[Congressional Record (Bound Edition), Volume 150 (2004), Part 5]
[Senate]
[Pages 5716-5719]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. HATCH (for himself, Mr. Chambliss, Mr. Allen, Mr. Gregg, 
        Ms. Collins, Ms. Murkowski, Mr. Warner, and Mr. Thomas):
  S. 2258. A bill to revise certain requirements for H-2B employers for 
fiscal year 2004, and for other purposes; to the Committee on the 
Judiciary.
  Mr. HATCH. Mr. President, I rise today to introduce the Summer 
Operations and Services or ``SOS'' Relief and Reform Act, S. 2258.
  Across our Nation, there are businesses, many of which are small, 
which look forward to the summer time each year as an opportunity to 
conduct their seasonal operations. From Utah to Alaska to New England 
and down to the Southern States, innkeepers, swimming pool operators, 
and fishermen rely on the income generated during the summer months to 
feed their families, employ their neighbors, and contribute to their 
local economies. Individually, these businesses may not be big 
operations, but collectively, they are an integral part of the American 
economy.
  Because of the nature of our country's labor market, and perhaps 
because of the unattractiveness of seasonal versus permanent work, 
these operations have traditionally relied upon the H-2B visa program 
to bring needed workers from abroad. For those who may not understand 
the purpose for this program, let me explain it. An employer is only 
allowed to request an H-2B worker when no American worker is available 
for the same job. An employer is not allowed to pay lower wages to 
these foreign visa holders. Throughout our immigration history, the H-
2B program has remained noncontroversial.
  This year, perhaps as a sign of our economy's increasing vitality, 
the H-2B annual cap of 66,000 visas has already been reached. 
Meanwhile, small businesses across the country warn that if Congress 
does not make some sort of accommodation, they stand to suffer 
immeasurable losses. Failing to act would not only be detrimental to 
these small businessowners, many of whom simply cannot afford to lose 
an entire year's worth of profit, but would hurt the Americans whose 
jobs also depend on the stability of these businesses. The negative 
impact upon the hospitality and tourism sectors would be severe as 
well. In other words, unless we act quickly and give these seasonal 
operations the resources they need, we are facing a very bleak summer 
for many hard-working Americans and entrepreneurs.
  That said, as much as I want to do all that I can to save this summer 
of seasonal work, I also want to make sure that in our haste, we do not 
establish unsound policy and set a bad precedent for the future. Many 
immigration reformists oppose increasing numbers in any immigration 
program. I oppose simply raising the numbers indiscriminately. Instead, 
what we need is a program that is tied to the realities of our economy 
and our job market. The reform I propose in ``SOS'' will bring us 
closer to this ultimate goal.
  Specifically, S. 2258 does not raise the visa cap number. Instead, it 
exempts those who were admitted on an H-2B visa during the past 2 
fiscal years from the cap for the remainder of this year. This is a 
good reform approach for several reasons: First, the number of actual 
workers admitted will be dictated by the strength of the economy, and 
not by a random number that resulted from political compromise. Second, 
it gives preferential treatment to those who have used the program 
before, and who have complied with the law and returned to their home 
countries at the end of the season. Third and finally, it would allow 
the Secretary of Homeland Security to delegate to the Secretary of 
Labor the specific as well as inherent authority to investigate 
fraudulent immigration and employment practices. No immigration reform 
can be complete without addressing that issue. Of course, this bill 
does not represent all of the reforms that are needed, but is it a step 
in the right direction, while providing immediate relief for our 
seasonal businesses.
  I thank Chairman Chambliss of the Judiciary Committee's Immigration 
Subcommittee for his valuable input and for being our lead cosponsor on 
this bill. I also want to thank the administration for its contribution 
and expertise in reforming the H-2B visa program in an administratively 
feasible manner. Finally, I would be remiss if I did not recognize the 
contribution made by the other original cosponsors, Senators Allen, 
Gregg, Collins, Murkowski, Warner, and Thomas.
  Let me conclude by emphasizing that without our immediate attention 
to this pressing problem, local economies will face substantial losses. 
Let us work together to prioritize the health of America's seasonal 
businesses, and safeguard the livelihood of all the people who depend 
on them. I ask my colleagues for their bipartisan cooperation in the 
timely passage of this bill.
                                 ______
                                 
      By Mr. DORGAN (for himself, Mr. Bennett, and Mr. Conrad):
  S. 2259. A bill to provide for the protection of the flag of the 
United States, and for other purposes; to the Committee on the 
Judiciary.
  Mr. DORGAN. Mr. President, 15 years ago the U.S. Supreme Court, in a 
5 to 4 decision, struck down a Texas flag protection statute. The 
Supreme Court ruled that burning an American flag was a form of 
``speech,'' and therefore protected under the first amendment of the 
Constitution.
  I disagreed with the Court's decisions then and I still do. I don't 
believe that the act of desecrating a flag is an act of speech. And I 
believe that our flag, as our national symbol, can and should be 
protected by law.
  In the intervening years since the Supreme Court decision, I have 
supported Federal legislation that would make flag desecration illegal. 
Yet on several occasions, I have also voted against amendments to the 
Constitution to do the same.
  I voted that way because, while I believe that flag desecration is 
despicable conduct that should be prohibited by law, I also believe 
that amending our Constitution is a step that should be taken only 
rarely, and then only as a last resort.
  In the past year I have once again reviewed in detail nearly all of 
the legal opinions and written materials published by constitutional 
scholars and courts on all sides of this issue. After that review, I 
have concluded that there remains a way to protect our flag without 
having to alter the Constitution of the United States. So I am joining 
Senator Bennett today to introduce bipartisan legislation that 
accomplishes that goal.
  The bill we introduce today protects the flag but does so without 
altering the Constitution. A number of respected constitutional 
scholars tell us they believe this type of statute will be upheld by 
the U.S. Supreme Court. This statute protects the flag by criminalizing 
flag desecration when its intended purpose is to incite violence.
  I know that supporters of a constitutional amendment will be 
disappointed by my decision to support this statutory remedy to protect 
the flag, rather than support an amendment to the U.S. Constitution. I 
know they are impatient to correct a decision by the Supreme Court that 
they and I believe was wrong.
  I have wrestled with this issue for a long time, and I wish I were 
not, with my decision, disappointing those, including many of my 
friends, who passionately believe that we must amend the Constitution 
to protect the flag. But, in the end, I know that our country will be 
better served reserving our attempts to alter the Constitution only for 
those things that are, in the words of James Madison, ``extraordinary 
occasion.''
  More than 11,000 constitutional amendments have been proposed since 
our Constitution was ratified. However, since the ratification of the 
Bill of Rights in 1791 only 17 amendments have been enacted. These 17 
include 3 reconstruction era amendments that abolished slavery and gave 
African Americans the right to vote.

[[Page 5717]]

  The amendments included giving women the right to vote, limiting 
Presidents to two terms, and establishing an order of succession in 
case of a President's death or departure from office. The last time 
Congress considered and passed a new constitutional amendment was when 
it changed the voting age to 18, more than a quarter of a century ago. 
All of these matters were of such scope they required a constitutional 
amendment to be accomplished. They could not have been accomplished 
otherwise.
  But protecting the American flag can be accomplished without amending 
the Constitution, and that is a critically important point.
  The bill we are introducing today, on a bipartisan basis, outlaws 
three types of illegal flag desecration.
  First, anyone who destroys or damages a U.S. flag with a clear intent 
to incite imminent violence or a breach of the peace may be punished by 
a fine of up to $100,000, or up to 1 year in jail, or both. Second, 
anyone who steals a flag that belongs to the United States and destroys 
or damages that flag may be fined up to $250,000 or imprisoned up to 2 
years, or both. And third, anyone who steals a flag may also be fined 
up to $250,000 or imprisoned up to 2 years, or both.
  Constitutional scholars, including those at the Congressional 
Research Service, the research arm of Congress, and Duke University's 
Professor William Alstyne, have concluded that this statute passes 
constitutional muster, because it recognizes that the same standard 
that already applies to other forms of speech applies to burning the 
flag as well.
  This is the same standard which makes it illegal to falsely cry 
``fire'' in a crowded theater. Reckless speech that is likely to cause 
violence is not protected under the ``fighting words'' standard, long 
recognized by the Supreme Court of the United States.
  So we are offering this bipartisan legislation with the confidence 
that its passage would meaningfully and effectively protect our 
cherished flag.
  I believe that future generations, and our Founding Fathers, would 
agree that it is worthwhile for us to find a way to protect our flag 
without altering the Constitution. And so I ask those colleagues who, 
like me, care deeply about both our flag and our Constitution, to 
support this legislation.
  I ask unanimous consent that the full text of the bill be printed in 
the Record following my remarks.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2259

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Flag Protection Act of 
     2004''.

     SEC. 2. FINDINGS AND PURPOSE.

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

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

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

     ``Sec. 700. Incitement; damage or destruction of property 
       involving the flag of the united states

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

700. Incitement; damage or destruction of property involving the flag 
              of the United States.''
                                 ______
                                 
      By Mr. SANTORUM:
  S. 2260. A bill to amend title XVIII of the Social Security Act to 
provide for fairness in the calculation of medicare disproportionate 
share hospital payments for hospitals in Puerto Rico; to the Committee 
on Finance.
  Mr. SANTORUM. Mr. President, I am introducing today the Medicare DSH 
payments for Puerto Rico Hospitals Fairness Act of 2004. This 
legislation seeks to provide fairness for Puerto Rico hospitals in 
their qualification for disproportionate share payments under the 
Medicare Program.
  The primary purpose of the DSH program is to reimburse hospitals for 
the higher Medicare costs associated with treating low-income Medicare 
patients. Under current law, hospitals providing essential health care 
to low-income Medicare patients in Puerto Rico are effectively denied 
equitable reimbursement, because the law is being applied in such a way 
that a significant portion of the low-income population served by 
Puerto Rico hospitals is not allowed to count toward DSH calculations.
  The legislation that I am introducing today would amend section 
1886(d)(9)(D)(iii) of the Social Security Act to help ensure that 
Puerto Rico's low-income Medicare beneficiaries and hospitals that 
treat them have access to the same health care as the mainland.
  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. 2260

       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 ``Medicare DSH Payments for 
     Puerto Rico Hospitals Fairness Act of 2004''.

     SEC. 2. CALCULATION OF MEDICARE DSH PAYMENTS FOR PPS 
                   HOSPITALS IN PUERTO RICO.

       Section 1886(d)(9)(D)(iii) of the Social Security Act (42 
     U.S.C. 1395ww(d)(9)(D)(iii)) is amended to read as follows:
       ``(iii) Subparagraph (F) (relating to disproportionate 
     share payments), except that for this purpose--
       ``(I) the sum described in clause (ii) of this subparagraph 
     shall be substituted for the sum referred to in paragraph 
     (5)(F)(ii)(I); and
       ``(II) for discharges occurring on or after October 1, 
     2004, subclause (I) of paragraph (5)(F)(vi) shall be applied 
     by substituting for the numerator described in such subclause

[[Page 5718]]

     the number of a subsection (d) Puerto Rico hospital's patient 
     days for a cost reporting period that are made up of patients 
     who (for such days) were entitled to benefits under part A of 
     this title and were recipients of aid under the State plan 
     approved under title XVI that provides for grants to States 
     for aid to the aged, blind, or disabled.''.
                                 ______
                                 
      By Mr. DeWINE (for himself, Mr. Graham of Florida, Mr. Lugar, Mr. 
        Baucus, Mr. Chafee, Mr. Dodd, Mr. Nelson of Florida, Mr. 
        Voinovich, and Mr. Sununu):
  S. 2261. A bill to expand certain preferential trade treatment for 
Haiti; to the Committee on Finance.
  Mr. DeWINE. Mr. President, today we have an opportunity to reach out 
to the least developed country in the Western Hemisphere--we have an 
opportunity to reach out to the island nation of Haiti.
  I am pleased to join Senators Graham of Florida, Lugar, Baucus, 
Chafee, Dodd, Voinovich, and Nelson of Florida in introducing the Haiti 
Economic Opportunity Act of 2004. I also would like to thank 
Representative Shaw, as well as our other House cosponsors, for their 
support of this bill.
  Our bill would use trade incentives to encourage the post-Aristide 
government to make much needed reforms, while encouraging foreign 
direct investment--the most powerful, and yet underutilized, tool of 
development. The bill's provisions apply the least developed country 
provisions of the African Growth and Opportunity Act, AGOA, to Haiti--
the least developed country in our Hemisphere.
  Specifically, our bill would provide duty-free entry to apparel 
articles assembled in Haiti contingent upon Presidential certification 
that the new government is making significant political, economic, and 
social reforms. The bill also caps the amount of duty-free articles at 
1.5 percent of the total amount of U.S. apparel imports, growing to 3.5 
percent over 7 years. Currently, Haiti accounts for less than one-half 
of 1 percent of all U.S. apparel imports, and although these provisions 
seem modest by U.S. standards, in Haiti they are substantial.
  The enactment of this legislation would promote employment in Haitian 
industry by allowing Haiti to become a garment production center again. 
Haiti has a labor advantage that makes it competitive compared to other 
countries in the region, and at one time several years ago over 100,000 
people were employed in assembly jobs. Now, that number stands at just 
30,000, and regional and global economic conditions are quickly 
converging to eliminate any chance of Haiti reestablishing a foothold 
in the garment production market.
  Our window of opportunity to act expires at the end of the year, when 
quotas are phased out of the global market for textiles and apparel, 
and countries, such as China, are allowed to fully enter the market. In 
addition, Haiti has been largely left out of the Central American Free-
Trade Agreement negotiations, gaining only small concessions for 
coproduction with the Dominican Republic. These concessions are 
necessary but far from sufficient for creating jobs.
  I have traveled to Haiti 13 times, and there is no doubt that Haiti 
needs this opportunity. No other nation in our hemisphere is as 
impoverished. Today, at least 80 percent of all Haitians live in abject 
poverty, with at least 80 percent under- or unemployed. Per capita 
annual income is less than $400.
  No other nation in our hemisphere has a higher rate of HIV/AIDS. 
Today, AIDS is the No. 1 cause of all adult deaths in Haiti, killing at 
least 30,000 Haitians annually and orphaning 200,000 children.
  No other nation in our hemisphere has a higher infant mortality rate 
or a lower life expectancy rate.
  And, no other nation in our hemisphere is as environmentally 
strapped. Haiti is an ecological disaster, with a 98-percent 
deforestation level and extreme topsoil erosion.
  Despite this, U.S. assistance has reached its lowest level in over a 
decade. This needs to change. Haiti is in our backyard, inexorably 
linked to the United States by history, geography, humanitarian 
concerns, the illicit drug trade, and the ever-present possibility of 
waves of incoming refugees. Haiti's problems are our problems.
  In an environment such as this, foreign assistance is not enough to 
create economic opportunities, promote development, and reverse these 
dire conditions. Economic development is the answer, bringing with it 
lower unemployment, increased infrastructure development, and spillover 
effects for the rest of Haiti's population.
  This bill is not the ``silver bullet'' for Haiti, because there is no 
silver bullet. Rebuilding Haiti is going to require time, attention, 
and determination on the part of the people of Haiti, the countries in 
the region, and ultimately the entire international community. This 
bill would be a powerful indicator that Haiti has the support necessary 
to move forward. I encourage all of my colleagues to cosponsor this 
important piece of legislation.
  Mr. President, 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. 2261

       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 ``Haiti Economic Recovery 
     Opportunity Act of 2004''.

     SEC. 2. TRADE BENEFITS TO HAITI.

       (a) In General.--The Caribbean Basin Economic Recovery Act 
     (19 U.S.C. 2701 et seq.) is amended by inserting after 
     section 213 the following new section:

     ``SEC. 213A. SPECIAL RULE FOR HAITI.

       ``(a) In General.--In addition to any other preferential 
     treatment under this Act, beginning on October 1, 2003, and 
     in each of the 7 succeeding 1-year periods, apparel articles 
     described in subsection (b) that are imported directly into 
     the customs territory of the United States from Haiti shall 
     enter the United States free of duty, subject to the 
     limitations described in subsections (b) and (c), if Haiti 
     has satisfied the requirements set forth in subsection (d).
       ``(b) Apparel Articles Described.--Apparel articles 
     described in this subsection are apparel articles that are 
     wholly assembled or knit-to-shape in Haiti from any 
     combination of fabrics, fabric components, components knit-
     to-shape, and yarns without regard to the country of origin 
     of the fabrics, components, or yarns.
       ``(c) Preferential Treatment.--The preferential treatment 
     described in subsection (a), shall be extended--
       ``(1) during the 12-month period beginning on October 1, 
     2003, to a quantity of apparel articles that is equal to 1.5 
     percent of the aggregate square meter equivalents of all 
     apparel articles imported into the United States during the 
     12-month period beginning October 1, 2002; and
       ``(2) during the 12-month period beginning on October 1 of 
     each succeeding year, to a quantity of apparel articles that 
     is equal to the product of--
       ``(A) the percentage applicable during the previous 12-
     month period plus 0.5 percent (but not over 3.5 percent); and
       ``(B) the aggregate square meter equivalents of all apparel 
     articles imported into the United States during the 12-month 
     period that ends on September 30 of that year.
       ``(d) Eligibility Requirements.--Haiti shall be eligible 
     for preferential treatment under this section if the 
     President determines and certifies to Congress that Haiti--
       ``(1) has established, or is making continual progress 
     toward establishing--
       ``(A) a market-based economy that protects private property 
     rights, incorporates an open rules-based trading system, and 
     minimizes government interference in the economy through 
     measures such as price controls, subsidies, and government 
     ownership of economic assets;
       ``(B) the rule of law, political pluralism, and the right 
     to due process, a fair trial, and equal protection under the 
     law;
       ``(C) the elimination of barriers to United States trade 
     and investment, including by--
       ``(i) the provision of national treatment and measures to 
     create an environment conducive to domestic and foreign 
     investment;
       ``(ii) the protection of intellectual property; and
       ``(iii) the resolution of bilateral trade and investment 
     disputes;
       ``(D) economic policies to reduce poverty, increase the 
     availability of health care and educational opportunities, 
     expand physical infrastructure, promote the development of 
     private enterprise, and encourage the formation of capital 
     markets through microcredit or other programs;
       ``(E) a system to combat corruption and bribery, such as 
     signing and implementing the Convention on Combating Bribery 
     of Foreign Public Officials in International Business 
     Transactions; and
       ``(F) protection of internationally recognized worker 
     rights, including the right of

[[Page 5719]]

     association, the right to organize and bargain collectively, 
     a prohibition on the use of any form of forced or compulsory 
     labor, a minimum age for the employment of children, and 
     acceptable conditions of work with respect to minimum wages, 
     hours of work, and occupational safety and health;
       ``(2) does not engage in activities that undermine United 
     States national security or foreign policy interests; and
       ``(3) does not engage in gross violations of 
     internationally recognized human rights or provide support 
     for acts of international terrorism and cooperates in 
     international efforts to eliminate human rights violations 
     and terrorist activities.''.
       (b) Effective Date.--
       (1) In general.--The amendment made by subsection (a) 
     applies with respect to goods entered, or withdrawn from 
     warehouse for consumption, on or after October 1, 2003.
       (2) Retroactive application to certain entries.--
     Notwithstanding section 514 of the Tariff Act of 1930 (19 
     U.S.C. 1514) or any other provision of law, upon proper 
     request filed with the Customs Service before the 90th day 
     after the date of the enactment of this Act, any entry or 
     withdrawal from warehouse for consumption, of any goods 
     described in the amendment made by subsection (a)--
       (A) that was made on or after October 1, 2003, and before 
     the date of the enactment of this Act, and
       (B) with respect to which there would have been no duty if 
     the amendment made by subsection (a) applied to such entry or 
     withdrawal,

     shall be liquidated or reliquidated as though such amendment 
     applied to such entry or withdrawal.

                          ____________________