implicit contract to do 
     whatever is possible to ensure the safety of the crew.
     Ibid, p.170

  Never again.
  In each of these assessments of current issues in NASA's Human Space 
Flight Program, we intend the commission to provide the President, the 
Congress, and NASA its informed judgment and advice, so that we can 
expeditiously return the program to a condition of stability and adopt 
a NASA culture of safety as soon as possible.
  The second aspect of the bill is to set a long-range view of our 
Nation's participation in and development of space.
  Concurrent with the work on current issues at NASA, but due by late 
2005, are two ground-breaking studies. These studies are intended to go 
beyond defining a destination for humans in space and to address 
broader questions about the goals and methods we use, with a specific 
concern for public and private utilization and investment in space. 
Though we have learned that the economics of space flight should never 
again take precedence over its safety, we also know that, in the past, 
its cost has driven us down pathways that have not resulted in success.

       In all three (Shuttle replacement) projects--National 
     Aerospace Plane, X-33, and X-34--national leaders had set 
     ambitious goals in response to NASA's ambitious proposals. 
     The programs relied on the invention of revolutionary 
     technology, had run into major technical problems, and had 
     been denied the funds needed to overcome these problems--
     assuming they could be solved. NASA had spent nearly 15 years 
     and several billion dollars, and yet had made no meaningful 
     progress toward a Space Shuttle replacement.
     Ibid, p. 111

       Continued U.S. leadership in space is an important national 
     objective. That leadership depends on a willingness to pay 
     the costs of achieving it.
     Ibid, p. 211

  First, the commission is chartered to provide a sweeping assessment 
of the future of space. Included in that assessment is a review of 
United States capabilities, goals, and uses for space, including the 
state of our Nation's investment in launch capabilities, how space 
could benefit State and local governments and regions, and the role of 
non-governmental, private organizations in the promotion of our space 
endeavors. The review will also take up the difficult issues related to 
public and private investment: the role of private institutions in the 
development and use of space and the business conditions they must 
meet; how Federal Government programs in space science, exploration, 
national security, and public safety support or limit the commercial 
development of space; and how space contributes to the terrestrial 
economy of the United States.
  Given the high cost of space, and the even higher costs of space that 
the Nation is certain to experience in the near and long-term future, 
resolution of these questions of private versus public participation 
and promotion of the development of space is a necessary part of the 
examination of possible technological and economic futures for the 
space sector of the economy.
  Second, and most importantly, the National Space Commission Act is 
directed to perform a comprehensive assessment and inventorying of the 
Nation's programs and practices related to the conduct and safety of 
space flight. This study will assess the state of the Nation's 
acceptance, approval, and commercial licensing practices as they relate 
to the conduct of civil, commercial, and military space flight and 
explore how space launch and high-risk space operations are conducted 
across each of these sectors. This study is intended to result in a 
series of recommendations about the future management of space launch 
and high-risk orbital and sub-orbital space operations in order to 
achieve the highest level of safety and management of these risks. To 
those who question the importance of establishing an authority 
independent of NASA to assess these provisions, the Columbia Accident 
Investigation board stated the case most convincingly:

       (NASA) cultural norms tend to be fairly resilient . . . The 
     norms bounce back into shape after being stretched or bent. 
     Beliefs held in common throughout the organization resist 
     alteration.
     Ibid, p. 101

       Within NASA, the cultural impediments to safe and effective 
     Shuttle operations are real and substantial . . . Leadership 
     will have to rid the system of practices and patterns that 
     have been validated simply because they have been around so 
     long . . . These recommendations will be difficult to 
     initiate, and they will encounter some degree of 
     institutional resistance.
     Ibid. p. 209

       NASA's blind spot is it believes it has a strong safety 
     culture . . . Twice in NASA history, the agency embarked on a 
     slippery slope that resulted in catastrophe . . . A safety 
     team must have equal and independent representation so that 
     managers are not again lulled into complacency by shifting 
     definitions of risk.
     Ibid, p. 203

       Since NASA is an independent agency answerable only to the 
     White House and Congress, the ultimate responsibility for 
     enforcement of the recommended corrective actions must reside 
     with those governmental authorities.
     Ibid, p. 209

  The National Space Commission is established on a permanent basis to 
maintain oversight of the implementation of space flight across all 
sectors of industry and government and vigilance in the management of 
safety in all United States high-risk space operations.
  Let me reiterate. Merely announcing a bold new plan to travel to the 
Earth's Moon or to Mars is not sufficient. If the loss of the Space 
Shuttle Columbia merely results in that proposal, we will have failed 
the memory of our brave astronauts who lost their lives aboard both 
Challenger and Columbia. And we will have failed our own future. 
Unfortunately, our current charge is more difficult. We must challenge 
our assumptions, question our decisions and designs, revisit our 
approaches, and rethink our Nation's ambitions and goals for space. We 
must submit ourselves to the discipline to begin anew. The future of 
space and our Nation's reputation that we carry into history rests in 
the balance.
  I ask unanimous consent that the text of the bill and an article from 
the New York Times be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1821

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``National Space Commission 
     Act''.

     SEC. 2. FINDINGS.

       The Congress finds the following:
       (1) Since the enactment of the National Aeronautics and 
     Space Act of 1958, space has become increasingly important 
     for science, public safety, national defense and intelligence 
     gathering, commercial telecommunications and other Earth 
     applications, and the advancement of international relations 
     tied to the use of space for peaceful purposes.
       (2) The recent loss of the Space Shuttle Columbia 
     highlighted the true condition of

[[Page 27215]]

     space flight: that it is highly prone to risk, fundamentally 
     challenges the laws of nature, is extremely unforgiving of 
     lapses in judgment, and demands the utmost consideration of 
     safety and the dignity of human life.
       (3) The Columbia Accident Investigation Board expressed 
     extreme misgivings about the management and technical culture 
     of the National Aeronautics and Space Administration. In 
     addition to prescribing a specific menu of recommendations, 
     the Board expressed concerns that the agency may not be able 
     to achieve its own reform, stating that, ``Based on NASA's 
     history of ignoring external recommendations, or making 
     improvements that atrophy with time, the Board has no 
     confidence that the Space Shuttle can be safely operated for 
     more than a few years based solely on renewed post-accident 
     vigilance''.
       (4) Today, American astronauts and International Partner 
     cosmonauts reside in space with limited means of safe rescue 
     and support. The Nation remains dependent on the Space 
     Shuttle as the sole means of International Space Station 
     assembly and human operation in space for the foreseeable 
     future. And the Nation faces a period of greatly in creased 
     expense merely to sustain current space operations.
       (5) Even if new vehicle technologies were available, it is 
     a matter of public discussion whether the historic ideals and 
     prospects for the human exploration and development of space 
     still guide our national program in space or whether the role 
     and purpose of human presence in space has become ambiguous 
     in light of other potential purposes for and uses of space.
       (6) Meanwhile, our national program in space suffers from 
     an aging space workforce and aging, sometimes dilapidated 
     space facilities and systems, an atrophying of expertise, and 
     a general lack of renewal of purposes, objectives, and 
     methods. Commercial markets requiring space launch that are 
     crucial to establishing the firm economic basis for the 
     development of space and for the commercial development of 
     space technology have not emerged but have withered. Although 
     the use of space for science and national security purposes 
     is expanding, the economic and commercial development of 
     space continues to be fledgling. Although the Nation stands 
     on the doorstep of the permanent human habitation of space, a 
     mature agenda for safe, economic operation in space necessary 
     to broaden the Nation's participation and interest in the 
     peaceful development of space is lacking.
       (7) The Nation would benefit by establishing a permanent 
     National Space Commission to advise the President and 
     Congress on issues related to the reflight and future use of 
     the Space Shuttle and on the possibilities for the future 
     development and use of space, and to recommend measures the 
     Nation should take to secure the safety of future space 
     flight.

     SEC. 3. NATIONAL SPACE COMMISSION.

       (a) Establishment.--There is established a commission to be 
     known as National Space Commission.
       (b) Membership.--
       (1) Appointment.--The Commission shall have 12 Members, who 
     shall be appointed by the President by and with the advice 
     and consent of the Senate.
       (2) Term.--Members of the Commission shall serve for a term 
     of 5 years and shall be eligible for reappointment, except 
     that the members initially appointed shall be appointed for 
     terms of 3 years each.
       (3) Qualifications.--Members shall be selected from among 
     individuals--
       (A) with national reputations in the conduct of space 
     flight and the development of space systems and technology;
       (B) who are representative of the many views about the 
     future of space and the economic and technical prospects for 
     its use and development; and
       (C) who are or have been employed in space-related 
     activities, including--
       (i) leaders of aerospace companies and other industries 
     involved in the development and use of space;
       (ii) professionals who have performed in significant 
     capacities in the management of space programs or ventures; 
     and
       (iii) distinguished members of academia.
       (4) Vacancies.--Any vacancy occurring other than by the 
     expiration of a term shall be filled in a manner that best 
     replaces the qualifications of the person vacating the 
     position, unless a person with different qualifications is to 
     be nominated and appointed for the purpose of changing or re-
     directing the activities or objectives of the Commission.
       (5) Status as special government employees.--Members of the 
     Commission are deemed to be special Government employees (as 
     defined in section 202(a) of title 18, United States Code) 
     without regard to the number of days of service during any 
     365-day period while engaged in the business of the 
     Commission.
       (6) Travel expenses.--Members of the Commission shall be 
     allowed travel expenses, including per diem in lieu of 
     subsistence, at rates authorized for employees of agencies 
     under subchapter I of chapter 57 of title 5, United States 
     Code, while away from their homes or regular places of 
     business.
       (c) Chair.--The President shall designate an individual to 
     serve as Chair of the Commission for a term of 3 years, 
     except that until the Commission has been in operation for 3 
     full years the term of the individual so designated shall be 
     1 year. Any individual designated as chair is eligible for 
     redesignation as chair.
       (d) Meetings--The Commission shall meet at the call of the 
     Chair. A majority of the members shall constitute a quorum, 
     but a lesser number may conduct the business of the 
     Commission.
       (e) Staff.--
       (1) In general.--The Commission shall appoint and fix the 
     compensation (in accordance with the guidelines prescribed by 
     the Administrator of General Services under section 7(d) of 
     the Federal Advisory Committee Act) of staff comprising--
       (A) staff selected by the Chair as permanent staff of the 
     Commission; and
       (B) staff selected by each Member as staff of the Member 
     for the duration of the Member's appointment to the 
     Commission.
       (2) Qualifications.--Staff shall be selected from among 
     employees of business and professional firms in the business 
     of the development of, manufacture and operation for, or use 
     of space, individuals with entrepreneurial experience, 
     employees of research centers and national laboratories, 
     scholars, professionals, and academics whose work and 
     insights are such that their work in support of the 
     Commission will enhance the Nation's ability to guide and 
     direct the space program.
       (3) Detailing of federal employees.--At the request of the 
     Commission, the head of a Federal department or agency may 
     assign an employee to serve as a member of the Commission 
     staff while employed by the United States.
       (4) Experts and consultants.--
       (A) In general.--The Commission may obtain the services of 
     experts and consultants in the private and nonprofit sectors 
     in accordance with section 3109 of title 5, United States 
     Code.
       (B) Available arrangements.--In obtaining any service 
     described in subparagraph (A), the Commission may use any 
     available grant, contract, cooperative agreement, or other 
     arrangement authorized by law.
       (C) Notice.--The Commission shall give public notice of any 
     such grant, contract, cooperative agreement, or other 
     arrangement before making any such grant or executing any 
     such contract, cooperative agreement, or other arrangement.

     SEC. 4. GENERAL DUTIES.

       (a) In General.--The Commission shall--
       (1) provide advice and counsel to the President and the 
     Congress of the United States on matters related to the 
     future development and use of space;
       (2) address questions of special merit posed by the 
     President or by the Congress to be addressed by the 
     Commission,
       (3) conduct studies, assessments, and other methods of 
     evaluation, including market, business, and financial 
     assessments, necessary to reach conclusions and to formulate 
     recommendations about the future of space;
       (4) convene and establish public forums, reviews, and other 
     means of public discourse for purposes of gathering and 
     distributing information,facts, opinions, and data related to 
     the future of space;
       (5) confer With Federal, State, and local governments and 
     regional organizations, United States corporations, 
     laboratories, research centers and universities, and 
     appropriate departments, agencies, and enterprises of other 
     Nations on questions related to the development and use of 
     space;
       (6) make other recommendations as necessary to achieve the 
     expanded development and use of space, including assessments 
     of the status, focus, and effectiveness of government and 
     industry pro grams and efforts designed to achieve that 
     purpose;
       (7) propose and establish a national approach for the 
     safety of space flight in support of commercial, military and 
     civilian space and suborbital space programs, including 
     issues related to the commercial licensing and operation of 
     space vehicles, the regulation, management, and control of 
     space flight parts, components, systems, and facilities, and 
     the training and advancement of government and industry 
     personnel necessary, to achieve safe space flight; and
       (8) advise the President and the Congress on any changes in 
     Federal law or international agreements necessary to achieve 
     the recommendations, solutions, and outcomes proposed by the 
     Commission.
       (b) Methods of Space Flight.--In carrying out its duties 
     under subsection (a), the Commission shall consider the 
     potential for the future use of space by human and robotic 
     means and the likely contribution of both to the long-term 
     development and use of space.
       (c) Disclaimer.--Nothing in this Act is intended--
       (1) to prejudice the disposition, or outcome of decisions 
     related to the ownership or institutional operation and 
     support, of Federal laboratories, centers, or bases; or
       (2) to preclude the use of special classes, de signs, or 
     certification rules and standards peculiar to the use of 
     military space vehicles.

     SEC. 5. SPECIFIC REPORTS AND ADVISORY ACTIVITIES.

       (a) Space Shuttle; International Space Station.--
       (1) In general.--The Commission shall evaluate the 
     findings, recommendations, and

[[Page 27216]]

     observations of the Columbia Accident Investigation Board and 
     the activities of the National Aeronautics and Space 
     Administration to respond to the Board's report, in eluding 
     issues related to the re-flight of the Space Shuttle, 
     alternative near-term crewed vehicle options, and changes in 
     the agency's organization, management, technical 
     administration, and conduct of safety, operations and 
     engineering, and training, and other changes intended to 
     ensure the safety of space operations and the dignity of 
     human life.
       (2) Criteria for return to operations.--The Commission 
     shall make recommendations to the President and the Congress 
     concerning--
       (A) any additional criteria and conditions that the 
     Commission considers critical for the safe operation of the 
     Space Shuttle that war rant demonstration during the initial 
     and subsequent return-to-flight test and demonstration 
     missions; and
       (B) longer-term criteria and conditions necessary for a 
     return to sustained operation and management of human space 
     flight following the initial Space Shuttle re-flight and test 
     and demonstration flights.
       (3) Evaluation of human space flight management reforms.-- 
     Commission shall assess--
       (A) the capability of the National Aeronautic and Space 
     Administration to resolve all findings, recommendations, and 
     observations of the Columbia Accident Investigation Board to 
     the Commission's satisfaction, including management and 
     technical reforms necessary to achieve safe space flight;
       (B) the relationship of the National Aeronautic and Space 
     Administration to its Industrial, scientific, and commercial 
     partners and the proper role of each party in the selection, 
     design, development, and operation of high risk space flight 
     systems; and
       (C) additional workforce, organization, and management 
     reforms that may be required to enhance further the ability 
     of the National Aeronautic and Space Administration, its 
     partners, or other agencies of the United States to achieve 
     safety of human space flight.
       (4) Consideration of the international space station and 
     alternative space transportation solutions.--In making its 
     evaluation and recommendations under this subsection the 
     Commission shall consider--
       (A) the condition of the International
       Space Station along with the further risk to or security of 
     human life resulting from any decision to accelerate or slow 
     the return to assembly and operation of the International 
     Space Station and sustained human space flight operations;
       (B) alternative space vehicle and crewing options that meet 
     the highest achievable stand and of crew safety and security 
     on-board the international Space Station in the shortest 
     amount of time;
       (C) the modification or purchase of existing space vehicles 
     necessary to achieve a higher standard of heightened crew 
     safety or enhanced ability to conduct safe human space flight 
     operations;
       (D) the acquisition or development of crewed vehicles on a 
     schedule significantly more aggressive that the proposed 
     schedule of the Orbital Space Plane; and
       (E) the contribution of any proposed vehicle options to 
     purposes in space other than servicing and support of the 
     International Space Station.
       (4) Reports to congress.--
       (A) Alternative means of crew transfer.--Within 3 months 
     after the full Commission has taken office, it shall report 
     to the President and the Congress on crewing options for the 
     Space Shuttle during the period of assembly of the 
     International Space Station, alternative interim use of 
     available space vehicles for these operations, and 
     alternative or accelerated United States crewed vehicle 
     modification or development options in lieu of or in addition 
     to the proposed Orbital Space Plane program.
       (B) Space shuttle return-to-flight.--
       (i) Preflight advice.--On a continuous basis from the 
     initial return-to-flight mission of the Space Shuttle through 
     the final such mission, the Commission shall advise the 
     Administrator, the President, and the Congress of the results 
     of its review and assessment of the Space Shuttle return-to-
     flight, including any additional criteria the Commission 
     establishes for return-to-flight missions.
       (ii) Final preflight recommendation.--Within 60 days before 
     the planned date for the first Space Shuttle return-to-
     flight, and within 30 days before each subsequent test or 
     demonstration flight of the Space Shuttle, the Commission 
     shall transmit its final recommendations for return-to-flight 
     to the Administrator, the President, and the Congress. In 
     addition, the Commission shall attach to each such 
     transmittal to the President and the Congress a record of its 
     recommendations to the Administrator and a description of the 
     Administrator's responses and actions in response to those 
     recommendations.
       (iii) Post-resumption analysis.--Within 6 months after the 
     first successful return-to-flight mission of the Space 
     Shuttle, the Commission shall submit a report to the 
     President and the Congress summarizing the Commission's and 
     the National Aeronautics and Space Administration's work on 
     the re-flight of the Space Shuttle and addressing further 
     changes that should be accomplished to ensure safe continuous 
     operation of the Space Shuttle and the International Space 
     Station. The report shall address the status of 
     organizational, management, and technical changes in the 
     National Aeronautics and Space Administration, their 
     effectiveness in resolving concerns about the safety, 
     operations, engineering, and management cultures of the 
     agency, and their effectiveness in resolving concerns and 
     risks associated with a return-to-normal operations for the 
     Space Shuttle and the International Space Station.
       (b) Future Launch Technology and the Development of and 
     Uses for Space.--
       (1) In general.--The Commission shall--
       (A) advise the President and the Congress on the state of 
     the Nation's investment in and development of advanced space 
     launch technology, including advanced space lift propulsion 
     systems;
       (B) make recommendations on steps necessary to accelerate 
     the development of technologies and capabilities to advance 
     the economy of space flight and the prospect for the expanded 
     use of space for economic, commercial, and industrial 
     purposes;
       (C) assess how State and local governments and regional 
     authorities might benefit from the expanded use of space;
       (D) evaluate the ability of the Nation's private research 
     centers, laboratories, and private and public universities to 
     contribute to and benefit from the expanded development and 
     use of space;
       (E) assess the future use of space for exploration, 
     science, research, national security, and public safety 
     ensure that such uses are consistent with the long-term 
     economic development of space, and are designed to enhance 
     the industrial and commercial capabilities of space flight 
     whenever possible; and
       (F) make detailed recommendations related to the use of 
     budget, regulatory, and licensing powers and authorities of 
     the United States to enhance, to better plan for, and to 
     coordinate the activities of the United States related to the 
     development and use of space.
       (2) Report to congress.--By September 1, 2005 the 
     Commission shall transmit to the Congress a report that--
       (A) summarizes its recommendations for future national 
     goals for the development and use of space;
       (B) provides a blueprint of capabilities that could and 
     should be achieved by the end of the present decade, by 2015, 
     and by 2025 in order to better position the Nation to achieve 
     those goals; and
       (C) addresses potential markets and uses for space and the 
     means of financing the development and use of space.
       (c) National Approach to the Safety of Space Flight.--
       (1) In general.--The Commission shall conduct a review and 
     assessment of the Nation's program of safety in space flight 
     as conducted by the United States, the commercial space 
     industry, and other private parties.
       (2) Contents.--The review and assessment shall--
       (A) assess the current use of inspection, acceptance, and 
     commercial licensing to certify the safety, flight 
     worthiness, and flight readiness of space vehicles and their 
     associated launch and ground control facilities;
       (B) evaluate and compare current space launch and flight 
     operations practices, including the promulgation of flight 
     rules and over-flight plans of populated areas;
       (C) assess and compare how Federal agencies, private launch 
     operators, and commercial industry make determinations of 
     flight worthiness and ground and flight system readiness, 
     including the use of tests, analyses, demonstrations, and 
     other means whereby the operational readiness of space 
     vehicles, crew, and ground systems are verified to be ready 
     for launch and operation;
       (D) address current government and industry practices for 
     conducting and coordinating design and decision rules within 
     and among space management agencies, firms, organizations, 
     and ground control and flight operations management centers 
     before, during, and after flight; and
       (E) assess practices and conditions related to the 
     acquisition and sale of parts, components, systems, services, 
     and capabilities among Industry prime and supplier 
     contractors and the Federal Government, including 
     outsourcing, sole source, and other competitive and non-
     competitive forms of relationship, and their impact upon 
     safety.
       (3) Report to congress.--No later than September 1, 2005, 
     the Commission shall transmit to the Congress a report that--
       (A) summarizes the results of the review and assessment 
     required by paragraph (1); and
       (B) makes recommendations for a National program of--
       (i) management of safe commercial, civil, and military 
     space flight; and
       (ii) regulation of the design, certification, or licensing 
     of space flight systems for launch and landing over the 
     United States, or for orbital or suborbital operation using 
     crew or passengers aboard commercial or civil vehicles 
     licensed or operated by the United States.
       (c) Annual Report.--In addition to other reports required 
     or permitted under this Act,

[[Page 27217]]

     within 60 days after the end of each fiscal year, the 
     Commission shall provide an annual report to the Congress 
     that--
       (1) summarizes its activities, reports, findings, 
     conclusions, and recommendations during that fiscal year; and
       (2) contains a year-end financial statement of the 
     Commission's operations, including a detailed statement of 
     the purposes for which funds have been expended by the 
     Commission.
       (d) Other Reports.--The Commission may also report to the 
     President and the Congress on other space related questions 
     and issues raised by the Congress, the President, or on its 
     own initiative.

     SEC. 6. DEFINITIONS.

       In this Act:
       (1) Administrator.--The term ``Administrator'' means the 
     Administrator of the National Aeronautics and Space 
     Administration.
       (2) Commission.--The term ``Commission'' means the National 
     Space Commission established by section 3.

     SEC. 7. AUTHORIZATION OF APPROPRIATIONS.

       There are authorized to be appropriated to the Commission 
     such sums as may be necessary to carry out its duties under 
     this Act.
                                  ____


                [From the New York Times, Nov. 5, 2003]

          NASA Supporters Seek National Debate on Space Goals

                          (By Matthew L. Wald)

       Washington, Nov. 4--After the shuttle Columbia 
     disintegrated on Feb. 1, many supporters of NASA expected a 
     renewed national debate on the goals of the space program. 
     But nine months later, supporters of space exploration and 
     the science program say that the subject appears to be in 
     danger of slipping below the national horizon.
       ``There have been fits and starts of a national debate,'' 
     said Senator Ernest F. Hollings of South Carolina, the 
     ranking Democrat on the Commerce Committee, which has 
     jurisdiction over NASA.
       Mr. Hollings plans to introduce a bill on Wednesday to 
     create a national space commission to oversee NASA's progress 
     in fixing the hardware and the ``broken safety culture'' 
     identified in the Columbia investigation, and to help set 
     goals.
       Senator Hollings' bill, which has six sponsors, all 
     Democrats, joins a varied flock of measures on the House 
     side, none likely to see major action this year.
       ``It's not commanding anywhere near the level of attention 
     that the Challenger did,'' said a House staff aide who was on 
     Capitol Hill at the time of that accident, in 1986.
       The war in Iraq helps explain the difference, the aide 
     added, but beyond that, ``space is more humdrum now,'' even 
     when astronauts die.
       Sean O'Keefe, the NASA administrator, said in testimony 
     last week that the Bush administration would produce a new 
     plan for space, including a replacement vehicle for the 
     shuttle, now more than 20 years old. He said Congress should 
     wait until that plan is released, but he refused to predict 
     how long that would take.
       The leisurely pace contrasts with the push by the Columbia 
     Accident Investigation Board to complete its work over the 
     summer so members of Congress could digest the report during 
     their recess and be ready for a vigorous debate when they 
     returned.
       The most prominent feature of the debate so far has been a 
     skirmish between NASA and the chairman of the House Science 
     Committee and the ranking Democrat on the panel. The two 
     lawmakers, Representatives Sherwood Boehlert, Republican of 
     New York, and Ralph M. Hall, Democrat of Texas, suggested 
     that NASA hold off on development of an orbital space plane, 
     a crew-transport vehicle that could replace the shuttle, 
     until an ``overall vision for the human spaceflight program'' 
     emerges.
       Mr. Boehlert said at a hearing on Oct. 16 that NASA would 
     be successful ``only if it's pursuing a clear and broad 
     national consensus with sustained and adequate funding,'' and 
     he added, ``That hasn't been the case in three decades.''
       Mr. O'Keefe, responding to the letter on the orbital space 
     plane, argued that the project was still at a conceptual 
     stage and should proceed.
       Beyond establishing a commission to oversee NASA's 
     progress, the Senate bill to be introduced on Wednesday seeks 
     ``to address broader questions about the goals and methods we 
     use,'' with specific concern for public and private 
     investment in spaceflight and use of it. In remarks prepared 
     for delivery on the Senate floor on Wednesday, Mr. Hollings 
     argues that while economics of spaceflight should not take 
     precedence over safety, ``we also know that, in the past, its 
     cost has driven us down pathways that have not resulted in 
     success.''
       On the House side, Representative Bart Gordon, Democrat of 
     Tennessee, introduced a bill that would have future accidents 
     investigated by a presidential commission independent of 
     NASA. The Columbia Accident Investigation Board began under a 
     charter written after the Challenger accident, with members 
     selected according to positions they held in the Air Force, 
     Federal Aviation Administration and other agencies.
       Mr. Gordon's bill was approved by a subcommittee but has 
     gone no further.
       Mr. Hall, the ranking Democrat on the House Science 
     Committee, introduced a bill on Oct. 1, with 24 sponsors, 
     including 3 Republicans, that would have the National Academy 
     of Sciences and the National Academy of Engineering assemble 
     an oversight committee, as was done after the Challenger 
     accident. NASA has generally opposed outside oversight.
       Mr. Hall also introduced an amendment to an appropriations 
     bill that would mandate a $15 million study of shuttle crew 
     escape, to be performed by NASA. The House passed the bill, 
     and it is now in a conference committee.
       Representative Nick Lampson, Democrat of Texas, has 
     introduced a measure that would require NASA to develop 
     reusable spaceships that could sit for long periods balanced 
     between the gravitational pull of Earth and the Sun or the 
     Moon; ships that could reach an asteroid; and, ultimately, 
     ones that could reach Mars. The bill has 24 sponsors but has 
     not yet been taken up in committee.
       Mr. Lampson said in a telephone interview that he was glad 
     that Senator Hollings was focused on the problem, but he 
     added, ``we don't need a commission, we need a commitment for 
     NASA.''
       ``If the goals get set, we will re-energize the academic 
     community, and the space industrial community,'' he said, 
     predicting that missions to Mars would ``do a great deal to 
     move this country forward.''
       Mr. Hollings, in a separate interview, said, ``I want to go 
     to Mars, too, but unless you get the culture changed and 
     fixed, we're not going anywhere.''
                                 ______
                                 
      By Mr. AKAKA (for himself, Mr. Fitzgerald, and Mr. Lieberman):
  S. 1822. A bill to require disclosure of financial relationships 
between brokers and mutual fund companies and of certain brokerage 
commissions paid by mutual fund companies; to the Committee on Banking, 
Housing, and Urban Affairs.
  Mr. AKAKA. Mr. President, I rise today to introduce legislation 
intended to restore public trust in mutual funds, the Mutual Fund 
Transparency Act of 2003. I thank Senator Fitzgerald and Senator 
Lieberman for cosponsoring my bill. I greatly appreciate the efforts of 
Senator Fitzgerald to address this issue. Our Financial Management, 
Budget, and International Security Subcommittee held a very thorough 
hearing on mutual fund trading abuses on Monday. I applaud the efforts 
of Representative Richard Baker for his leadership and his efforts to 
improve mutual fund governance. I also commend the efforts of New York 
Attorney General Eliot Spitzer and the Secretary of Massachusetts 
William Galvin for their efforts to pursue individuals that have harmed 
mutual fund investors.
  Mr. President, 95 million people have placed a significant portion of 
their future financial security into mutual funds. Mutual funds provide 
middle-income Americans, blue and white collar workers and their 
families, with an investment vehicle that offers diversification and 
professional money management. Mutual funds are what average investors 
rely on for retirement, savings for children's college education, or 
other financial goals and dreams.
  My legislation will bring about structural reform of mutual fund 
governance and increase disclosures in order to provide useful and 
relevant information to mutual fund investors. I ask unanimous consent 
that a letter of support for my bill from the Consumer Federation of 
America, Fund Democracy, Consumer Action, U.S. Public Interest Research 
Group, and Consumers Union be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Consumer Federation of America, Fund Democracy, Inc., 
           Consumer Action, U.S. Public Interest Research Group, 
           Consumers Union,
                                                 October 31, 2003.
     Hon. Daniel K. Akaka,
     U.S. Senate, Washington, DC.
       Dear Senator Akaka: We are writing to express our 
     enthusiastic support for your draft legislation to increase 
     the transparency of mutual disclosures and enhance the 
     independence of fund oversight. Over the last two decades, 
     mutual funds have become firmly established as average 
     Americans' investment vehicle of choice, and investors have 
     for the most part benefitted greatly from the ability mutual 
     funds have offered even those of modest means to diversify 
     their portfolios and obtain professional management. However, 
     fund rules in some areas have not kept pace with industry 
     practices,

[[Page 27218]]

     and the recent scandals embroiling the mutual fund industry 
     have raised serious questions about the quality of corporate 
     governance in this industry.
       Given the importance of mutual funds in the financial 
     portfolios of average Americans and the heavy reliance of the 
     least sophisticated investors on these investment vehicles, 
     we applaud your efforts to address key weaknesses in the 
     regulatory structure for mutual funds. Your proposed reforms 
     to improve disclosures about fund costs and strengthen the 
     independence of mutual fund boards, if adopted, should help 
     the fund industry to regain the investor trust that has been 
     the key to its success over the years but has been so 
     severely undermined by recent revelations.
     1. We support requiring disclosure of broker compensation for 
         mutual fund transactions
       The legislation would require disclosure of the 
     compensation brokers receive for selling funds. While funds 
     are currently required to disclose the existence of such 
     payments in fund prospectuses, the actual amount of the 
     broker's compensation for a particular mutual fund 
     transaction does not currently have to be disclosed. This 
     from of compensation creates a conflict of interest between 
     the broker, who may be inclined to recommend the fund that 
     offers him or her the highest compensation, and the investor, 
     whose interest is in obtaining the highest quality fund at 
     the lowest cost. By requiring timely disclosure to investors 
     of the actual dollar amount of these commissions, your bill 
     should help to increase investors' awareness of the existence 
     and extent of this conflict of interest and its potential to 
     induce their broker to place his or her interests ahead of 
     theirs.
       Ample evidence that brokers do not always put investors' 
     interests first can be found in the allegations of improper 
     sale of fund B shares at some fund companies. In addition, a 
     recent Consumer Federation of America-Fund Democracy study of 
     excess costs paid by investors in S&P 500 Index funds found 
     that many of the funds with unjustifiably high expense ratios 
     were funds that brokers sold on commission. Since costs 
     subtract directly from fund performance, investors in these 
     funds end up paying a premium for sub-par performance. Had 
     these investors been made aware of the often substantial 
     payments their brokers received on the sale, they might have 
     been encouraged to look more closely at whether the fund or 
     share type being sold was really the best for them.
     2. We support requiring improved disclosure of portfolio 
         transaction costs
       The legislation would also require mutual funds to 
     disclosure in the prospectus the brokerage commissions they 
     pay on portfolio transactions and to include this cost in the 
     fund expense ratio. Portfolio transaction costs vary greatly 
     among funds and can be the single largest fund expense, 
     exceeding all other fund expenses combined. These costs are 
     not, however, currently included in fee information provided 
     in the prospectus. The only public disclosure of portfolio 
     transaction costs is a statement of the dollar amount of the 
     fund's commissions in the Statement of Additional 
     Information, a document never reviewed by the vast majority 
     of mutual fund investors.
       Fuller disclosure of portfolio transaction costs would help 
     investors to hold fund advisers accountable for their trading 
     practices. It also would provide a collateral benefit in 
     connection with funds' soft dollar practices. Commissions 
     paid by funds typically pay for both execution and research 
     services. Since soft dollars pay for research that fund 
     advisers would otherwise have to pay for themselves, this 
     creates a significant conflict of interest for fund advisers. 
     Requiring brokerage commission cost disclosure would subject 
     these fund expenditures, including expenditures on soft 
     dollar services, to market forces, and in the process provide 
     a practical solution to the problem of regulating soft dollar 
     practices.
     3. We support reforms to enhance the independence of mutual 
         fund boards.
       The legislation contains a number of provisions to 
     strengthen the independence of fund boards. It would require 
     that 75 percent of board members, including the board 
     chairman, be independent. It would substantially strengthen 
     the definition of independent director by excluding 
     individuals who had served as directors, officers, or 
     employees within the past 10 years of the fund's manager, 
     principal underwriter, or other significant service provider. 
     It would delegate selection of new independent directors 
     exclusively to existing independent directors. And it would 
     establish qualification standards for board members that must 
     be publicly disclosed.
       The recent investigation into market timing and late 
     trading at certain mutual funds has raised serious questions 
     about the quality of oversight provided by fund boards. Of 
     particular concern are the allegations that some Putnam fund 
     managers and the CEO of the Strong fund family were timing 
     their own funds--essentially picking the pockets of their own 
     shareholders to the tune of several hundred thousand dollars 
     in each instance. This is an unconscionable violation of 
     these fund managers' fiduciary duty to their shareholders. It 
     is also strong evidence of the need to end the domination of 
     fund boards by the fund manager. Increasing the 
     representation of independent members on boards, making sure 
     that independent members are truly independent, and ensuring 
     that the boards are led by independent members should go a 
     long way toward advancing that goal.
     4. Other bill provisions would also benefit investors
       The recent mutual fund scandals are not just a corporate 
     governance failure--though they certainly are that. They are 
     also a regulatory failure. The fact is that the SEC was 
     apparently aware of problems related to market timing for 
     years and had drifted along without doing anything about it. 
     Given the lack of clear direction from the SEC, it is hardly 
     surprising that fund boards failed to closely supervise the 
     trading practices at funds they oversaw. Your bill offers an 
     innovative approach to enhancing the quality of fund board 
     oversight. It would direct the SEC to study the benefits of 
     creating a Mutual Fund Oversight Board, generally modeled 
     after the Public Company Accounting Oversight Board, with 
     authority to examine and bring enforcement actions against 
     mutual fund boards of directors. Under this approach, the SEC 
     would retain responsibility for direct oversight of 
     investment adviser, but that responsibility would be 
     supplemented by the new independent agency's supervision of 
     fund boards. We believe this approach is well worth studying.
       We also support the bill's provisions requiring disclosure 
     of portfolio managers' compensation and ownership of fund 
     shares (something that might have discouraged market timing 
     by fund managers), as well as its proposed GAO study of 
     mutual fund advertising practices and SEC study of financial 
     literacy. Such a study should look at innovative disclosure 
     methods designed to reach unsophisticated investors--those 
     who fail to take costs into account, for example--with 
     information they understand and act on.


                               conclusion

       Recent events have provided a rude awakening to those who 
     have long trusted mutual funds as the one place where the 
     needs of average investors are generally well protected. Your 
     bill offers a reasonable approach--one that recognizes the 
     continued benefits of mutual fund investing for millions of 
     Americans but also recognizes that reforms are needed to 
     restore investor confidence in the integrity of this 
     industry. Please let us know what we can do to assist in its 
     passage.
           Respectfully submitted,
     Barbara Roper,
       Director of Investor Protection, Consumer Federation of 
     America.
     Mercer Bullard,
       Executive Director, Fund Democracy.
     Kenneth McEldowney,
       Executive Director, Consumer Action.
     Edmund Mierzwinski,
       Consumer Program Director, U.S. Public Interest Research 
     Group.
     Sally Greenberg,
       Senior Counsel, Consumers Union.

  Mr. AKAKA. I also ask unanimous consent that a letter of support for 
the legislation from AARP be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                         AARP,

                                 Washington, DC, November 4, 2003.
     Hon. Daniel K. Akaka,
     U.S. Senate,
     Washington, DC.
       Dear Senator Akaka: AARP supports your effort to improve 
     investor awareness of mutual fund costs, and to improve the 
     independent oversight and governance functions of fund boards 
     of directors. The legislation you have introduced, ``the 
     Mutual Fund Transparency Act of 2003,'' would put into effect 
     an overdue upgrade in investor protection for the ordinary 
     saver-investor. These reforms are already warranted by the 
     continuing evolution in market practices and the growth in 
     market choices. They are now more urgently required.
       Mounting allegations of illegal--at best unethical--
     practices by mutual fund management companies, executives and 
     brokers highlight the need for prompt action. We are 
     concerned that lay investor confidence in the mutual fund 
     industry not be allowed to deteriorate further--specifically 
     in its ability to reliably provide fairly priced benefits of 
     investment diversification and expert management.
       With regard to initiatives designed to increase fund 
     transparency, we strongly support the bill's provisions to 
     require that: fees be disclosed in dollar amounts; fee 
     disclosures incorporate all fees, including portfolio 
     transaction costs; fee disclosures identify all distribution 
     expenses; and compensation paid to portfolio managers and 
     retail brokers be fully disclosed.

[[Page 27219]]

       While greater transparency is essential to fair competition 
     among funds for investors, we believe it does not provide a 
     sufficient check on the cost of fund governance. Mutual funds 
     allow investors to share the costs of professional money 
     managers--who under the 1940 Investment Company Act are 
     called ``advisers.'' However, most funds are not established 
     by investors but rather are incorporated by advisory firms, 
     who then contractually provide research, trading, money 
     management and customer support services, and also have some 
     representation on the fund's board. The advisory firms have 
     their own corporate charters and are accountable to their own 
     boards of directors, posing--as we are seeing--a range of 
     potential conflicts of interest in the costs of services 
     provided to the fund.
       We support the provisions in the proposal to strengthen the 
     role and independence of boards of directors, which should 
     reduce potential conflicts of interest. Specifically, we 
     support the requirement that: a super-majority (i.e., two-
     thirds to three-fourths) of fund board members be 
     independent; the board chairman be selected from among the 
     independent members; and the independent directors be 
     responsible for establishing and disclosing the qualification 
     standards of independence, and for nominating and selecting 
     all subsequent independent board members.
       We also see merit in the bill's requirements for three 
     separate studies of investor financial literacy, the value of 
     creating a mutual fund oversight board, and mutual fund 
     advertising.
       The importance of the mutual fund market as a critical 
     component of the economic security of all Americans--
     especially order persons--should not be underestimated. 
     Similar--although not identical--legislation (H.R. 2420) is 
     pending before the House financial Services Committee. We 
     look forward to working with you and with the other members 
     of the Senate to enact this measured and important piece of 
     investor protection legislation. Please feel free to contact 
     me, or have your staff call Roy Green of our Federal Affair 
     staff at (202) 434-3800, if you have any questions about our 
     views.
           Sincerely,
                                                    David Certner,
                                        Director, Federal Affairs.

  Mr. AKAKA. Mr. President, recent revelations of widespread market-
timing and late-trading abuses demonstrate the failures of mutual fund 
boards of directors to fulfill their fiduciary obligations to 
shareholders. The activities of Canary Capital Partners and Putnam 
Investments are two deeply troubling examples. However, it is likely 
that the trading abuses are much more routine. At our hearing, Mr. 
Stephen Cutler, Director, Division of Enforcement, Securities and 
Exchange Commission, SEC, testified that preliminary results of an SEC 
survey show that about ``50 percent of responding fund groups appear to 
have one or more arrangements with certain shareholders that allow 
these shareholders to engage in market timing.'' This statistic is just 
one example of mutual funds having different sets of rules for large 
and small investors. These differing rules allow the larger investors 
to profit at the expense of average, ordinary investors who are working 
toward their long-term financial goals.
  The abuses that have been brought to our attention make it clear that 
the boards of mutual fund companies are not providing sufficient 
oversight. To be more effective, the boards must be strengthened and 
more independent. Investment company boards should be required to have 
an independent chairman, and independent directors must have a dominant 
presence on the board. My bill strengthens the definition of who is 
considered to be an independent director. It also requires that mutual 
fund company boards have 75 percent of their members considered to be 
independent. To be considered independent, shareholders would have to 
approve them. My legislation also prohibits the board from making 
decisions that require a vote of a non-independent director. In 
addition, a committee of independent members would be responsible for 
nominating members and adopting qualification standards for board 
membership. These steps are necessary to add much needed protections to 
strengthen the ability of mutual fund boards to detect and prevent 
abuses of the trust of shareholders.
  In addition, this bill requires the SEC to develop rules to disclose 
the compensation of individuals employed by the investment advisor of 
the company to manage the portfolio of the company and their ownership 
interest in the company. Consumers deserve to know relevant information 
about the portfolio manager's incentives and whether they are properly 
aligned with those of their shareholders. Again, I am referring to 
ordinary American families patiently working toward their long-term 
financial goals.
  The strengthening of boards to protect shareholders is only one 
important aspect of my bill. My bill will also increase the 
transparency of often complex financial relationships between brokers 
and mutual funds in ways that are meaningful and easy to understand for 
investors.
  Shelf-space payments and revenue-sharing agreements between mutual 
fund companies and brokers present conflicts of interest that must be 
addressed. Brokers also compile preferred lists which highlight certain 
funds, which typically generate more investment than those left off the 
list. It is not clear to investors that the mutual fund company also 
may pay a percentage of sales and/or an annual fee on the fund assets 
held by the broker to obtain a place on the preferred list or to have 
their shares sold by the broker.
  Shelf-space and revenue sharing agreements present risk to investors. 
Brokers have conflicts of interest, some of which are unavoidable, but 
these need to be disclosed to investors. Without such disclosure, 
investors cannot make informed financial decisions. Investors may 
believe that brokers are recommending funds based on the expectation 
for solid returns or low volatility, but the broker's recommendation 
may be influenced by hidden payments.
  The SEC has exempted mutual funds from Rule 10b-10, which requires 
that confirmation notices of securities transactions be sent to 
customers to indicate how the broker was compensated in the trade. 
Mutual funds should be subject to this confirmation notice requirement. 
My legislation will require brokers to disclose in writing, to those 
who purchase mutual fund company shares, the amount of compensation the 
broker will receive due to the transaction, instead of simply providing 
a prospectus. The prospectus fails to include the detailed relevant 
information that investors need to make informed decisions. Mutual fund 
investors deserve to know how their broker is being paid.
  My bill also will inject a measure of reality into the expenses of 
mutual funds. In order to increase the transparency of the actual costs 
of the fund, brokerage commissions must be counted as an expense in 
filings with the SEC and included in the calculation of the expense 
ratio, so that investors will have a more realistic view of the 
expenses of their fund. Consumers often compare the expense ratios of 
funds when making investment decisions. However, the expense ratios 
fail to take into account the costs of commissions in the purchase and 
sale of securities. Therefore, investors are not provided with an 
accurate idea of the expenses involved. Currently, brokerage 
commissions have to be disclosed to the SEC, but not to individual 
investors. Brokerage commissions are only disclosed to the investor 
upon request. My bill puts teeth into brokerage commission disclosure 
provisions and ensures that commissions will be included in a document 
that investors actually have access to and utilize.
  This bill also creates a powerful incentive to reduce the use of soft 
dollars. Soft dollars refer to the bundling of services or products 
into commissions. Mutual fund companies often pay higher commissions in 
order to obtain other products and services, typically research on 
stocks. Soft dollars can be used to lower their expenses by having 
services and products paid for by soft dollars. Purchases using soft 
dollars do not count as expenses and are not calculated into the 
expense ratio. The SEC released a study in September 1998 concluding 
that soft dollars were used to pay for research, salaries, office rent, 
telephone services, legal expenses, and entertainment, among other 
expenses.
  At the hearing, Secretary Galvin called for a prohibition of soft 
dollars. This is a recommendation that needs to be examined. However, 
my bill provides an immediate alternative, which

[[Page 27220]]

is to provide an incentive for funds to limit their use of soft dollars 
by calculating them as expenses. If commissions are disclosed in this 
manner, the use of soft dollars will be reflected in the higher 
commission fees and overall expenses. This will make it easier for 
investors to see the true cost of the fund and compare the expense 
ratios of funds.
  Some may argue that this gives an incomplete picture and fails to 
account for spreads, market impact, and opportunity costs. However, the 
SEC has the authority to address the issue further if it can determine 
an effective way to quantify these additional factors. This bill does 
not impose an additional reporting requirement that would be burdensome 
to brokers. It merely uses what is already reported and presents this 
information in a manner meaningful to investors.
  My legislation also directs the SEC to conduct a study to assess 
financial literacy among mutual fund investors. The SEC will identify 
the most useful and relevant information that investors need prior to 
purchasing shares, methods to increase the transparency of expenses and 
potential conflicts of interest in mutual fund transactions, and a 
strategy to increase the financial literacy of investors that results 
in positive change in investor behavior. None of our disclosure 
provisions will truly work unless investors are effectively given the 
tools they need to make smart investment decisions.
  Finally, my bill requires the General Accounting Office, GAO, to 
study the current marketing practices for the sale of shares of mutual 
funds. GAO will provide recommendations to improve investor protections 
in mutual fund advertising to ensure that investors are able make 
informed financial decisions when purchasing shares.
  Public confidence in mutual funds will not recover if funds continue 
to employ different sets of rules for large and small investors, engage 
in ethical misconduct, and enrich themselves at the expense of 
shareholders. The transgressions brought to light underscore the 
absence of effective oversight by the boards of mutual funds companies. 
This legislation will strengthen board independence and enhance the 
transparency of financial relationships. The American investing public 
deserves nothing less.
  Mr. President, I look forward to working with my colleagues in 
enacting meaningful reform of the troubled mutual fund industry. We 
must act to restore trust in this critical investment vehicle that 
people rely on for their financial future and goals. I ask unanimous 
consent that the text of the Mutual Fund Transparency Act of 2003 be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1822

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Mutual Fund Transparency Act 
     of 2003''.

     SEC. 2. DISCLOSURE OF FINANCIAL RELATIONSHIPS BETWEEN BROKERS 
                   AND MUTUAL FUND COMPANIES.

       (a) In General.--Section 15(b) of the Securities Exchange 
     Act of 1934 (15 U.S.C. 78o(b)) is amended by adding at the 
     end the following:
       ``(11) Confirmation of transactions for mutual funds.--
       ``(A) In general.--Each broker shall disclose in writing to 
     customers that purchase the shares of an open-end company 
     registered under section 8 of the Investment Company Act of 
     1940 (15 U.S.C. 80a-8)--
       ``(i) the amount of any compensation received or to be 
     received by the broker in connection with such transaction 
     from any sources; and
       ``(ii) such other information as the Commission determines 
     appropriate.
       ``(B) Timing of disclosure.--The disclosure required under 
     subparagraph (A) shall be made to a customer not later than 
     as of the date of the completion of the transaction.
       ``(C) Limitation.--The disclosures required under 
     subparagraph (A) may not be made exclusively in--
       ``(i) a registration statement or prospectus of an open-end 
     company; or
       ``(ii) any other filing of an open-end company with the 
     Commission.
       ``(D) Commission authority.--
       ``(i) In general.--The Commission shall promulgate such 
     rules as are necessary to carry out this paragraph not later 
     than 1 year after the date of enactment of the Mutual Fund 
     Transparency Act of 2003.
       ``(ii) Form of disclosure.--Disclosures under this 
     paragraph shall be in such form as the Commission, by rule, 
     shall require.
       ``(E) Definition.--In this paragraph, the term `open-end 
     company' has the same meaning as in section 5 of the 
     Investment Company Act of 1940 (15 U.S.C. 80a-5).''.
       (b) Disclosure of Brokerage Commissions.--Section 30 of the 
     Investment Company Act of 1940 (15 U.S.C. 80a-29) is amended 
     by adding at the end the following:
       ``(k) Disclosure of Brokerage Commissions.--The Commission, 
     by rule, shall require that brokerage commissions as an 
     aggregate dollar amount and percentage of assets paid by an 
     open-end company be included in any disclosure of the amount 
     of fees and expenses that may be payable by the holder of the 
     securities of such company for purposes of--
       ``(1) the registration statement of that open-end company; 
     and
       ``(2) any other filing of that open-end company with the 
     Commission, including the calculation of expense ratios.''.

     SEC. 3. MUTUAL FUND GOVERNANCE.

       (a) Independent Fund Boards.--Section 10(a) of the 
     Investment Company Act of 1940 (15 U.S.C. 80a-10(a)) is 
     amended--
       (1) by striking ``shall have'' and inserting the following: 
     ``shall--
       ``(1) have'';
       (2) by striking ``60 per centum'' and inserting ``25 
     percent'';
       (3) by striking the period at the end and inserting a 
     semicolon; and
       (4) by adding at the end the following:
       ``(2) have as chairman of its board of directors an 
     interested person of such registered company; or
       ``(3) have as a member of its board of directors any person 
     that is an interested person of such registered investment 
     company--
       ``(A) who has served without being approved or elected by 
     the shareholders of such registered investment company at 
     least once every 5 years; and
       ``(B) unless such director has been found, on an annual 
     basis, by a majority of the directors who are not interested 
     persons, after reasonable inquiry by such directors, not to 
     have any material business or familial relationship with the 
     registered investment company, a significant service provider 
     to the company, or any entity controlling, controlled by, or 
     under common control with such service provider, that is 
     likely to impair the independence of the director.''.
       (b) Action by Independent Directors.--Section 10 of the 
     Investment Company Act of 1940 (15 U.S.C. 80a-10) is amended 
     by adding at the end the following:
       ``(i) Action by Board of Directors.--No action taken by the 
     board of directors of a registered investment company may 
     require the vote of a director who is an interested person of 
     such registered investment company.
       ``(j) Independent Committee.--
       ``(1) In general.--The members of the board of directors of 
     a registered investment company who are not interested 
     persons of such registered investment company shall establish 
     a committee comprised solely of such members, which committee 
     shall be responsible for--
       ``(A) selecting persons to be nominated for election to the 
     board of directors; and
       ``(B) adopting qualification standards for the nomination 
     of directors.
       ``(2) Disclosure.--The standards developed under paragraph 
     (1)(B) shall be disclosed in the registration statement of 
     the registered investment company.''.
       (c) Definition of Interested Person.--Section 2(a)(19) of 
     the Investment Company Act of 1940 (15 U.S.C. 80a-2) is 
     amended--
       (1) in subparagraph (A)--
       (A) in clause (iv), by striking ``two'' and inserting 
     ``5''; and
       (B) by striking clause (vii) and inserting the following:
       ``(vii) any natural person who has served as an officer or 
     director, or as an employee within the preceding 10 fiscal 
     years, of an investment adviser or principal underwriter to 
     such registered investment company, or of any entity 
     controlling, controlled by, or under common control with such 
     investment adviser or principal underwriter;
       ``(viii) any natural person who has served as an officer or 
     director, or as an employee within the preceding 10 fiscal 
     years, of any entity that has within the preceding 5 fiscal 
     years acted as a significant service provider to such 
     registered investment company, or of any entity controlling, 
     controlled by, or under the common control with such service 
     provider;
       ``(ix) any natural person who is a member of a class of 
     persons that the Commission, by rule or regulation, 
     determines is unlikely to exercise an appropriate degree of 
     independence as a result of--

       ``(I) a material business relationship with the investment 
     company or an affiliated person of such investment company;
       ``(II) a close familial relationship with any natural 
     person who is an affiliated person of such investment 
     company; or
       ``(III) any other reason determined by the Commission.'';

       (2) in subparagraph (B)--
       (A) in clause (iv), by striking ``two'' and inserting 
     ``5''; and

[[Page 27221]]

       (B) by striking clause (vii) and inserting the following:
       ``(vii) any natural person who is a member of a class of 
     persons that the Commission, by rule or regulation, 
     determines is unlikely to exercise an appropriate degree of 
     independence as a result of--

       ``(I) a material business relationship with such investment 
     adviser or principal underwriter or affiliated person of such 
     investment adviser or principal underwriter;
       ``(II) a close familial relationship with any natural 
     person who is an affiliated person of such investment adviser 
     or principal underwriter; or
       ``(III) any other reason as determined by the 
     Commission.''.

       (d) Definition of Significant Service Provider.--Section 
     2(a) of the Investment Company Act of 1940 is amended by 
     adding at the end the following:
       ``(53) Significant service provider.--
       ``(A) In general.--Not later than 270 days after the date 
     of enactment of the Mutual Fund Transparency Act of 2003, the 
     Securities and Exchange Commission shall issue final rules 
     defining the term `significant service provider'.
       ``(B) Requirements.--The definition developed under 
     paragraph (1) shall include, at a minimum, the investment 
     adviser and principal underwriter of a registered investment 
     company for purposes of paragraph (19).''.
       (e) Study.--
       (1) In general.--The Securities and Exchange Commission 
     shall conduct a study to determine whether the best interests 
     of investors in mutual funds would be served by the creation 
     of a Mutual Fund Oversight Board that--
       (A) has inspection, examination, and enforcement authority 
     over mutual fund boards of directors;
       (B) is funded by assessments against mutual fund assets;
       (C) the members of which are selected by the Securities and 
     Exchange Commission; and
       (D) has rulemaking authority.
       (2) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Securities and Exchange Commission 
     shall submit a report on the study required under paragraph 
     (1) to--
       (A) the Committee on Banking, Housing, and Urban Affairs of 
     the Senate; and
       (B) the Committee on Financial Services of the House of 
     Representatives.

     SEC. 4. PORTFOLIO MANAGER COMPENSATION.

       Not later than 270 days after the date of enactment of this 
     Act, the Securities and Exchange Commission shall prescribe 
     rules under the Investment Company Act of 1940, requiring 
     that a registered investment company disclose the structure 
     of, or method used to determine, the compensation of--
       (1) individuals employed by the investment adviser of the 
     company to manage the portfolio of the company; and
       (2) the ownership interest of such individuals in the 
     securities of the registered investment company.

     SEC. 5. FINANCIAL LITERACY AMONG MUTUAL FUND INVESTORS STUDY.

       (a) In General.--The Securities and Exchange Commission 
     shall conduct a study to identify--
       (1) the existing level of financial literacy among 
     investors that purchase shares of open-end companies, as such 
     term is defined under section 5 of the Investment Company Act 
     of 1940, that are registered under section 8 of such Act;
       (2) the most useful and understandable relevant information 
     that investors need to make sound financial decisions prior 
     to purchasing such shares;
       (3) methods to increase the transparency of expenses and 
     potential conflicts of interest in transactions involving the 
     shares of open-end companies;
       (4) the existing private and public efforts to educate 
     investors; and
       (5) a strategy to increase the financial literacy of 
     investors that results in a positive change in investor 
     behavior.
       (b) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Securities and Exchange Commission 
     shall submit a report on the study required under subsection 
     (a) to--
       (1) the Committee on Banking, Housing, and Urban Affairs of 
     the Senate; and
       (2) the Committee on Financial Services of the House of 
     Representatives.

     SEC. 6. STUDY REGARDING MUTUAL FUND ADVERTISING.

       (a) In General.--The Comptroller General of the United 
     States shall conduct a study on mutual fund advertising to 
     identify--
       (1) existing and proposed regulatory requirements for open-
     end investment company advertisements;
       (2) current marketing practices for the sale of open-end 
     investment company shares, including the use of unsustainable 
     past performance data, funds that have merged, and incubator 
     funds;
       (3) the impact of such advertising on consumers;
       (4) recommendations to improve investor protections in 
     mutual fund advertising and additional information necessary 
     to ensure that investors can make informed financial 
     decisions when purchasing shares.
       (b) Report.--Not later than 1 year after the date of 
     enactment of this Act, the Comptroller General of the United 
     States shall submit a report on the results of the study 
     conducted under subsection (a) to--
       (1) the Committee on Banking, Housing, and Urban Affairs of 
     the United States Senate; and
       (2) the Committee on Financial Services of the House of 
     Representatives.

  Mr. LIEBERMAN. Mr. President, I rise today to join with my colleagues 
Senator Daniel Akaka and Senator Peter Fitzgerald and cosponsor 
legislation that would begin the crucial process of reforming the 
mutual fund industry. In the wake of shocking revelations of abusive 
trading and self-dealing in some of America's largest funds, it is 
imperative that we act quickly, and I commend my friend Senator Akaka 
for his leadership. We must do two things in order to reassure the 95 
million Americans who invest in mutual funds that they have not 
misplaced their trust. We must find out how this was allowed to happen, 
and we must put safeguards in place to prevent these widespread abuses 
from poisoning our markets again.
  As the deceptions and conflicts of the Wall Street analysts were 
uncovered last year in the wake of the Enron scandal, the oft-heard 
advice to the average investor was to invest in mutual funds. Investors 
took this advice in droves. Half of all American households own shares 
in mutual funds, and of the $7 trillion invested in mutual funds, $2.1 
trillion of it is invested for retirement.
  Perhaps these working families felt comfortable entrusting their 
precious savings with mutual funds because these funds offer one of the 
most highly regulated investments available. Mutual funds, their 
directors and their managers owe their investors a statutory fiduciary 
duty. Mutual funds are overseen by the SEC through a prescribed 
registration and reporting process as well as a regular examination and 
audit process, pursuant to the Investment Company Act of 1940.
  Unfortunately, the trust of these American families has been abused. 
According to a just-released survey conducted by the Securities and 
Exchange Commission, half of the largest 88 mutual funds have permitted 
a practice called ``market-timing,'' which allows some investors to 
trade quickly in and out of the funds, even though many of those funds 
had explicit policies against such trading because of its detrimental 
impact on other investors in the fund. Many fund companies admitted 
providing portfolio information, unavailable publicly, to certain large 
investors to help them make trading decisions. Also, a full one-quarter 
of the brokerage firms surveyed indicated that they had allowed certain 
customers to engage in late-trading, an illegal practice that allows 
favored investors to execute trades based on that day's price, but 
after the market close, when new information has come to light. Perhaps 
most shocking, Stephen Cutler, Director of the SEC's Enforcement 
Division, has said that there is evidence that officials at fund 
companies profited personally at the expense of their customers by 
market-timing their own funds.
  The SEC didn't discover these abuses on its own initiative, however. 
It acted only after the New York State Attorney General and the 
Massachusetts Secretary of the Commonwealth took steps to investigate 
and stop this conduct. The SEC didn't discover the abuses through the 
extensive reporting process mutual funds go through; the SEC didn't 
discover the abuses through the broad and regular examinations the SEC 
does of these mutual funds; the SEC didn't even discover the abuses 
after it received a tip from an insider, who went to the SEC with his 
attorney, evidence in hand.
  Yesterday, I sent a ten-page letter to SEC Chairman William 
Donaldson, demanding to know how the SEC could have failed to uncover 
such a sweeping problem in the mutual fund industry. I asked how the 
SEC planned to change its practices in order to ensure that it is never 
again caught so unaware. Congress gave the SEC the responsibility to 
monitor the mutual fund industry, and we must ensure that the SEC does 
its job.
  This is not the first time the SEC has been caught off guard with a 
scandal on Wall Street. In October 2002, the

[[Page 27222]]

staff of the Senate Governmental Affairs Committee, of which I was then 
the Chairman, released a report, Financial Oversight of Enron: The SEC 
and Private-Sector Watchdogs, detailing the ignored red flags and the 
missed opportunities that kept the SEC from detecting the problems at 
Enron before that company collapsed, taking with it the jobs and 
retirement savings of thousands of Americans. Again, despite being 
fully aware of the troubling conflicts faced by Wall Street analysts, 
the SEC turned a blind eye to that problem until this Committee and 
others held hearings on the issue and New York State Attorney General 
Eliot Spitzer exposed how deeply deceptive many analyst recommendations 
truly were. I hope this mutual fund scandal represents the last time 
the SEC is playing regulatory catch-up.
  In addition to holding the SEC accountable, Congress must also act to 
protect investors by fixing the holes in the statutory scheme for 
mutual funds. That's why I'm pleased to cosponsor the Mutual Fund 
Transparency Act of 2003, which enjoys widespread support from consumer 
groups. It contains many of the policy changes I urged the SEC to 
consider in my letter to Chairman Donaldson. It would strengthen the 
independence of mutual fund boards of directors by tightening the 
definition of independence and by requiring that 75 percent of the 
directors be independent. The bill would also require that mutual fund 
boards have nominating committees comprised solely of independent 
directors, so that directors are not chosen by management.
  In my letter to the SEC, I also criticized the opaque or, in some 
cases, lack of, disclosure to investors about mutual fund fees. The 
Mutual Fund Transparency Act would significantly improve such 
disclosure to investors, by including in the fees disclosed to 
investors the costs the fund incurs when it executes trades of its 
holdings. Currently, such costs are not included among these more 
visible fees, which are disclosed in documents provided directly to 
mutual fund shareholders. Trading costs are currently only disclosed in 
filings with the SEC, but if this bill became law, trading costs would 
be included among the fees provided directly to investors. Such 
information is useful because it can give investors a sense of how 
often their funds are buying and selling assets and at what expense. 
The bill would also require funds to tell shareholders how fund 
advisers are compensated. Public companies are required to tell their 
shareholders how their managers are paid; mutual fund shareholders 
should have the same information. Finally, the bill would require that 
brokers offering mutual funds to investors inform those investors of 
any fees or incentives those brokers are receiving for making those 
sales in a sale confirmation.
  The bill also mandates that the SEC study three initiatives to 
improve mutual fund oversight and transparency. The first two ask the 
SEC and the Comptroller General, respectively, to look at financial 
literacy among mutual fund investors and at mutual fund advertising, to 
determine how relevant information can be made clearer and more readily 
understandable to the average investor. In my letter to the SEC, I 
suggested the agency consider using consumer research methods in order 
to achieve such a result. The third study required by the bill relates 
to the formation of a Mutual Fund Oversight Board to take over the 
frontline efforts of mutual fund regulation from the SEC, while 
remaining under that agency's oversight. This may be a good approach, 
but I have concerns about the costs of such a board being borne by 
mutual fund investors, which is one of the areas suggested for study. I 
hope other options would be explored.
  The Mutual Fund Transparency Act is clearly an important first step 
in closing some of the gaps in the laws governing these important 
investment vehicles. But there is more work to do, and I look forward 
to working with Senator Akaka and the other cosponsors of this bill in 
making further necessary improvements. For example, we should consider 
strengthening the fiduciary duties owed by mutual fund directors and 
managers to their shareholders. In addition, as I indicated in my 
letter to the SEC, guidelines must be developed to prevent mutual fund 
directors from serving on more boards of funds than they can 
effectively oversee; at some of the major funds, directors serve on a 
hundred or more boards. Compliance officers at the funds must be 
elevated to emphasize their role. I suggested in my letter to the SEC 
that such a compliance officer should be active at each fund and should 
report directly to an independent committee of the board.
  Moreover, as I pointed out to the SEC in my letter to Chairman 
Donaldson, we must close the loophole that allowed so many brokers and 
mutual funds to circumvent the law on late trading. Imposing a hard 
deadline of a time at which trades must be into the mutual fund may be 
the solution to this problem. We also must provide even more, clearer 
information to investors about the fees they are actually paying to 
participate in mutual funds. In my letter the SEC, I asked the agency 
why investors should not receive on their monthly statements detail 
about the fees they actually paid to the fund during that time period, 
similar to the finance charge information that credit card consumers 
get. I also suggested that funds be required to provide comparative fee 
information. This would help people make better investment decisions, 
and might also encourage more competition among funds to reduce 
expenses.
  Mutual funds hold the nest eggs, the retirement savings, and the 
college funds for many of America's working families. Through those 
investments in their own futures, those families are also feeding 
capital into today's economy, fueling the engine that creates and 
maintains American jobs. In a very real sense, these mutual fund 
investments are investments in the American dream. We must act now to 
protect them, and to restore the integrity to the mutual fund industry.
  Once again, I thank Senator Akaka for his leadership on this issue, 
and I urge my colleagues to support this important and timely 
legislation.
                                 ______
                                 
      By Mr. BURNS (for himself and Mr. Baucus):
  S. 1823. A bill to amend the Act of August 9, 1955, to authorize the 
Assiniboine and Sioux Tribes of the Fort Peck Reservation to lease 
tribally-owned land on the Fort Peck Indian Reservation for 1 or more 
interstate gas pipelines; to the Committee on Indian Affairs.
  Mr. BURNS. Mr. President, I rise today to introduce the Northern 
Border Lease Extension legislation. Currently, and since 1981, Northern 
Border Pipeline Company has leased tribally owned lands on the Fort 
Peck Indian Reservation for its gas pipeline, which carries gas from 
Alberta, Canada to consumers in the Midwest. This lease expires in 
March 2011.
  Northern Border wishes to have the right to continue to lease tribal 
lands for up to fifty years beyond 2011 for its pipeline. They need to 
be assured as soon as possible their lease can be extended. If not, 
they must look for other options that would include constructing a new 
pipeline to go around the Reservation by 2011.
  If the lease is not extended, not only will Northern Border be forced 
to build a new pipeline, but also the Assiniboine and Sioux Tribes of 
the Fort Peck Reservation will lose over $20 million in payments from 
Northern Border. Additionally, if extended, the lease would provide 
tens of millions of dollars in additional payments, with the rental 
payments increasing at an annual rate of three percent per year every 
five years. These terms came about after negotiations between Northern 
Border and the Assiniboine and Sioux Tribes of the Fort Peck 
Reservation.
  This legislation would allow the Tribes to enter into a lease with 
Northern Border that would give Northern Border the right to continue 
to lease tribal lands for up to fifty years beyond 2011 for its 
pipeline. This is one of those great instances when both sides of a 
situation agree and are of one mind. This provision was included in a 
bill previously approved by the Senate

[[Page 27223]]

Indian Affairs Committee, but unfortunately for reasons not associated 
with this provision, is being held up. Therefore, I wish to introduce 
this important piece of legislation as a stand-alone bill.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1823

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

     SECTION 1. LEASE OF TRIBALLY-OWNED LAND BY ASSINIBOINE AND 
                   SIOUX TRIBES OF THE FORT PECK RESERVATION.

       The first section of the Act of August 9, 1955 (25 U.S.C. 
     415), is amended by adding at the end the following:
       ``(g) Lease of Tribally-Owned Land by Assiniboine and Sioux 
     Tribes of the Fort Peck Reservation.--
       ``(1) In general.--Notwithstanding subsection (a) and any 
     regulations under part 162 of title 25, Code of Federal 
     Regulations (or any successor regulation), subject to 
     paragraph (2), the Assiniboine and Sioux Tribes of the Fort 
     Peck Reservation may lease to the Northern Border Pipeline 
     Company tribally-owned land on the Fort Peck Indian 
     Reservation for 1 or more interstate gas pipelines.
       ``(2) Conditions.--A lease entered into under paragraph 
     (1)--
       ``(A) shall commence during fiscal year 2011 for an initial 
     term of 25 years;
       ``(B) may be renewed for an additional term of 25 years; 
     and
       ``(C) shall specify in the terms of the lease an annual 
     rental rate--
       ``(i) which rate shall be increased by 3 percent per year 
     on a cumulative basis for each 5-year period; and
       ``(ii) the adjustment of which in accordance with clause 
     (i) shall be considered to satisfy any review requirement 
     under part 162 of title 25, Code of Federal Regulations (or 
     any successor regulation).''.
                                 ______
                                 
      By Mr. DeWINE:
  S. 1825. A bill to amend title 18, United States Code, to provide 
penalties for the sale and use of unauthorized mobile infrared 
transmitters; to the Committee on the Judiciary.
  Mr. DeWINE. Mr. President, I rise today, to introduce the Safe 
Intersections Act of 2003. This bill would criminalize the unauthorized 
sale and possession of a mobile infrared transmitter, MIRT.
  A MIRT is a remote control for changing traffic signals. These 
devices have been used for years by ambulances, police cars, and fire 
trucks, allowing them to reach emergencies faster. As an ambulance 
approaches an intersection where the light is red, the driver engages 
the transmitter. That transmitter then sends a signal to a receiver on 
the traffic light, which changes to green within a few seconds. This is 
a very useful tool when properly used in emergency situations.
  In a 2002 survey, the U.S. Department of Transportation found that in 
the top 78 metropolitan areas, there are 24,683 traffic lights equipped 
with the sensors. In my home State of Ohio, there is a joint pilot 
project underway by the Washington Township Fire Department and the 
Dublin Police Department to install these devices. Other areas in Ohio 
where they are in use include Mentor, Twinsburg, Willoughby, and 
Westerville. Across the country, law enforcement officers, fire 
departments, and paramedics utilize this technology to make communities 
safer.
  However, recently it has come to light that this technology may be 
sold to unauthorized individuals--individuals who want to use this 
technology to bypass red lights during their commute or during their 
everyday driving. MIRT was never intended for this use. MIRT 
technology--in the hands of unauthorized users--could result in traffic 
problems, like gridlock, or even worse, accidents in which people are 
injured or killed.
  Let me quote from an ad that was recently posted on the Internet 
auction site, ``eBay'':

       Tired of sitting at endless red lights? Frustrated by 
     lights that turn from green to red too quickly, trapping you 
     in traffic? The MIRT light changer used by police and other 
     emergency vehicles Change the Traffic Signal Red to Green 
     [for] only $499.00. Traffic Signal Changing Devices--It's 
     every motorist's fantasy to be able to make a red traffic 
     light turn green without so much as easing off the 
     accelerator. The very technology that has for years allowed 
     fire trucks, ambulances and police cars to emergencies 
     faster--a remote control that changes traffic signals--is now 
     much cheaper and potentially accessible.

  This ad demonstrates the extent to which the potential widespread 
sale and possession of MIRT technology by drivers would be a hazard to 
public safety and must be stopped before it starts. That is why I am 
introducing the Safe Intersections Act of 2003. I encourage my 
colleagues to cosponsor this important piece of legislation.
  I ask unanimous consent that the legislation I have just introduced 
be printed in the appropriate place in the Record immediately following 
the conclusion of my remarks.
                                 ______
                                 
      By Mr. REID (for himself and Mr. Ensign):
  S. 1826. A bill to direct the Secretary of the Interior to convey 
certain land in Washoe County, Nevada, to the Board of Regents of the 
University and Community College System of Nevada; to the Committee on 
Energy and Natural Resources.
  Mr. REID. Mr. President, sometime, when the opportunity arises, I am 
going to introduce, for myself and Senator Ensign, the Dandini Research 
Park Transfer Act, which will transfer an important tract of land in 
Washoe County, Nevada, to the University and Community College System 
of Nevada.
  The University of Nevada holds two patents from the Bureau of Land 
Management for approximately 467 acres of public land located north of 
downtown Reno. In the early 1970s, the land was patented to the 
university pursuant to the Recreation and Public Purposes Act. Now 
known as the Dandini Research Park, it is the home of Truckee Meadows 
Community College and the Desert Research Institute's Northern Nevada 
Science Center.
  Truckee Meadows Community College and its predecessor, Western Nevada 
Community College, have provided educational programs and opportunities 
to the residents of Reno, Sparks, and the surrounding communities for 
over 30 years. Construction of the College's facilities on the Dandini 
campus began in 1975, shortly after conveyance of the original patents.
  For over 25 years the Desert Research Institute has excelled in 
applied scientific research and the application of technologies to 
improve people's lives in Nevada and throughout the world. Its three 
core divisions of Atmospheric, Hydrologic, and Earth and Ecosystem 
Sciences cooperate with two interdisciplinary centers to provide 
innovative solutions to pressing environmental problems. The Center for 
Arid Lands Environmental Management and the Center for Watersheds and 
Environmental Sustainability apply scientific understanding to the 
effective management of natural resources while addressing our needs 
for economic diversification and science-based educational 
opportunities. In doing so, DRI undertakes fundamental scientific 
research in Nevada and around the globe. For example, as a key 
participant in the U.S. Geological Survey Water Research Program, DRI 
plays a critical role in identifying and helping protect the region's 
scarce water resources.
  DRI shares its facility with the Western Regional Climate Center, one 
of six regional climate centers operating under the National Oceanic 
and Atmospheric Administration's climate program. The Western Regional 
Climate Center conducts applied research and provides high quality 
climate data and information pertaining to the western United States.
  The Desert Research Institute wishes to expand its Northern Nevada 
Science Center. DRI is considering an innovative means of financing the 
expansion, which would involve a private developer who would build and 
finance the expansion and lease it back to DRI. The private developers 
with whom DRI has discussed the proposal, as well as the Institute's 
counsel, however, have pointed out that the terms of the patents and 
the restrictions imposed by the Recreation and Public Purposes Act 
represent obstacles to such an arrangement.
  Truckee Meadows Community College and the Northern Nevada Science 
Center are exceptional assets to the

[[Page 27224]]

scientific and educational community in the Truckee Meadows. The Center 
serves not only the citizens of Washoe County, but the needs of all 
Nevadans and the western United States as well. It deserves the 
opportunity to grow and prosper with the community--one of the fastest-
growing communities in the Nation.
  The bill Senator Ensign and I will introduce simply directs the 
Secretary of the Interior to convey this property from the Bureau of 
Land Management to the University and Community College System of 
Nevada. Because of the overwhelming public benefit provided by the 
Center, we ask that the land be conveyed for free, but that the 
University cover the costs of the transaction.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1826

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Dandini Research Park 
     Conveyance Act''.

     SEC. 2. DEFINITIONS.

       In this Act:
       (1) Board of regents.--The term ``Board of Regents'' means 
     the Board of Regents of the University and Community College 
     System of Nevada.
       (2) Secretary.--The term ``Secretary'' means the Secretary 
     of the Interior.

     SEC. 2. CONVEYANCE TO THE UNIVERSITY AND COMMUNITY COLLEGE 
                   SYSTEM OF NEVADA.

       (a) Conveyance.--
       (1) In general.--The Secretary shall convey to the Board of 
     Regents, without consideration, all right, title, and 
     interest of the United States in and to the approximately 467 
     acres of land located in Washoe County, Nevada, patented to 
     the University of Nevada under the Act of June 14, 1926 
     (commonly known as the ``Recreation and Public Purposes 
     Act'') (43 U.S.C. 869 et seq.), and described in paragraph 
     (2).
       (2) Description of land.--The land referred to in paragraph 
     (1) is--
       (A) the parcel of land consisting of approximately 309.11 
     acres and more particularly described as T. 20 N., R. 19 E., 
     Sec. 25, lots 1, 2, 3, 4, 5, and 11, SE \1/4\ NW \1/4\, NE 
     \1/4\ SW \1/4\, Mount Diablo Meridian, Nevada; and
       (B) the parcel of land consisting of approximately 158.22 
     acres and more particularly described as T. 20 N., R. 19 E., 
     Sec. 25, lots 6 and 7, SW \1/4\ NE \1/4\, NW \1/4\ SE \1/4\, 
     Mount Diablo Meridian, Nevada.
       (b) Costs.--The Board of Regents shall pay to the United 
     States an amount equal to the costs of the Secretary 
     associated with the conveyance under subsection (a)(1).
       (c) Conditions.--If the Board of Regents sells any portion 
     of the land conveyed to the Board of Regents under subsection 
     (a)(1)--
       (1) the amount of consideration for the sale shall reflect 
     fair market value, as determined by an appraisal; and
       (2) the Board of Regents shall pay to the Secretary an 
     amount equal to the net proceeds of the sale, for use by the 
     Director of the Bureau of Land Management in the State of 
     Nevada, without further appropriation.
                                 ______
                                 
      By Mr. KYL (for himself, Mr. Chambliss, Mr. Craig, Mr. Nickles, 
        Mr. Sessions, and Mr. Cornyn):
  S. 1828. A bill to eliminate the substantial backlog of DNA samples 
collected from crime scenes and convicted offenders, to improve and 
expand the DNA testing capacity of Federal, State, and local crime 
laboratories, to increase research and development of new DNA testing 
technologies, to develop new training programs regarding the collection 
and use of DNA evidence, and for other purposes; to the Committee on 
the Judiciary.
  Mr. KYL. Mr. President, I rise today to introduce the ``Advancing 
Justice Through DNA Technology Act of 2003.'' This bill consists of the 
President's DNA initiative, which will expand and improve DNA databases 
used for criminal investigations and authorize additional funds to 
clear the backlog of untested DNA evidence in the nation's crime labs.
  This bill offers several advantages over another version of the 
President's proposal that recently was introduced in the Senate. 
Today's bill gives States greater leeway in the use of DNA grants, 
removes arbitrary and unnecessary restrictions on the testing of 
criminal suspects' DNA samples, authorizes additional funds to clear 
the backlog of non-DNA forensics evidence, and--most importantly avoids 
tying this critical program to unrelated and highly controversial anti-
death penalty legislation. I include in the record at the end of this 
statement a news story that describes the nature of the state counsel 
and other extraneous provisions that others have sought to attach to 
the President's proposal.
  The bill that I introduce today is an unencumbered--and unabridged--
version of the President's DNA initiative: the DNA Sexual Assault 
Justice Act and the Rape Kits and DNA Evidence Backlog Elimination Act, 
which authorize the Debbie Smith DNA Backlog Grant Program and provide 
$755 million over five years to address the DNA backlog crisis in the 
nation's crime labs.
  Today's bill includes the following improvements over other 
congressional versions of the President's proposal: First, this bill 
also expands funding for non-DNA forensics funding. Section 211 of the 
bill authorizes $100 million in new grant programs to eliminate ``the 
backlog in the analysis of any area of forensic science evidence, 
including firearms examination, latent prints, toxicology, controlled 
substances, forensic pathology, questionable documents, and trace 
evidence.''
  Second, this bill increases the authorization for the Paul Coverdell 
grant program, in recognition of the fact that this program never has 
been funded at more than a small fraction of its authorization. Other 
congressional versions of the President's DNA initiative only authorize 
decreasing Coverdell funding in the coming years. This bill resets the 
clock on the Coverdell program, authorizing 2004 funding at the level 
for 2001, and subsequent years accordingly. This will allow sharp 
increases in Coverdell funding in the coming years.
  Third, today's bill allows states to test DNA samples from convicts 
seeking exoneration against the national DNA database, in order to 
determine if the convict has committed other rapes or murders. The 
other congressional versions of the President's DNA initiative would 
bar such testing; they effectively would give convicts a free roll of 
the dice to challenge their current convictions while protecting them 
against the risk that they will be linked to other crimes. There is no 
reason why states should be prevented from solving such other crimes. 
If DNA evidence is good enough to test a prisoner's conviction for the 
crimes that we do know that he committed, it also is good enough to 
establish the prisoner's involvement in crimes that we do not yet know 
that he committed.
  Fourth, this bill includes all Federal felony arrestees in the 
federal DNA database. Other versions of this bill exclude arrestees and 
place other unnecessary and arbitrary limits on the federal DNA index. 
The federal government already maintains fingerprints for all federal 
felony arrestees--there is no reason to treat DNA evidence differently. 
Nor is there any reason to prevent states and the federal government 
from solving other crimes committed by suspects arrested for a federal 
felony offense.
  The Department of Justice has expressly informed Congress of the 
benefits of casting a wide net when including criminal suspects in the 
federal DNA database. During a July 17 hearing on the President's DNA 
initiative before the Crime Subcommittee of the House Judiciary 
Committee, Sarah Hart, the Director of the National Institute of 
Justice, testified that:

       The efficacy of the DNA identification system depends 
     entirely on the profiles entered into it. Experience 
     demonstrates that broad collection and indexing of DNA 
     samples is critical to the effective use of the DNA 
     technology to solve rapes, murders, and other serious crimes.
       The DNA sample that enables law enforcement to identify the 
     perpetrator of a rape, for example, often was not collected 
     in connection with an earlier rape. Rather, in a large 
     proportion of such cases, the sample was taken as a result of 
     the perpetrator's prior conviction for a non-violent crime 
     (such as a burglary, theft, or drug offense).
       For example, in Virginia, which has authorized the 
     collection of DNA samples from all felons since 1991, a 
     review of cases in which offenders were linked to sex crimes 
     through DNA matching found that almost 40% of the offenders 
     had no prior convictions

[[Page 27225]]

     for sexual or violent offenses. Most serious offenders do not 
     confine themselves to violent crimes. The experience of 
     States with broad DNA collection regimes demonstrates that 
     DNA databases that include all felons dramatically increase 
     law enforcement's ability to solve serious crimes.

  Fifth, today's bill tolls the statute of limitations when a 
perpetrator has been identified through DNA--including in rape cases. 
Other congressional versions of the President's initiative inexplicably 
exclude sexual-assault crimes from the initiative's DNA tolling 
provision. There is no reason to do so. Indeed, it is in sexual-assault 
cases that DNA evidence is most likely to identify a perpetrator. At 
the July 17 hearing before the House Judiciary Committee's Crime 
Subcommittee, the Department of Justice testified in favor of tolling 
the statute of limitations to the full extent permitted by the 
Constitution.
  Sixth, this bill allows grants for DNA training and research to be 
made to prosecutors' organizations, universities, and other private 
entities. Competing bill versions limit such grants to state and local 
governments, which is inconsistent with the President's DNA initiative.
  Finally, the bill that I introduce today does not include the so-
called ``Innocence Protection Act'' (IPA), a controversial anti-death 
penalty bill. The other congressional versions of the President's 
initiative have incorporated the IPA as a third title to the 
President's bill. At the July 17 hearing on the President's initiative, 
the Department of Justice made very clear that it ``do[es] not believe 
that legislation embodying the important proposals in the President's 
DNA initiative should be joined to these controversial [IPA] measures, 
which intrinsically are unrelated to DNA.''
  In an October 27 letter to several members of Congress, the National 
District Attorneys Association also voiced strong objections to the 
capital-counsel provisions included in the IPA titles of the other 
bills. The NDAA's letter stated:

       Section 321 [of these bills] attempts to re-establish the 
     old 'death penalty resource centers.' As you no doubt recall, 
     Congress abolished funding for such centers because they 
     devolved into organizations dedicated solely to the abolition 
     of the death penalty and were staffed and controlled by those 
     dedicated to the disruption of the criminal justice system by 
     whatever means available, ethical or otherwise. Section 321 
     would cause a return to such tactics by removing the ability 
     for the state judiciary to appoint counsel in death penalty 
     cases and giving that authority to a self-appointed group of 
     anti-death penalty attorneys.
       . . . NDAA strongly urges deletion of Section 321 from this 
     bill . . . .
       Elimination of Section 321 . . . keeps the appointment and 
     control of capital defense counsel in the hands of state 
     court judges who are responsible for insuring that defendants 
     receive quality representation. With Section 321 there is no 
     oversight of those individuals selected to develop state 
     standards for capital defense counsel.

  The IPA titles included in the other congressional versions of the 
President's DNA initiative would authorize $500 million in Federal 
funding for State public defenders in State capital cases. There is no 
reason for Congress to finance the States' public-defender systems. The 
States adequately fund these programs themselves--indeed, many have 
enacted reforms and substantially increased funding for public 
defenders in recent years. When the IPA originally was introduced in 
2000, it was targeted at the State of Texas. In 2001, the Texas 
legislature enacted reforms that completely overhauled the State's 
public-defender system. Yet the IPA provisions of the other Senate bill 
would declare Texas's reforms ``ineffective,'' and would force the 
State to again replace its indigent-defense system. Such a mandate 
makes no sense.
  Moreover, there is no reason why States cannot or should not fund 
their own indigent-defender systems. Basic principles of federalism 
dictate that each level of government should finance its own 
operations. Once States become accustomed to and budget for Federal 
funds, they never are able to reject the money (or its conditions) in 
the future. And Federal funding inevitably comes with increasing 
Federal strings. In the long run, the States risk losing control over 
their own public-defender programs. There is no reason to start down 
this path.
  The IPA proposals in the other congressional versions of the 
President's initiative begin by placing a number of conditions on the 
states' receipt of federal funds. Among these conditions is that states 
transfer control over capital defense to an ``entity'' composed of 
persons with ``demonstrated knowledge and expertise in capital 
representation.'' (This means private defense lawyers; public 
prosecutors likely would be barred by their jobs from serving or would 
be conflicted out.) This new ``entity'' would be charged with: (1) 
setting standards for capital-defense counsel; (2) deciding which 
lawyers meet those standards; and (3) appointing lawyers from the 
roster of qualifying attorneys to represent defendants in particular 
cases.
  Essentially, the bill's new ``entity'' would completely control 
staffing of the defense in capital cases. From past experience with the 
``capital resource centers,'' which were defunded by Congress in 1996, 
we know that hard-core death penalty opponents tend to gravitate toward 
these jobs, and will engage in litigation abuse when not supervised. 
Congress should not require the states to repeat its own past mistakes. 
It should not place anti-death penalty partisans in charge of public 
representation of capital defendants.
  The other congressional versions of the President's proposal also 
include these additional highly problematic provisions:
  They allow free DNA testing under very low standards. The competing 
bills provide that DNA tests shall be available to any prisoners if a 
negative test match would ``raise a reasonable probability that the 
applicant did not commit the offense.'' This standard is too low. Not 
all DNA evidence clearly came from the perpetrator of the crime or had 
anything to do with the crime--for example, a blood spot near the crime 
scene may or may not have come from the perpetrator. The ``reasonable 
probability'' standard means a prisoner could secure a test even if, 
despite a negative match, the other evidence would still show that the 
prisoner more likely than not committed the crime. The bill requires 
only a chance that the prisoner did not commit the crime. Almost every 
prisoner with material to test will be able to meet this standard. 
Reopening old cases forces victims and their families to relive the 
ordeal of the crime. They should not be put through this unless a 
negative test result could at least show more likely than not that the 
prisoner did not commit the crime.
  During the July 17 hearing before the House Crime Subcommittee, NIJ 
Director Sarah Hart expressly warned congress of the consequences of 
applying unduly low DNA testing standards. Director Hart testified:

       [W]hile post-conviction DNA testing is necessary to correct 
     erroneous convictions imposed prior to the ready availability 
     of DNA technology, experience also points to the need to 
     ensure that postconviction DNA testing is appropriately 
     designed so as to benefit actually innocent persons, rather 
     than actually guilty criminals who wish to game the system or 
     retaliate against the victims of their crimes. Frequently, 
     the results of postconviction DNA testing sought by prisoners 
     confirm guilt, rather than establishing innocence. In such 
     cases, justice system resources are squandered and the system 
     has been misused to inflict further harm on the crime victim. 
     The recent experience of a local jurisdiction is instructive:
       ``Twice last month, DNA tests at the police crime lab in 
     St. Louis confirmed the guilt of convicted rapists. Two other 
     tests, last year and in 2001, also showed the right men were 
     behind bars for brutal rapes committed a decade or more 
     earlier.
       ``[The St. Louis circuit attorney's] staff spent scores of 
     hours and thousands of dollars on those tests. She personally 
     counseled shaking, sobbing victims who were distraught to 
     learn that their traumas were being aired again.
       ``One victim, she said, became suicidal and then vanished; 
     her family has not heard from her for months. Another, a deaf 
     elderly woman, grew so despondent that her son has not been 
     able to tell her the results of the DNA tests. Every time he 
     raises the issue, she squeezes her eyes shut so that she will 
     not be able to read his lips.
       ```She finally seemed to have some peace about the rape, 
     and now she's gone back to being angry,' the woman's son 
     said.
       ``DNA tests confirmed that she was raped by Kenneth Charron 
     in 1985, when she was 59. To get that confirmation, however, 
     investigators had to collect a swab of saliva from

[[Page 27226]]

     her so that they could analyze her DNA. They also had to 
     inquire about her sexual past, so they could be sure the 
     semen found in her home was not that of a consensual partner.
       ``The questioning sent the woman into such depression that 
     she's now on medication. `None of this needed to happen,' her 
     son said.''

  Post-conviction DNA testing is not without its costs. It should be 
allowed only in carefully measured circumstances.
  Another problematic provision in the other congressional versions of 
the President's DNA initiative would employ an unduly low standard to 
authorize new trials for very old cases. This provision of these bills 
is designed to allow new trials for prisoners who may have been 
convicted 20 or more years ago. But it is very often impossible to 
retry a case this old--key witnesses die or disappear or their memories 
simply fade, and other evidence deteriorates or is lost. For many such 
cases, ordering a new trial effectively means that the prisoner walks 
free.
  Congress should make sure that there is compelling evidence of 
innocence before ordering new trials in old cases. Unfortunately, these 
other bills would allow a new trial if test results simply ``establish 
by a preponderance of the evidence that a new trial would result in an 
acquittal.'' The key language here is ``result in acquittal.'' It means 
a test result would not even have to indicate actual innocence; it need 
only conflict with other evidence of guilt so as to undermine the 
jury's ability to convict beyond a reasonable doubt. Prisoners could 
win new trials--and go free--even if, despite the negative DNA match, 
other evidence still shows the prisoner very likely committed the 
crime. Current law, Federal Rule 33, uses the liberal ``result in 
acquittal'' standard to allow new trials based on new evidence, but 
only within three years of trial. It usually is not difficult to retry 
a case within three years. But for older cases, Congress should insist 
on a showing of actual innocence before ordering an often-impossible 
new trial.
  There are other problems with the IPA titles in the various 
congressional versions of the President's DNA initiative. These titles 
would vastly expand DNA testing by authorizing tests even for prisoners 
who pleaded guilty. According to the Department of Justice, 90 percent 
of Federal prisoners pleaded guilty. Extending free tests to these 
prisoners literally expands the pool of potential test seekers by an 
order of magnitude. A guilty plea also means that there is no trial 
record, which makes it much more difficult to assess the potential 
relevance of DNA-test evidence.
  These other bills also impose broad and potentially costly new 
evidence-retention requirements on the States--requirements that appear 
to require States to preserve all potential DNA evidence in all cases, 
indefinitely. And these bills also would give the newly created 
capital-counsel ``entities'' an unwarranted degree of control over 
defense attorneys' budgets. States traditionally have charged courts 
and other responsible agencies with monitoring budgets for capital 
representation. Prosecutors do not have unlimited budgets. There is no 
reason to allow the capital-counsel entity to draw a blank check on 
State treasuries.
  There are other problems with the IPA titles of the competing bills. 
Suffice it to say that these titles are unrelated to the President's 
DNA initiative and both the Department of Justice and the NDAA oppose 
adding them to the President's bill. We should not weigh down the 
President's DNA initiative with the IPA. For this reason, my colleagues 
and I today introduce the President's proposal--important, consensus 
legislation that should be enacted by Congress without delay.
  Mr. President, I ask unanimous consent that the text of the bill, the 
following letter, and the following article all be printed in the 
Record.
  There being no objection, the additional material was ordered to be 
printed in the Record, as follows:

                                S. 1828

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

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Advancing 
     Justice Through DNA Technology Act of 2003''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.

  TITLE I--RAPE KITS AND DNA EVIDENCE BACKLOG ELIMINATION ACT OF 2003

Sec. 101. Short title.
Sec. 102. Debbie Smith DNA Backlog Grant Program.
Sec. 103. Expansion of Combined DNA Index System.
Sec. 104. Tolling of statute of limitations.
Sec. 105. Legal assistance for victims of violence.
Sec. 106. Ensuring private laboratory assistance in eliminating DNA 
              backlog.

            TITLE II--DNA SEXUAL ASSAULT JUSTICE ACT OF 2003

Sec. 201. Short title.
Sec. 202. Ensuring public crime laboratory compliance with Federal 
              standards.
Sec. 203. DNA training and education for law enforcement, correctional 
              personnel, and court officers.
Sec. 204. Sexual assault forensic exam program grants.
Sec. 205. DNA research and development.
Sec. 206. FBI DNA programs.
Sec. 207. DNA identification of missing persons.
Sec. 208. Enhanced criminal penalties for unauthorized disclosure or 
              use of DNA information.
Sec. 209. Tribal coalition grants.
Sec. 210. Expansion of Paul Coverdell Forensic Science Improvement 
              Grant Program.
Sec. 211. Creation of new Forensic Backlog Elimination Grant Program.
Sec. 212. Report to Congress.

  TITLE I--RAPE KITS AND DNA EVIDENCE BACKLOG ELIMINATION ACT OF 2003

     SEC. 101. SHORT TITLE.

       This title may be cited as the ``Rape Kits and DNA Evidence 
     Backlog Elimination Act of 2003''.

     SEC. 102. DEBBIE SMITH DNA BACKLOG GRANT PROGRAM.

       (a) Designation of Program; Eligibility of Local 
     Governments as Grantees.--Section 2 of the DNA Analysis 
     Backlog Elimination Act of 2000 (42 U.S.C. 14135) is 
     amended--
       (1) by amending the heading to read as follows:

     ``SEC. 2. THE DEBBIE SMITH DNA BACKLOG GRANT PROGRAM.'';

       (2) in subsection (a)--
       (A) in the matter preceding paragraph (1)--
       (i) by inserting ``or units of local government'' after 
     ``eligible States''; and
       (ii) by inserting ``or unit of local government'' after 
     ``State'';
       (B) in paragraph (2), by inserting before the period at the 
     end the following: ``, including samples from rape kits, 
     samples from other sexual assault evidence, and samples taken 
     in cases without an identified suspect''; and
       (C) in paragraph (3), by striking ``within the State'';
       (3) in subsection (b)--
       (A) in the matter preceding paragraph (1)--
       (i) by inserting ``or unit of local government'' after 
     ``State'' both places that term appears; and
       (ii) by inserting ``, as required by the Attorney General'' 
     after ``application shall'';
       (B) in paragraph (1), by inserting ``or unit of local 
     government'' after ``State'';
       (C) in paragraph (3), by inserting ``or unit of local 
     government'' after ``State'' the first place that term 
     appears;
       (D) in paragraph (4)--
       (i) by inserting ``or unit of local government'' after 
     ``State''; and
       (ii) by striking ``and'' at the end;
       (E) in paragraph (5)--
       (i) by inserting ``or unit of local government'' after 
     ``State''; and
       (ii) by striking the period at the end and inserting a 
     semicolon; and
       (F) by adding at the end the following:
       ``(6) if submitted by a unit of local government, certify 
     that the unit of local government has taken, or is taking, 
     all necessary steps to ensure that it is eligible to include, 
     directly or through a State law enforcement agency, all 
     analyses of samples for which it has requested funding in the 
     Combined DNA Index System; and'';
       (4) in subsection (d)--
       (A) in paragraph (1)--
       (i) in the matter preceding subparagraph (A), by striking 
     ``The plan'' and inserting ``A plan pursuant to subsection 
     (b)(1)'';
       (ii) in subparagraph (A), by striking ``within the State''; 
     and
       (iii) in subparagraph (B), by striking ``within the 
     State''; and
       (B) in paragraph (2)(A), by inserting ``and units of local 
     government'' after ``States'';
       (5) in subsection (e)--
       (A) in paragraph (1), by inserting ``or local government'' 
     after ``State'' both places that term appears; and
       (B) in paragraph (2), by inserting ``or unit of local 
     government'' after ``State'';
       (6) in subsection (f), in the matter preceding paragraph 
     (1), by inserting ``or unit of local government'' after 
     ``State'';
       (7) in subsection (g)--

[[Page 27227]]

       (A) in paragraph (1), by inserting ``or unit of local 
     government'' after ``State''; and
       (B) in paragraph (2), by inserting ``or units of local 
     government'' after ``States''; and
       (8) in subsection (h), by inserting ``or unit of local 
     government'' after ``State'' both places that term appears.
       (b) Reauthorization and Expansion of Program.--Section 2 of 
     the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 
     14135) is amended--
       (1) in subsection (a)--
       (A) in paragraph (3), by inserting ``(1) or'' before 
     ``(2)''; and
       (B) by inserting at the end the following:
       ``(4) To collect DNA samples specified in paragraph (1).
       ``(5) To ensure that DNA testing and analysis of samples 
     from crimes, including sexual assault and other serious 
     violent crimes, are carried out in a timely manner.'';
       (2) in subsection (b), as amended by this section, by 
     inserting at the end the following:
       ``(7) specify that portion of grant amounts that the State 
     or unit of local government shall use for the purpose 
     specified in subsection (a)(4).'';
       (3) by amending subsection (c) to read as follows:
       ``(c) Formula for Distribution of Grants.--
       ``(1) In general.--The Attorney General shall distribute 
     grant amounts, and establish appropriate grant conditions 
     under this section, in conformity with a formula or formulas 
     that are designed to effectuate a distribution of funds among 
     eligible States and units of local government that--
       ``(A) maximizes the effective utilization of DNA technology 
     to solve crimes and protect public safety; and
       ``(B) allocates grants among eligible entities fairly and 
     efficiently to address areas where significant backlogs 
     exist, by considering--
       ``(i) the number of offender and casework samples awaiting 
     DNA analysis in a jurisdiction;
       ``(ii) the population in the jurisdiction; and
       ``(iii) the number of part I violent crimes in the 
     jurisdiction.
       ``(2) Minimum amount.--The Attorney General shall allocate 
     to each State not less than 0.50 percent of the total amount 
     appropriated in a fiscal year for grants under this section, 
     except that the United States Virgin Islands, American Samoa, 
     Guam, and the Northern Mariana Islands shall each be 
     allocated 0.125 percent of the total appropriation.
       ``(3) Limitation.--Grant amounts distributed under 
     paragraph (1) shall be awarded to conduct DNA analyses of 
     samples from casework or from victims of crime under 
     subsection (a)(2) in accordance with the following 
     limitations:
       ``(A) For fiscal year 2004, not less than 50 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).
       ``(B) For fiscal year 2005 not less than 50 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).
       ``(C) For fiscal year 2006, not less than 45 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).
       ``(D) For fiscal year 2007, not less than 40 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).
       ``(E) For fiscal year 2008, not less than 40 percent of the 
     grant amounts shall be awarded for purposes under subsection 
     (a)(2).'';
       (4) in subsection (g)--
       (A) in paragraph (1), by striking ``and'' at the end;
       (B) in paragraph (2), by striking the period at the end and 
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(3) a description of the priorities and plan for awarding 
     grants among eligible States and units of local government, 
     and how such plan will ensure the effective use of DNA 
     technology to solve crimes and protect public safety.'';
       (5) in subsection (j), by striking paragraphs (1) and (2) 
     and inserting the following:
       ``(1) $151,000,000 for fiscal year 2004;
       ``(2) $151,000,000 for fiscal year 2005;
       ``(3) $151,000,000 for fiscal year 2006;
       ``(4) $151,000,000 for fiscal year 2007; and
       ``(5) $151,000,000 for fiscal year 2008.''; and
       (6) by adding at the end the following:
       ``(k) Use of Funds for Accreditation and Audits.--The 
     Attorney General may distribute not more than 1 percent of 
     the grant amounts under subsection (j)--
       ``(1) to States or units of local government to defray the 
     costs incurred by laboratories operated by each such State or 
     unit of local government in preparing for accreditation or 
     reaccreditation;
       ``(2) in the form of additional grants to States, units of 
     local government, or nonprofit professional organizations of 
     persons actively involved in forensic science and nationally 
     recognized within the forensic science community--
       ``(A) to defray the costs of external audits of 
     laboratories operated by such State or unit of local 
     government, which are participating in the National DNA Index 
     System in order to ensure compliance with quality assurance 
     standards;
       ``(B) to assess compliance with any plans submitted to the 
     National Institute of Justice, which detail the use of funds 
     received by States or units of local government under this 
     Act; and
       ``(C) to support future capacity building efforts; and
       ``(3) in the form of additional grants to nonprofit 
     professional associations actively involved in forensic 
     science and nationally recognized within the forensic science 
     community to defray the costs of training persons who conduct 
     external audits of laboratories operated by States and units 
     of local government and which participate in the National DNA 
     Index System.
       ``(l) External Audits and Remedial Efforts.--In the event 
     that a laboratory operated by a State or unit of local 
     government which has received funds under this Act, has 
     undergone an external audit conducted in order to demonstrate 
     compliance with standards established by the Director of the 
     Federal Bureau of Investigation, and, as a result of such 
     audit, identifies measures to remedy deficiencies with 
     respect to the compliance by the laboratory with such 
     standards, the State or unit of local government shall 
     implement any such remediation as soon as practicable.''.

     SEC. 103. EXPANSION OF COMBINED DNA INDEX SYSTEM.

       (a) Inclusion of All DNA Samples From States.--Section 
     210304 of the DNA Identification Act of 1994 (42 U.S.C. 
     14132) is amended--
       (1) in subsection (a)(1), by striking ``of persons 
     convicted of crimes;'' and inserting the following: ``of--
       ``(A) persons convicted of crimes; and
       ``(B) other persons whose DNA samples are collected under 
     applicable legal authorities;''; and
       (2) by striking subsection (d).
       (b) Felons Convicted of Federal Crimes.--Section 3(d) of 
     the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C. 
     14135a(d)) is amended to read as follows:
       ``(d) Qualifying Federal Offenses.--The offenses that shall 
     be treated for purposes of this section as qualifying Federal 
     offenses are the following offenses, as determined by the 
     Attorney General:
       ``(1) Any felony.
       ``(2) Any offense under chapter 109A of title 18, United 
     States Code.
       ``(3) Any crime of violence (as that term is defined in 
     section 16 of title 18, United States Code).
       ``(4) Any attempt or conspiracy to commit any of the 
     offenses in paragraphs (1) through (3).''.
       (c) Military Offenses.--Section 1565 of title 10, United 
     States Code, is amended--
       (1) by amending subsection (d) to read as follows:
       ``(d) Qualifying Military Offenses.--The offenses that 
     shall be treated for purposes of this section as qualifying 
     military offenses are the following offenses, as determined 
     by the Secretary of Defense, in consultation with the 
     Attorney General:
       ``(1) Any offense under the Uniform Code of Military 
     Justice for which a sentence of confinement for more than one 
     year may be imposed.
       ``(2) Any other offense under the Uniform Code of Military 
     Justice that is comparable to a qualifying Federal offense 
     (as determined under section 3(d) of the DNA Analysis Backlog 
     Elimination Act of 2000 (42 U.S.C. 14135a(d)).'';
       (2) by striking subsection (e); and
       (3) by redesignating subsection (f) as subsection (e).
       (d) Collection of DNA Identification Information From 
     Persons Arrested For Qualifying Federal Offenses.--
       (1) In general.--Section 3 of the DNA Analysis Backlog 
     Elimination Act of 2000 (42 U.S.C. 14135a) is amended--
       (A) in subsection (a)--
       (i) in paragraph (1), by striking ``The Director'', and 
     inserting the following:
       ``(A) The Attorney General shall collect a DNA sample from 
     each individual who is arrested for, or accused by 
     information or indictment of, a qualifying Federal offense 
     (as determined under subsection (d)). The Attorney General 
     may delegate this function within the Department of Justice 
     as provided in section 510 of title 28, United States Code, 
     and may also authorize and direct any other agency that makes 
     arrests for such offenses or supervises persons facing 
     charges of such offenses to carry out any function and 
     exercise any power of the Attorney General under this 
     section.
       ``(B) The Director''; and
       (ii) in paragraphs (3) and (4), by striking ``Director of 
     the Bureau of Prisons'' each place it appears and inserting 
     ``Attorney General, the Director of the Bureau of Prisons,''; 
     and
       (B) in subsection (b), by striking ``Director of the Bureau 
     of Prisons'' and inserting ``Attorney General, the Director 
     of the Bureau of Prisons,''.
       (2) Conditions of release.--
       (A) Section 3142 amendments.--Subsections (b) and (c)(1)(A) 
     of section 3142 of title 18, United States Code, are each 
     amended by inserting ``and subject to the condition that the 
     person cooperate in the collection of a DNA sample from the 
     person if the collection of such a sample is authorized 
     pursuant to section 3 of the DNA Analysis Backlog Elimination 
     Act of 2000 (42 U.S.C. 14135a)'' after ``period of release''.
       (B) Backlog elimination act amendment.--Section 7(d) of the 
     DNA Analysis

[[Page 27228]]

     Backlog Elimination Act of 2000 (42 U.S.C. 14135c) is amended 
     by inserting ``, or on release under chapter 207 of title 18, 
     United States Code,'' before ``is authorized''.

     SEC. 104. TOLLING OF STATUTE OF LIMITATIONS.

       (a) In General.--Chapter 213 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 3297. Cases involving DNA evidence

       ``In a case in which DNA testing implicates a person in the 
     commission of a felony, no statute of limitations that would 
     otherwise preclude prosecution of the offense shall preclude 
     such prosecution until a period of time following the 
     implication of the person by DNA testing has elapsed that is 
     equal to the otherwise applicable limitation period.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     213 of title 18, United States Code, is amended by adding at 
     the end the following:

``3297. Cases involving DNA evidence.''.

       (c) Application.--The amendments made by this section shall 
     apply to the prosecution of any offense committed before, on, 
     or after the date of the enactment of this section to the 
     full extent permitted by the Constitution.

     SEC. 105. LEGAL ASSISTANCE FOR VICTIMS OF VIOLENCE.

       Section 1201 of the Violence Against Women Act of 2000 (42 
     U.S.C. 3796gg-6) is amended--
       (1) in subsection (a), by inserting ``dating violence,'' 
     after ``domestic violence,'';
       (2) in subsection (b)--
       (A) by redesignating paragraphs (1) through (3) as 
     paragraphs (2) through (4), respectively;
       (B) by inserting before paragraph (2), as redesignated by 
     subparagraph (A), the following:
       ``(1) Dating violence.--The term `dating violence' means 
     violence committed by a person who is or has been in a social 
     relationship of a romantic or intimate nature with the 
     victim. The existence of such a relationship shall be 
     determined based on a consideration of--
       ``(A) the length of the relationship;
       ``(B) the type of relationship; and
       ``(C) the frequency of interaction between the persons 
     involved in the relationship.''; and
       (C) in paragraph (3), as redesignated by subparagraph (A), 
     by inserting ``dating violence,'' after ``domestic 
     violence,'';
       (3) in subsection (c)--
       (A) in paragraph (1)--
       (i) by inserting ``, dating violence,'' after ``between 
     domestic violence''; and
       (ii) by inserting ``dating violence,'' after ``victims of 
     domestic violence,'';
       (B) in paragraph (2), by inserting ``dating violence,'' 
     after ``domestic violence,''; and
       (C) in paragraph (3), by inserting ``dating violence,'' 
     after ``domestic violence,'';
       (4) in subsection (d)--
       (A) in paragraph (1), by inserting ``, dating violence,'' 
     after ``domestic violence'';
       (B) in paragraph (2), by inserting ``, dating violence,'' 
     after ``domestic violence'';
       (C) in paragraph (3), by inserting ``, dating violence,'' 
     after ``domestic violence''; and
       (D) in paragraph (4), by inserting ``dating violence,'' 
     after ``domestic violence,'';
       (5) in subsection (e), by inserting ``dating violence,'' 
     after ``domestic violence,''; and
       (6) in subsection (f)(2)(A), by inserting ``dating 
     violence,'' after ``domestic violence,''.

     SEC. 106. ENSURING PRIVATE LABORATORY ASSISTANCE IN 
                   ELIMINATING DNA BACKLOG.

       Section 2(d)(3) of the DNA Analysis Backlog Elimination Act 
     of 2000 (42 U.S.C. 14135(d)(3)) is amended to read as 
     follows:
       ``(3) Use of vouchers or contracts for certain purposes.--
       ``(A) In general.--A grant for the purposes specified in 
     paragraph (1), (2), or (5) of subsection (a) may be made in 
     the form of a voucher or contract for laboratory services, 
     even if the laboratory makes a reasonable profit for the 
     services.
       ``(B) Redemption.--A voucher or contract under subparagraph 
     (A) may be redeemed at a laboratory operated on a non-profit 
     or for-profit basis by a private entity that satisfies 
     quality assurance standards and has been approved by the 
     Attorney General.
       ``(C) Payments.--The Attorney General may use amounts 
     authorized under subsection (j) to make payments to a 
     laboratory described under subparagraph (B).''.

            TITLE II--DNA SEXUAL ASSAULT JUSTICE ACT OF 2003

     SEC. 201. SHORT TITLE.

       This title may be cited as the ``DNA Sexual Assault Justice 
     Act of 2003''.

     SEC. 202. ENSURING PUBLIC CRIME LABORATORY COMPLIANCE WITH 
                   FEDERAL STANDARDS.

       Section 210304(b)(2) of the DNA Identification Act of 1994 
     (42 U.S.C. 14132(b)(2)), is amended to read as follows:
       ``(2) prepared by laboratories that--
       ``(A) not later than 2 years after the date of enactment of 
     the DNA Sexual Assault Justice Act of 2003, have been 
     accredited by a nonprofit professional association of persons 
     actively involved in forensic science that is nationally 
     recognized within the forensic science community; and
       ``(B) undergo external audits, not less than once every 2 
     years, that demonstrate compliance with standards established 
     by the Director of the Federal Bureau of Investigation; 
     and''.

     SEC. 203. DNA TRAINING AND EDUCATION FOR LAW ENFORCEMENT, 
                   CORRECTIONAL PERSONNEL, AND COURT OFFICERS.

       (a) In General.--The Attorney General shall make grants to 
     provide training, technical assistance, education, and 
     information relating to the identification, collection, 
     preservation, analysis, and use of DNA samples and DNA 
     evidence by--
       (1) law enforcement personnel, including police officers 
     and other first responders, evidence technicians, 
     investigators, and others who collect or examine evidence of 
     crime;
       (2) court officers, including State and local prosecutors, 
     defense lawyers, and judges;
       (3) forensic science professionals; and
       (4) corrections personnel, including prison and jail 
     personnel, and probation, parole, and other officers involved 
     in supervision.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated $12,500,000 for each of the fiscal years 
     2004 through 2008 to carry out this section.

     SEC. 204. SEXUAL ASSAULT FORENSIC EXAM PROGRAM GRANTS.

       (a) In General.--The Attorney General shall make grants to 
     eligible entities to provide training, technical assistance, 
     education, equipment, and information relating to the 
     identification, collection, preservation, analysis, and use 
     of DNA samples and DNA evidence by medical personnel and 
     other personnel, including doctors, medical examiners, 
     coroners, nurses, victim service providers, and other 
     professionals involved in treating victims of sexual assault 
     and sexual assault examination programs, including SANE 
     (Sexual Assault Nurse Examiner), SAFE (Sexual Assault 
     Forensic Examiner), and SART (Sexual Assault Response Team).
       (b) Eligible Entity.--For purposes of this section, the 
     term ``eligible entity'' includes--
       (1) States;
       (2) units of local government; and
       (3) sexual assault examination programs, including--
       (A) sexual assault nurse examiner (SANE) programs;
       (B) sexual assault forensic examiner (SAFE) programs;
       (C) sexual assault response team (SART) programs; and
       (D) State sexual assault coalitions.
       (c) Authorization of Appropriations.--There are authorized 
     to be appropriated $30,000,000 for each of the fiscal years 
     2004 through 2008 to carry out this section.

     SEC. 205. DNA RESEARCH AND DEVELOPMENT.

       (a) Improving DNA Technology.--The Attorney General shall 
     make grants for research and development to improve forensic 
     DNA technology, including increasing the identification 
     accuracy and efficiency of DNA analysis, decreasing time and 
     expense, and increasing portability.
       (b) Demonstration Projects.--The Attorney General shall 
     conduct research through grants for demonstration projects 
     involving coordinated training and commitment of resources to 
     law enforcement agencies and key criminal justice 
     participants to demonstrate and evaluate the use of forensic 
     DNA technology in conjunction with other forensic tools. The 
     demonstration projects shall include scientific evaluation of 
     the public safety benefits, improvements to law enforcement 
     operations, and cost-effectiveness of increased collection 
     and use of DNA evidence.
       (c) National Forensic Science Commission.--
       (1) Appointment.--The Attorney General shall appoint a 
     National Forensic Science Commission (in this section 
     referred to as the ``Commission''), composed of persons 
     experienced in criminal justice issues, including persons 
     from the forensic science and criminal justice communities, 
     to carry out the responsibilities under paragraph (2).
       (2) Responsibilities.--The Commission shall--
       (A) assess the present and future resource needs of the 
     forensic science community;
       (B) make recommendations to the Attorney General for 
     maximizing the use of forensic technologies and techniques to 
     solve crimes and protect the public;
       (C) identify potential scientific advances that may assist 
     law enforcement in using forensic technologies and techniques 
     to protect the public;
       (D) make recommendations to the Attorney General for 
     programs that will increase the number of qualified forensic 
     scientists available to work in public crime laboratories;
       (E) disseminate, through the National Institute of Justice, 
     best practices concerning the collection and analyses of 
     forensic evidence to help ensure quality and consistency in 
     the use of forensic technologies and techniques to solve 
     crimes and protect the public;
       (F) examine additional issues pertaining to forensic 
     science as requested by the Attorney General;
       (G) examine Federal, State, and local privacy protection 
     statutes, regulations, and

[[Page 27229]]

     practices relating to access to, or use of, stored DNA 
     samples or DNA analyses, to determine whether such 
     protections are sufficient;
       (H) make specific recommendations to the Attorney General, 
     as necessary, to enhance the protections described in 
     subparagraph (G) to ensure--
       (i) the appropriate use and dissemination of DNA 
     information;
       (ii) the accuracy, security, and confidentiality of DNA 
     information;
       (iii) the timely removal and destruction of obsolete, 
     expunged, or inaccurate DNA information; and
       (iv) that any other necessary measures are taken to protect 
     privacy; and
       (I) provide a forum for the exchange and dissemination of 
     ideas and information in furtherance of the objectives 
     described in subparagraphs (A) through (H).
       (3) Personnel; procedures.--The Attorney General shall--
       (A) designate the Chair of the Commission from among its 
     members;
       (B) designate any necessary staff to assist in carrying out 
     the functions of the Commission; and
       (C) establish procedures and guidelines for the operations 
     of the Commission.
       (d) Authorization of Appropriations.--There are authorized 
     to be appropriated $15,000,000 for each of the fiscal years 
     2004 through 2008 to carry out this section.

     SEC. 206. FBI DNA PROGRAMS.

       (a) Authorization of Appropriations.--There are authorized 
     to be appropriated to the Federal Bureau of Investigation 
     $42,100,000 for each of the fiscal years 2004 through 2008 to 
     carry out the DNA programs and activities described under 
     subsection (b).
       (b) Programs and Activities.--The Federal Bureau of 
     Investigation may use any amounts appropriated pursuant to 
     subsection (a) for--
       (1) nuclear DNA analysis;
       (2) mitochondrial DNA analysis;
       (3) regional mitochondrial DNA laboratories;
       (4) the Combined DNA Index System;
       (5) the Federal Convicted Offender DNA Program; and
       (6) DNA research and development.

     SEC. 207. DNA IDENTIFICATION OF MISSING PERSONS.

       (a) In General.--The Attorney General shall make grants to 
     promote the use of forensic DNA technology to identify 
     missing persons and unidentified human remains.
       (b) Authorization of Appropriations.--There are authorized 
     to be appropriated $2,000,000 for each of the fiscal years 
     2004 through 2008 to carry out this section.

     SEC. 208. ENHANCED CRIMINAL PENALTIES FOR UNAUTHORIZED 
                   DISCLOSURE OR USE OF DNA INFORMATION.

       Section 10(c) of the DNA Analysis Backlog Elimination Act 
     of 2000 (42 U.S.C. 14135e(c)) is amended to read as follows:
       ``(c) Criminal Penalty.--A person who knowingly discloses a 
     sample or result described in subsection (a) in any manner to 
     any person not authorized to receive it, or obtains or uses, 
     without authorization, such sample or result, shall be fined 
     not more than $100,000. Each instance of disclosure, 
     obtaining, or use shall constitute a separate offense under 
     this subsection.''.

     SEC. 209. TRIBAL COALITION GRANTS.

       Section 2001 of title I of the Omnibus Crime Control and 
     Safe Streets Act of 1968 (42 U.S.C. 3796gg) is amended by 
     adding at the end the following:
       ``(d) Tribal Coalition Grants.--
       ``(1) Purpose.--The Attorney General shall award grants to 
     tribal domestic violence and sexual assault coalitions for 
     purposes of--
       ``(A) increasing awareness of domestic violence and sexual 
     assault against Indian women;
       ``(B) enhancing the response to violence against Indian 
     women at the tribal, Federal, and State levels; and
       ``(C) identifying and providing technical assistance to 
     coalition membership and tribal communities to enhance access 
     to essential services to Indian women victimized by domestic 
     and sexual violence.
       ``(2) Grants to tribal coalitions.--The Attorney General 
     shall award grants under paragraph (1) to--
       ``(A) established nonprofit, nongovernmental tribal 
     coalitions addressing domestic violence and sexual assault 
     against Indian women; and
       ``(B) individuals or organizations that propose to 
     incorporate as nonprofit, nongovernmental tribal coalitions 
     to address domestic violence and sexual assault against 
     Indian women.
       ``(3) Eligibility for other grants.--Receipt of an award 
     under this subsection by tribal domestic violence and sexual 
     assault coalitions shall not preclude the coalition from 
     receiving additional grants under this title to carry out the 
     purposes described in subsection (b).''.

     SEC. 210. EXPANSION OF PAUL COVERDELL FORENSIC SCIENCES 
                   IMPROVEMENT GRANT PROGRAM.

       (a) Forensic Backlog Elimination Grants.--Section 2804 of 
     the Omnibus Crime Control and Safe Streets Act of 1968 (42 
     U.S.C. 3797m) is amended--
       (1) in subsection (a)--
       (A) by striking ``shall use the grant to carry out'' and 
     inserting ``shall use the grant to--
       ``(1) carry out'';
       (B) by striking the period at the end and inserting a 
     semicolon; and
       (C) by adding at the end the following:
       ``(2) eliminate a backlog in the analysis of forensic 
     science evidence, including firearms examination, latent 
     prints, toxicology, controlled substances, forensic 
     pathology, questionable documents, and trace evidence; and
       ``(3) train, assist, and employ forensic laboratory 
     personnel, as needed, to eliminate a forensic evidence 
     backlog.'';
       (2) in subsection (b), by striking ``under this part'' and 
     inserting ``for the purpose set forth in subsection (a)(1)''; 
     and
       (3) by adding at the end the following:
       ``(e) Defined Term.--As used in this section, the term 
     `forensic evidence backlog' means forensic evidence that--
       ``(1) has been stored in a laboratory, medical examiner's 
     office, or coroner's office; and
       ``(2) has not been subjected to all appropriate forensic 
     testing because of a lack of resources or personnel.''.
       (b) External Audits.--Section 2802 of the Omnibus Crime 
     Control and Safe Streets Act of 1968 (42 U.S.C. 3797k) is 
     amended--
       (1) in paragraph (2), by striking the ``and'' at the end;
       (2) in paragraph (3), by striking the period at the end and 
     inserting ``; and''; and
       (3) by adding at the end the following:
       ``(4) a certification that a government entity exists and 
     an appropriate process is in place to conduct independent 
     external investigations into allegations of serious 
     negligence or misconduct substantially affecting the 
     integrity of the forensic results committed by employees or 
     contractors of any forensic laboratory system, medical 
     examiner's office, or coroner's office in the State that will 
     receive a portion of the grant amount.''.
       (c) Three-Year Extension of Authorization of 
     Appropriations.--Section 1001(a) of the Omnibus Crime Control 
     and Safe Streets Act of 1968 (42 U.S.C. 3793(a)) is amended 
     by striking paragraph (24) and inserting the following:--
       ``(24) There are authorized to be appropriated to carry out 
     part BB of this Act, to remain available until expended--
       ``(A) $35,000,000 for fiscal year 2004;
       ``(B) $85,400,000 for fiscal year 2005;
       ``(C) $134,733,000 for fiscal year 2006;
       ``(D) $128,067,000 for fiscal year 2007;
       ``(E) $56,733,000 for fiscal year 2008; and
       ``(F) $42,067,000 for fiscal year 2009.''.

     SEC. 211. CREATION OF NEW FORENSIC BACKLOG ELIMINATION GRANT 
                   PROGRAM.

       (a) Grants Authorized.--The Attorney General is authorized 
     to award grants to States, units of local government, and 
     tribal governments to eliminate forensic science backlogs.
       (b) Purpose.--The purpose of the grant program established 
     under this section is to--
       (1) eliminate the backlog in the analysis of any area of 
     forensic science evidence, including firearms examination, 
     latent prints, toxicology, controlled substances, forensic 
     pathology, questionable documents, and trace evidence; and
       (2) train, assist, and employ forensic laboratory personnel 
     as needed to eliminate a forensic evidence backlog.
       (c) Use of Funds.--
       (1) Supplanting prohibited.--Grant funds made available to 
     applicants under this section shall be used to supplement and 
     not supplant other Federal or State funds.
       (2) Administrative costs.--An applicant may use not more 
     than 5 percent of the funds received through grants awarded 
     under this section for administrative costs.
       (d) Application.--
       (1) In general.--A State, local government, or tribal 
     government desiring a grant under this section, shall submit 
     to the Attorney General an application in such form and 
     containing such information as the Attorney General may 
     require.
       (2) Assurances and certification.--The application 
     submitted under paragraph (1) shall--
       (A) provide assurances that the applicant has implemented, 
     or will implement not later than 120 days after the 
     submission date of such application, a comprehensive plan for 
     the expeditious analysis of the forensic evidence currently 
     backlogged; and
       (B) certify that the forensic science laboratory--
       (i) employs generally accepted practices and procedures; 
     and
       (ii) is accredited by the Laboratory Accreditation Board of 
     the American Society of Crime Laboratory Directors or the 
     National Association of Medical Examiners or any other 
     nonprofit professional organization that may be recognized 
     within the forensic science community as competent to award 
     such accreditation.
       (e) Defined Term.--As used in this section, the term 
     ``forensic evidence backlog'' means--
       (1) particular forensic evidence has been admitted to the 
     laboratory faster than it can be analyzed; or
       (2) pertinent testing has been curtailed or not performed 
     due to lack of resources.
       (f) Authorization of Appropriations.--There are authorized 
     to be appropriated to

[[Page 27230]]

     the Attorney General $20,000,000 for each of the fiscal years 
     2005 through 2009 for grants under this section.

     SEC. 212. REPORT TO CONGRESS.

       (a) In General.--Not later than 2 years after the date of 
     enactment of this Act, the Attorney General shall submit to 
     Congress a report on the implementation of this Act.
       (b) Contents.--The report submitted under subsection (a) 
     shall include a description of--
       (1) the progress made by Federal, State, and local entities 
     in--
       (A) collecting and entering DNA samples from offenders 
     convicted of qualifying offenses for inclusion in the 
     Combined DNA Index System (referred to in this subsection as 
     ``CODIS'');
       (B) analyzing samples from crime scenes, including evidence 
     collected from sexual assaults and other serious violent 
     crimes, and entering such DNA analyses in CODIS; and
       (C) increasing the capacity of forensic laboratories to 
     conduct DNA analyses;
       (2) the priorities and plan for awarding grants among 
     eligible States and units of local government to ensure that 
     the purposes of this Act are carried out;
       (3) the distribution of grant amounts under this Act among 
     eligible States and local governments, and whether the 
     distribution of such funds has served the purposes of the 
     Debbie Smith DNA Backlog Grant Program;
       (4) grants awarded and the use of such grants by eligible 
     entities for DNA training and education programs for law 
     enforcement, correctional personnel, court officers, medical 
     personnel, victim service providers, and other personnel 
     authorized under sections 203 and 204;
       (5) grants awarded and the use of such grants by eligible 
     entities to conduct DNA research and development programs to 
     improve forensic DNA technology, and implement demonstration 
     projects under section 205;
       (6) the steps taken to establish the National Forensic 
     Science Commission, and the activities of the Commission 
     under section 205(c);
       (7) the use of funds by the Federal Bureau of Investigation 
     under section 206;
       (8) grants awarded and the use of such grants by eligible 
     entities to promote the use of forensic DNA technology to 
     identify missing persons and unidentified human remains under 
     section 207;
       (9) grants awarded and the use of such grants by eligible 
     entities to eliminate forensic science backlogs under 
     sections 210 and 211; and
       (10) any other matters considered relevant by the Attorney 
     General.
                                  ____



                            Criminal Justice Legal Foundation,

                                 Sacramento, CA, November 5, 2003.
     Hon. Jon Kyl,
     U.S. Senate,
     Washington, DC.
       Dear Mr. Kyl: Recently, the Judiciary Committee approved 
     H.R. 3214, the ``Advancing Justice Through DNA Technology Act 
     of 2003.'' Although the goals of this bill are laudable, one 
     provision in particular is extremely ill-considered, and it 
     will actually operate to obstruct the system rather than 
     improve it. Section 321 should be deleted from the bill.
       Section 321 authorizes grants ``for the purpose of 
     improving the quality of legal representation provided to 
     indigent defendants in State capital cases.'' That is 
     certainly a worthy purpose, but this bill will not achieve 
     it. Instead, it is a giant step backward in the direction of 
     the discredited ``resource centers'' which Congress defunded 
     years ago, after finding that they had become taxpayer-funded 
     nests of saboteurs.
       A condition for the grant is that a state establish an 
     ``effective system'' for capital representation. However, 
     ``effective system'' is nonsensically defined as one that 
     removes the authority to appoint trial counsel from the trial 
     judge and gives it to a central authority composed of capital 
     defense lawyers.
       We saw with the ``resource centers'' how these capital 
     representation organizations were invariably staffed by hard-
     core, anti-death-penalty fanatics who saw it as their mission 
     to bring the system to a screeching halt. In an unusual 
     moment of candor, the head of one of the resource centers 
     wrote in a published article that it was the duty of the 
     lawyer to file motions just to ``make trouble,'' Lyon, 
     Defending the Capital Case: What Makes Death Different? 42 
     Mercer L. Rev. 695, 700 (1991). Such conduct is, of course, 
     clearly unethical. In 1996, Congress finally woke up to what 
     was being done with taxpayer money and defunded the resource 
     centers.
       Appointment authority is one of the few checks available 
     against unethical conduct by defense lawyers. The attorney 
     discipline system is toothless. The prosecution cannot appeal 
     on defense misconduct, the way the defense does on prosecutor 
     misconduct. The trial judge's refusal to appoint lawyers who 
     are notorious for obstructionism and other unethical behavior 
     is the most effective deterrent. To remove the appointment 
     authority to an entity full of people who actually encourage 
     such misconduct is a recipe for chaos.
       Congress has not removed the appointment authority from 
     federal district judges, for good reason. A number of states 
     have recently implemented improvements to their capital 
     representation systems. These reforms have taken different 
     shapes in different states, as is appropriate for a federal 
     system. Instead of evaluating the different approaches to see 
     which one works best in the real world, section 321 would 
     declare most, if not all, of them ``ineffective,'' and deny 
     defense grants to states that have chosen a different and 
     possibly better path. Section 326 effectively makes a state 
     ineligible for the prosecution grants if it chooses not to 
     change its appointment system to qualify for the defense 
     grants.
       Congress should not mandate a single solution without the 
     most careful consideration of the reforms the states have 
     already enacted. The problem of effective counsel is a 
     complex one. It requires more study and more debate before 
     Congress endorses a particular solution. Section 321 of H.R. 
     3214 is half-baked, and it should be deleted.
           Sincerely,
                                              Kent S. Scheidegger,
     Legal Director.
                                  ____


              [From National Review Online, Oct. 29, 2003]

  Protection Racket--Congress Prepares To Fund the Anti-Death-Penalty 
                                 Lobby

                          (By Ramesh Ponnuru)

       Why is a Republican Congress considering a bill to fund 
     anti-death-penalty activists? A bill that could result in 
     murderers going free? A bill that was initially introduced to 
     hurt George W. Bush? Beats me. But that's exactly what 
     Congress is doing.
       In early 2000, Democrats were portraying George W. Bush's 
     Texas as a third-world hellhole where the water was dirty, 
     the churches were filled with guns, and the streets ran red 
     with blood of unlucky defendants. A few anecdotes in which 
     public defenders really had been lax in capital murder cases 
     were extrapolated into a critique of law enforcement in the 
     state. At around this time, Senator Patrick Leahy of Vermont 
     and Representative William Delahunt of Massachusetts, both 
     Democrats, introduced the ``Innocence Protection Act.'' 
     Supposedly, the bill was going to keep innocents from getting 
     put on death row by, among other things, providing for better 
     legal defenses for accused capital murderers.
       In a modified form, the bill has been made part of the 
     ``Advancing Justice Through DNA Technology Act of 2003.'' 
     Sponsors of the bill include Orrin Hatch and James 
     Sensenbrenner, the chairmen of the House and Senate judiciary 
     committees. The House Judiciary Committee voted for the bill 
     28-1. Conservative Jeff Flake was the only dissenter.
       There are two major problems with the bill. First, its low 
     standard for requiring new trials makes it likely that 
     murderers will go free. The bill says that federal prisoners 
     have a right to a new trial if a DNA test ``establish[es] by 
     a preponderance of evidence that a new trial would result in 
     acquittal.'' This standard is very different from a 
     requirement that the DNA test establish that the prisoner 
     probably did not commit the crime. DNA at a murder scene can, 
     of course, come from a variety of sources. It may be that the 
     jury in the original trial, faced with a negative DNA result, 
     would have found the defendant guilty anyway based on other 
     evidence. But witnesses die and evidence deteriorates. Wait 
     long enough to get a DNA test, and a new trial may be 
     unlikely to yield a conviction even if the defendant actually 
     committed the crime. The ``result in acquittal'' standard is 
     used to allow new trials based on new evidence--but only 
     within three years of the original trial. This bill has no 
     such time limit. The result is not a reduced sentence, but 
     the defendant's walking.
       The second problem is that the bill bribes states to give 
     up control of their public-defender systems. Essentially, the 
     bill would funnel taxpayer dollars to the ``capital resource 
     centers'' that Congress defunded in 1996, having found 
     that they frequently abused the appeals process. (See 
     pages 53-57 of this report for a long list of examples of 
     such abuses.) Abuses would be likely since state courts, 
     and other branches of state and local government, would no 
     longer have supervisory authority over publicly funded 
     defense counsel. Indeed, supporters of the Innocence 
     Protection Act have been positively enthusiastic about one 
     form of abuse. When Leahy ran the Judiciary Committee last 
     year, it issued a report that said that capital resource 
     centers ``may legitimately assert a large number of 
     claims'' based on a ``reversal of existing law.'' In other 
     words, it's legitimate for tax-funded public defenders to 
     file a ``large number of claims'' that are precluded by 
     current law.
       Is federal intervention necessary? States have been busy 
     reforming their own capital- defense systems. But the same 
     Leahy report mentioned earlier identified five cases in which 
     ineffective counsel had led innocent people to be sentenced 
     to death. But as the dissenting Republican report pointed 
     out, the five cases Leahy discussed established no such 
     thing. In one of the cases, the defendent was never actually 
     sentenced to death. In three of the cases, it is not at all 
     clear that the defendant was innocent. (Prosecutors declined 
     to retry them because evidence had deteriorated. In one case, 
     for example, the building in which the murder took place had

[[Page 27231]]

     been demolished.) The cases are marked more, in any case, by 
     prosecutorial misconduct than by sloppy defenses.
       That's true, by the way, of cases in which actually 
     innocent people have been put on death row. It has generally 
     been because prosecutors relied too much on unreliable 
     evidence, such as the testimony of jailhouse informants, or 
     because police and prosecutors acted in grossly improper 
     ways. (Say hello to our friends in Cook County.) When 
     prosecutors suppress evidence, the most competent defense 
     attorneys will be at a disadvantage. The Innocence Protection 
     Act's capital-defense provisions will not ameliorate that 
     problem. But then, it's more about funneling tax money to 
     opponents of the death penalty than springing truly innocent 
     people from death row.
       ``What's disgusting is we're actually wasting time fighting 
     this in a Republican Congress,'' says one Republican Senate 
     staffer.
                                 ______
                                 
      By Mr. CORNYN:
  S.J. Res. 23. A joint resolution proposing an amendment to the 
Constitution of the United States providing for the event that one-
fourth of the members of either the House of Representatives or the 
Senate are killed or incapacitated; to the Committee on the Judiciary

                              S.J. Res. 23

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled, That the 
     following article is proposed as an amendment to the 
     Constitution of the United States, which shall be valid to 
     all intents and purposes as part of the Constitution when 
     ratified by the legislatures of three-fourths of the several 
     States:

                              ``Article--

       ``The Congress may by law provide for the case of death or 
     inability of members of the House of Representatives, and the 
     case of inability of members of the Senate, in the event that 
     one-fourth of either House are killed or incapacitated, 
     declaring who shall serve until the disability is removed, or 
     a new member is elected. Any procedures established pursuant 
     to such a law shall expire not later than 120 days after the 
     death or inability of one-fourth of the House of 
     Representatives or the Senate, but may be extended for 
     additional 120-day periods if one-fourth of either the House 
     of Representatives or the Senate remains vacant or occupied 
     by members unable to serve.''.

                          ____________________